CJEU on assessment of distinctive character of a sign consisting of coloured motifs on transport vehicles12-02-2021 Print this page
Assessment of distinctive character of a sign consisting of coloured motifs applied on transport vehicles: in particular, account should be taken of perception by the relevant public and not necessary to examine whether that sign departs significantly from the norm or customs of the economic sector concerned.
The appellant in the main proceedings is the proprietor of three figurative marks registered at the PRV for services provided by means of vehicles and transport services falling within Class 39 of the Nice Agreement. The marks are described as 'Colouring of vehicles in the colours red, white and orange, as shown'. The PRV rejected the applications on the ground that the signs were merely decorative, that they could not be perceived as signs capable of distinguishing the services covered by those applications and that they were therefore devoid of distinctive character.
The referring court asks whether Article 3(1)(b) of Directive 2008/95 must be interpreted as meaning that the distinctive character of a sign for which registration as a trade mark is sought, for a service, which consists of colour motifs and which is intended to be affixed exclusively and systematically in a specific manner to a large part of the goods used for the provision of that service, must be assessed in relation to those goods and by examining whether that sign departs significantly from the norm or customs of the economic sector concerned.
The CJEU considers that, when assessing the distinctive character of a sign consisting of colured motifs applied exclusively and systematically to the goods concerned, account must be taken in particular of the perception of the relevant public. The average consumer must be able to distinguish, without any confusion, the transport services provided by that undertaking and those provided by other undertakings.
In addition, the Court considers that the signs the signs in r
espect of which registration as trade marks is sought are not indissociable from the shape or packaging of those goods and nor is their purpose to represent the physical space in which the services are provided, so that, in assessing distinctiveness, it is not necessary to examine whether that sign departs significantly from the norm or customs of the economic sector concerned.