(c) trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service (b) trade marks which are devoid of any distinctive character (a) signs which cannot constitute a trade mark The following shall not be registered or if registered shall be liable to be declared invalid: Article 3 of the Directive, which lists the grounds for refusal or invalidity of registration, provides: 'A trade mark may consist of any sign capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.'Ħ.
Article 2 of the Directive provides, under the heading 'Signs of which a trade mark may consist': However, according to the third recital in its preamble, the Directive is not intended to effect full-scale approximation of the laws of the Member States relating to trade marks.ĥ.
PHILIPS ELECTRONICS FREE
The purpose of the Directive is, as the first recital in its preamble states, to approximate the laws of the Member States on trade marks in order to remove existing disparities which may impede the free movement of goods and freedom to provide services and may distort competition within the common market.Ĥ. Those questions have arisen in a dispute between Koninklijke Philips Electronics NV ('Philips') and Remington Consumer Products Ltd ('Remington') concerning an action for infringement of a trade mark which Philips had registered on the basis of use under the Trade Marks Act 1938.ģ. By order of, received at the Court on 9 August 1999, the Court of Appeal (England and Wales) (Civil Division) referred for a preliminary ruling under Article 234 EC seven questions concerning the interpretation of Articles 3(1) and (3), 5(1) and 6(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. Banks, at the hearing on 29 November 2000,Īfter hearing the Opinion of the Advocate General at the sitting on 23 January 2001,ġ. Alexander, Barrister and of the Commission, represented by K. Wyand QC of the United Kingdom Government, represented by R. Hoyng of Remington Consumer Products Ltd, represented by S. Having regard to the Report for the Hearing,Īfter hearing the oral observations of Koninklijke Philips Electronics NV, represented by H. the Commission of the European Communities, by K.
Remington Consumer Products Ltd, by Lochners Technology Solicitors, Solicitors,
Hoyng, instructed initially by Eversheds Solicitors, and, subsequently, by Allen & Overy, Solicitors, Koninklijke Philips Electronics NV, by H. Louterman-Hubeau, Head of Division,Īfter considering the written observations submitted on behalf of: On the interpretation of Articles 3(1) and (3), 5(1) and 6(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. REFERENCE to the Court under Article 234 EC by the Court of Appeal (England and Wales) (Civil Division) (United Kingdom) for a preliminary ruling in the proceedings pending before that court between (Approximation of laws - Trade marks - Directive 89/104/EEC - Articles 3(1) and (3), 5(1) and 6(1)(b) - Signs capable of being trade marks - Signs consisting exclusively of the shape of the product)