C-49/02, Heidelberger Bauchemie
Issues:
Signs capable of constituting a trade mark.
Combinations of colours.
Trade mark concerned:
The colours blue and yellow as a trade mark for certain products used in the building trade.
Findings:
Colours or combinations of colours which are the subject of an application for registration as a trade mark, claimed in the abstract, without contours, and in shades which are named in words by reference to a colour sample and specified according to an internationally recognised colour classification system may constitute a trade mark for the purposes of Article 2 of the First Council Directive (89/104/EEC) of 21 December 1988 to approximate the laws of the Member States relating to trade marks where:
- it has been established that, in the context in which they are used, those colours or combinations of colours in fact represent a sign, and
- the application for registration includes a systematic arrangement associating the colours concerned in a predetermined and uniform way.
Even if a combination of colours satisfies the requirements for constituting a trade mark for the purposes of Article 2 of the Directive, it is still necessary for the competent authority for registering trade marks to decide whether the combination claimed fulfils the other requirements laid down, particularly in Article 3 of the Directive, for registration as a trade mark in relation to the goods or services of the undertaking which has applied for its registration. Such an examination must take account of all the relevant circumstances of the case, including any use which has been made of the sign in respect of which trade mark registration is sought. That examination must also take account of the public interest in not unduly restricting the availability of colours for other traders who market goods or services of the same type as those in respect of which registration is sought.
Judgment text:
C-49/02, Heidelberger Bauchemie.
Published:
OJ C 201, 07.08.2004, p. 2.