“SparkassenRed”

Authors: Oberbank AG C217/13 Banco Santander SA C218/13 Santander Consumer Bank AG C218/13 v Deutscher Sparkassen und Giroverband eV Directive 2008/95/EC Art 31 and 3

Publish Date: 2015/04/17

Volume: 46, Issue: 3, Pages: 370-371

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Abstract

Article 31 and 3 of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks 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 Where a Member State has not exercised the power laid down in the second sentence of Article 33 of Directive 2008/95 the first sentence of Article 33 of that directive must be interpreted as meaning that in the context of invalidity proceedings in respect of a mark which is intrinsically devoid of distinctive character in order to assess whether that mark has acquired a distinctive character through use it is necessary to examine whether such character was acquired before the date of filing of the application for registration of that mark It is irrelevant in that regard that the proprietor of the mark at issue maintains that the mark has in any event acquired a distinctive character through use after the date of filing of the application for registration but before the date of registration of that markWhere a Member State does not exercise the power laid down in the second sentence of Article 33 of Directive 2008/95 the first sentence of Article 33 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

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