Harmonization of Intellectual Property Law in Europe: The European Court of Justice’s Trade Mark Case Law 2004–2007

Abstract

The article gives an overview of the European Court of Justice’s (ECJ’s) Trade Mark Case Law from 2004 to 2007. Particular attention is paid to the further development of the Community Trade Mark system; besides, judgments concerning the interpretation of the Trade Mark Directive, and in particular the interface between national trade marks and the Community trade mark system are covered. As for the ECJ’s case law, a wide range of legal questions is covered. Seminal judgments have been rendered with regard to the absolute grounds for refusal, concerning in particular the problematic issues of trade mark protection for abstract colours or colour combinations and three-dimensional-shapes. In the last years, moreover, the focus of the ECJ’s case law in the field of trade marks has more and more shifted from the absolute grounds for refusal to the relative grounds for refusal, and to the concepts of genuine, infringing and descriptive use. As a result, the ECJ has by now rendered leading decisions on almost all problematic and relevant issues in trade mark law. However, the author argues that although the basic concepts underpinning this case law are sound and stable, the ECJ sometimes falls short of their proper concretization and remains at a rather abstract level of legal assessment. Consequently, the author argues in favour of an even more interfering and active role of the ECJ which would certainly substantially contribute to a coherent development in the future.