Article 3(1)(e)(ii) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in order to establish whether a sign consists exclusively of the shape of goods which is necessary to obtain a technical result, assessment does not have to be limited to the graphic representation of that sign. Information other than that relating to the graphic representation alone, such as the perception of the relevant public, may be used in order to identify the essential characteristics of the sign at issue. However, while information which is not apparent from the graphic representation of the sign may be taken into consideration in order to establish whether those characteristics perform a technical function of the goods in question, such information must originate from objective and reliable sources and may not include the perception of the relevant public.
Article 3(1)(e)(iii) of Directive 2008/95 must be interpreted as meaning that the perception or knowledge of the relevant public as regards the product represented graphically by a sign that consists exclusively of the shape of that product may be taken into consideration in order to identify an essential characteristic of that shape. The ground for refusal set out in that provision may be applied if it is apparent from objective and reliable evidence that the consumer’s decision to purchase the product in question is to a large extent determined by that characteristic.
Article 3(1)(e)(iii) of Directive 2008/95 must be interpreted as meaning that the ground for refusal of registration provided for in that provision must not be applied systematically to a sign which consists exclusively of the shape of the goods where that sign enjoys protection under the law relating to designs or where the sign consists exclusively of the shape of a decorative item.
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“Gömböc”. IIC 51, 666–667 (2020). https://doi.org/10.1007/s40319-020-00950-x
- Refusal or invalidation of registration
- Three-dimensional mark
- Sign consisting exclusively of the shape of goods which is necessary to obtain a technical result
- Sign consisting of the shape which gives substantial value to the goods
- Consideration of the perception of the relevant public