Case C-26/17 P. Birkenstock v EUIPO. Appeal. Opinion AG Szpunar.
Trade Mark Law. Opinion on the partial refusal of the pictured figurative mark of Birkenstock. The opinion is limited to the first part of the appeal, discussing mostly the criteria for the application of the strict requirements that are used in the assessment of distinctive character of signs that coincide with the appearance of the goods.
De AG considers that it is confirmed by the Court that case law regarding marks that coincide with the appearance of the goods, is applicable to marks that exist of patterns, but that the Court did not express itself explicitly on the degree of probability that needs to be determined to be able to regard a figurative mark consisting of a series of elements being repeated regularly as a surface pattern that coincided with the good.
The AG considers, following the General Court, that only when the use of a surface pattern with regard to the nature of the goods involved is unlikely, such a sign cannot be regarded as a surface pattern for the goods involved, causing that the case law developed with regard to three-dimensional marks that coincide with the appearance of the goods, is not applicable.
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