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The red colour of the sole of stilettos as a shape. A gloss to the judgment of the Court of Justice of 12 June 2018, C-163/16

trademark distinctive character colour shape Court of Justice

The present case is inspired by a judgment of the Court of Justice following a preliminary ruling by the national court of the Rechtbank Den Haag on whether the definition of ‘shape’ within the meaning of Article 3 1(e)(iii) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 intended to approximate the laws of the Member States relating to trade marks is limited to three-dimensional characteristics of the goods, such as the three-dimensional contours, size and volume of the goods, or does that provision also apply to characteristics of the goods other than threedimensional characteristics, such as colour. Furthermore, reference is also made to the condition of substantial increase in the value of the goods as grounds for refusal or invalidation under Article 3 of Directive 2008/95/EC. Two opinions of the Advocate General, which partially disagreed with the judgment of the Court, became important points for consideration of this issue. The opinion approves the Advocate General’s view that a trademark which combines signs such as shape and colour may be covered by the exceptions provided for in Article 3 of Directive 2008/95/EC. Moreover, as far as the substantial increase in the value of a sign is concerned, the mere fact that a sign has any aesthetic value should not exclude the protection of trademarks provided for in the directives of the European Parliament and of the Council and should be assessed by the court on an individual basis.

E-Wydawnictwo. Prawnicza i Ekonomiczna Biblioteka Cyfrowa. Wydział Prawa, Administracji i Ekonomii Uniwersytetu Wrocławskiego

doi:10.34616/144223 ISSN 2450-3932

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Folia Iuridica Wratislaviensis

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