EU Court of Justice rules against referral to pre-determined percentages relating to the degree of recognition of the mark

With its decision rendered on 18 June 2014 (Joined Cases C-217/13 and C-218/13), the EU Court of Justice had the opportunity to clarify a set of crucial issues regarding the distinctive character of colour marks, in particular pertaining to: (i) the relevancy and scope of the possible referral to consumer surveys in the assessment of the mark’s distinctiveness acquired through use; (ii) the time when distinctive character must be proved to be existing in order to avoid a declaration of invalidity of the mark; and (iii) the party who has to bear the burden of proof with respect to the ascertainment of a distinctive character acquired through use.

The questions remitted to the EU court came from two pending German cases where a validity challenge was raised vis-à-vis a trademark consisting of a contourless red colour of a certain tone, registered for banking services by an established German bank…

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