Distinctive character through integration of contourless colour marks cannot be determined solely based on consumer survey

TRADE MARK LAW

Distinctive character through integration of contourless colour marks that cannot be determined solely based on consumer survey with a degree of recognition of at least 70%
 

"48. It follows from the foregoing that it is not possible to state in general terms, for example by referring to predetermined percentages relating to the degree of recognition attained by the mark within the relevant section of the public, when a mark has acquired a distinctive character through use and that, even with regard to contourless colour marks, such as the mark at issue in the main proceedings, and even if a consumer survey may be one of the factors to be taken into account when assessing whether such a mark has acquired a distinctive character through use, the results of a consumer survey cannot be the only decisive criterion to support the conclusion that a distinctive character has been acquired through use.
49 that Article 3(1) and (3) of Directive 2008/95 must be interpreted as precluding an interpretation of national law according to which, in the context of proceedings raising the question whether a contourless colour mark has acquired a distinctive character through use, it is necessary in every case that a consumer survey indicate a degree of recognition of at least 70%."

Trade mark kan be declared invalid when proprietor fails to show that distinctive character was acquired prior to application for registration
 

"74. In the light of the foregoing, the answer to the third question is that where a Member State does not exercise the power laid down in the second sentence of Article 3(3) of Directive 2008/95, the first sentence of Article 3(3) of that directive must be interpreted to the effect that it does not preclude, in the context of invalidity proceedings, the mark at issue from being declared invalid where it is intrinsically devoid of distinctive character and the proprietor of that mark has failed to show that it has acquired a distinctive character following the use which has been made of it before the date of filing of the application for registration."

IPPT20140619, CJEU, Oberbank en Santander Consumer Bank v DSGV

C217/13 and C218/13 - ECLI:EU:C:2014:2012