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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> BVBA Management, Training en Consultancy (Law relating to undertakings) [2007] EUECJ C-239/05 (15 February 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C23905.html Cite as: [2007] ECR I-1455, [2007] ETMR 35, [2007] EUECJ C-239/05, [2007] EUECJ C-239/5 |
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(Trade marks Directive 89/104/EEC Application for registration of a trade mark for a range of goods and services Examination of the sign by the competent authority Taking account of all the relevant facts and circumstances Jurisdiction of the national court seised of an action)
In Case C-239/05,
REFERENCE for a preliminary ruling under Article 234 EC from the Hof van beroep te Brussel (Belgium), made by decision of 30 May 2005, received at the Court on 3 June 2005, in the proceedings
BVBA Management, Training en Consultancy
Benelux-Merkenbureau,
composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, P. Kūris (Rapporteur), G. Arestis and L. Bay Larsen, Judges,
Advocate General: E. Sharpston,
Registrar: R. Grass,
having regard to the written procedure,
after considering the observations submitted on behalf of:
Benelux-Merkenbureau, by L. de Gryse and B. Dauwe, advocaten,
the German Government, by M. Lumma, acting as Agent,
the Commission of the European Communities, by N. Rasmussen and H. van Vliet, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 6 July 2006,
gives the following
Legal context
Community legislation
'1. The following shall not be registered or if registered shall be liable to be declared invalid:
...
(b) trade marks which are devoid of any distinctive character;
(c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods;
...
3. A trade mark shall not be refused registration or be declared invalid in accordance with paragraph 1(b), (c) or (d) if, before the date of application for registration and following the use which has been made of it, it has acquired a distinctive character. Any Member State may in addition provide that this provision shall also apply where the distinctive character was acquired after the date of application for registration or after the date of registration.
...'
'Where grounds for refusal of registration or for revocation or invalidity of a trade mark exist in respect of only some of the goods or services for which that trade mark has been applied for or registered, refusal of registration or revocation or invalidity shall cover those goods or services only.'
National legislation
'The following may be registered as individual marks: names, designs, imprints, stamps, letters, numerals, the shape of goods or their packaging, and any other signs which serve to distinguish the goods of an undertaking.
...'
'1. The Benelux Trade Mark Office shall refuse registration where it considers that:
(a) the sign filed does not constitute a trade mark within the meaning of Article 1, in particular because it is devoid of any distinctive character, as provided for in Article 6quinquies B(2) of the Paris Convention;
...
2. The refusal to register must relate to the sign that constitutes the trade mark in its entirety. It may be confined to one or more of the goods for which the mark is intended to be used.
3. The Benelux Office shall inform the applicant without delay and in writing of its intention to refuse registration in whole or in part, shall state the grounds and shall allow him a right to respond within a period of time to be laid down in the implementing regulation.
4. If the objections of the Benelux Office to registration have not been removed within the period granted, registration of the filing shall be refused in whole or in part. The Benelux Office shall notify the applicant without delay and in writing, stating the grounds for refusal and advising of the possibility of review of the decision set out in Article 6ter.
...'
'The applicant may, within two months following notification under Article 6bis[4], file at the Cour d'appel, Brussels, the GerechtsHof at The Hague or the Cour d'appel, Luxembourg, an application for an order that the filing be registered. ...'
The dispute in the main proceedings and the questions referred for a preliminary ruling
'(1) Is the trade mark authority required, after its examination of all relevant facts and circumstances concerning an absolute ground of refusal, to state in its provisional and in its definitive decision on the application [for registration of a trade mark] its conclusion in regard to each of the goods and services separately in respect of which trade mark protection is sought?
(2) May the relevant facts and circumstances to be taken into account by the adjudicating authority in the event of an appeal against the decision of the trade mark authority be different as a result of a lapse of time between the two [ ] decisions [ ] or must the adjudicating authority only take account of such facts and circumstances as were available at the moment when the trade mark authority made its decision?
(3) Does the interpretation by the Court ... in [Koninklijke KPN Nederland] preclude national legislation in regard to the competence of the adjudicating authority from being construed as meaning that that authority is prevented from taking account of any alteration in the relevant facts and circumstances or from ruling on the distinctive character of the mark for each of the goods and services [individually]?'
The questions referred for a preliminary ruling
Question 1
Observations submitted to the Court
Findings of the Court
The second part of the third question
Observations submitted to the Court
Findings of the Court
The second question and the first part of the third question
Admissibility
Observations submitted to the Court
Findings of the Court
Costs
On those grounds, the Court (Second Chamber) hereby rules:
First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that:
when refusing registration of a trade mark, the competent authority is required to state in its decision its conclusion for each of the individual goods and services specified in the application for registration, regardless of the manner in which that application was formulated. However, where the same ground of refusal is given for a category or group of goods or services, the competent authority may use only general reasoning for all of the goods or services concerned;
it does not preclude national legislation which prevents the court reviewing the decision of the competent authority from ruling on the distinctive character of the mark separately for each of the individual goods and services specified in the trade mark application, where neither that decision nor that application related to categories of goods or services or goods or services considered separately;
it does not preclude national legislation which prevents the court reviewing a decision of the competent authority from taking account of facts and circumstances which arose after that decision had been taken.
[Signatures]
* Language of the case: Dutch.