Exclusion of for a technical result necessary shape of goods refers only to the manner in which the goods are manufactured

TRADE MARK LAW
 

For the annulment of a shape it has to be covered by one or more grounds of refusal.

"Accordingly, it is possible that the essential features of a sign may be covered by one or more grounds of refusal set out under Article 3(1)(e) of Directive 2008/95. However, in such a case, registration may be refused only where at least one of those grounds is fully applicable to the sign at issue.
49 The public interest objective underlying the application of the three grounds for refusal of registration set out in Article 3(1)(e) of Directive 2008/95 precludes refusal of registration where none of those three grounds is fully applicable (judgment in Hauck, C‑205/13, EU:C:2014:2233, paragraph 42).
Having regard to all the foregoing considerations, the answer to the second question referred is that Article 3(1)(e) of Directive 2008/95 must be interpreted as precluding registration as a trade mark of a sign consisting of the shape of goods where that shape contains three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result, provided, however, that at least one of the grounds for refusal of registration set out in that provision is fully applicable to the shape at issue."

Exclusion of a for a technical result necessary shape of goods, must be interpreted as referring only to the manner in which the goods are manufactured.

"It follows from the foregoing that the answer to the third question is that Article 3(1)(e)(ii) of Directive 2008/95, under which registration may be refused of signs consisting exclusively of the shape of goods which is necessary to obtain a technical result, must be interpreted as referring only to the manner in which the goods at issue function and it does not apply to the manner in which the goods are manufactured."

Integration: applicant must prove that the relevant class of persons perceive the goods or services designated exclusively by the mark applied for as originating from a particular company.

"Having regard to those considerations, the answer to the first question is that, in order to obtain registration of a trade mark which has acquired a distinctive character following the use which has been made of it within the meaning of Article 3(3) of Directive 2008/95, regardless of whether that use is as part of another registered trade mark or in conjunction with such a mark, the trade mark applicant must prove that the relevant class of persons perceive the goods or services designated exclusively by the mark applied for, as opposed to any other mark which might also be present, as originating from a particular company."

IPPT20150916, CJEU, Nestlé v Cadbury

C-215/14 - ECLI:EU:C:2015:604