Preliminary questions about registration of a fabric pattern as trademark

Print this page 23-02-2018

Case C-21/18 Textilis. Request for a preliminary ruling. Patent- och marknadsöverdomstolen (Sweden). 


Trade mark law. Unofficial translation: "Preliminary questions: 

1. Must Article 4 of Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 207/2009 on the Community trade mark, [and of Regulation (EC) No 2868/95 on the implementation of Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the harmonization of laws applicable to the Office for Harmonization within the internal market (trade marks and designs)), thus interpreting that Article 7 (1) (e) (iii) applies in the new wording to a judicial assessment of nullity [in accordance with 52 (1) (a) of Regulation No 207/2009) which takes place after the amendment enters into force, namely after 23 March 2016, even if the procedure concerns an annulment and that procedure has started before that date and therefore pertains to a mark before that date is registered?


2. Must Article 7 (1) (e) (iii) of Regulation No 207/2009, in the applicable version, be interpreted as meaning that a sign consisting of the two-dimensional representation of a two-dimensional product falls within the scope, for example a fabric decorated with the sign in question?


3. If Question 2 is answered in the affirmative, according to which criteria must the words 'signs consisting exclusively of the shape (or any other characteristic which) give substantial value to the goods' in Article 7 (1) (e), (iii) of Regulation No 207/2009 are interpreted in a situation where the registration covers a wide range of goods classes and goods and in which the sign can be affixed to the goods in various ways? Should the assessment be made on the basis of more objective / general criteria, for example based on what the brand looks like and how it can be applied to different types of goods, that is, without taking into account the way in which the trademark owner possibly de facto signs the mark or intends to apply to different goods?"