European Court of Justice 对绝对禁止注册商标范围的判例解释
European Court of Justice 对绝对禁止注册商标范围的判例解释
孙文杰
【关键词】ECJ interpretation, absolute grounds, refusal, CTM
【全文】
Case study: the European Court of Justice’s interpretations of absolute grounds for the refusal of Community Trade Mark
By
Sun Wenjie
The laws of trademark extending to the EU member states are implementing the Trade Mark Directive (First Council Directive of 21 December 1988). The Community Trade Mark (CTM) came into effect as a result of Council Regulation No 40/94 1993 (Regulation). Now the European Court of Justice (ECJ) offers the final solutions of the disputes related to CTMs. Dealing with the absolute grounds for the refusal of trademarks, its interpretations to the provisions of the Article 7 of Regulation and the similar to the Article 3 of TM Directive can be found out through the particular cases.
Distinctiveness of a CTM is defined in Article 4 of Regulation: “A Community trademark may consist of any signs 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.” This is also the definition of the CTM. The Article 7 (1) (b) of Regulation gives a further overlapping explanation that trademarks are not to be registered if they are devoid of distinctive character. Descriptive marks are, under the Article 7 (1) (c) of Regulation, as: “they consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of rendering the service, or other characteristics of the goods or service.” These marks are not to be registered as CTMs because of the descriptiveness.
