IP case law Court of Justice

Referral C-21/18 (Textilis, 11 Jan 2018)

Is Article 4 of the European Parliament and Council Regulation (EU) 2015/2424 1 of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark, etc., to be interpreted as meaning that Article 7(1)(e)(iii), in its new wording, is applicable to a courts assessment of invalidity (under Article 52(1)(a) of the Trade Marks Regulation) that is made after the entry into force of the amendment, namely after 23 March 2016, even if the action concerns a declaration of invalidity where the action was brought before that date and therefore concerns a trade mark registered before that date?

Is Article 7(1)(e)(iii) of the Trade Marks Regulation, in the version applicable, to be interpreted as meaning that its scope covers a sign which consists of the two-dimensional representation of a two-dimensional product, for example fabric decorated with the sign in question?

If the answer to question 2 is in the affirmative, according to what principles is the wording signs which consist exclusively of the shape (or another characteristic) which gives substantial value to the goods in Article 7(1)(e)(iii) of the Trade Marks Regulation to be interpreted, in a situation where the registration covers a wide range of classes of goods and goods and the sign may be affixed in different ways to the goods? Is the assessment to be made in accordance with more objective/general criteria, for example with the starting point of how the mark appears and how it is possible to affix it to different goods, that is to say without regard to the manner in which the trade mark proprietor may de facto have affixed or may intend to affix the sign to various goods?

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