Court of First Instance correctly found that the BSS mark had become customary for the target public concerned and the use made of the mark had not been able to confer distinctive character on it: Not the descriptive nature of the mark was decisive, but the current usage in the sectors covering trade in those goods
"28. In considering that the BSS mark consisted exclusively of signs or indications which had become customary in the current language of the target public to designate the goods for which that mark had been registered, and that it had been lawfully declared invalid on that ground by the contested decision, the Court of First Instance correctly pointed out, in paragraph 39 of the judgment under appeal, that it was not the descriptive nature of the mark that was decisive but current usage in the sectors covering trade in those goods (see, with respect to the essentially identical provisions of Article 3(1)(d) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Merz & Krell, paragraph 35).
31. The legal context of the dispute having thus been correctly determined, the Court of First Instance, analysing the evidence produced by the appellant and the intervener respectively, considered that all that evidence showed that the BSS mark had become customary for the target public concerned and that the use made of the mark had not been able to confer distinctive character on it."
IPPT20041005, ECJ, Alcon v OHIM
C-192/03 P - ECLI:EU:C:2004:587
