Case C-421/13, Apple – seeking trade mark protection for the layout and design of a retail store

Is the layout and design of a shop capable of being protected by EU trade mark law? And if so, then what conditions should be attached to prevent a right holder from invoking their monopoly against the stores of their competitors?

Facts
Apple registered a three-dimensional international trade mark for ‘steel grey and light brown’ in Class 35 (Retail store services featuring computers, computer software, computer peripherals, mobile phones, consumer electronics and related accessories, and demonstration of products relating thereto). The mark’s description added, ‘The mark consists of distinctive design and layout of a retail store.’

Apple applied to the German patent and trade mark office to have this trade mark protection extended to cover Germany. Its request was refused, however. The office took the view that for Class 35 the mark lacked distinctiveness. Admittedly, the pictorial representations of shops and sales points were important means for securing the sale of goods but such representations had been developed in ways which had nothing to do with any one particular company. Furthermore, Apple’s pictorial representation did not differ substantively from the layouts found in any of the other shops and suppliers in the electronics sector – any differences were really attributable to the fact that the large electrical stores stocked a greater variety and quantity of goods. The office also remarked that the logos and trademarks in stores indicated which sales areas belonged to a particular company – consequently, the layout of a shop was designed to direct consumers according to quality and price rather than whether the goods and services being sold originated from a particular company. Accordingly, Apple’s application to extend its mark to cover Germany was refused.

Apple not only appealed the decision of the German patent and trade mark office but it also amended the mark by considerably expanding the mark’s description to include such things as ceiling design, lighting, and the use of light-brown rectangular tables in the middle of the shop.

The appeal was heard by a three-judge chamber of Germany’s Federal Patent Court that deals with appeals from the German patent and trade mark office. The judges were stymied by the fact that German statute failed to provide an answer as to whether the layout of a shop which sold services was even capable of protection as a three-dimensional mark under trade mark law. German case law also failed to provide them with any positive answer on that point.

The judges realised that the success of Apple’s appeal turned on the correct interpretation which should be given to Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks.

The first issue facing the judges was whether the Directive could really be read as protecting a layout in which a service was incorporated? The German judges thought it might. They found support for this view on the basis of the CJEU’s judgment in Case C-344/10P, Freixenet – which could be read as capable of granting protection if there were clear differences between Apple’s layout and those found in rival stores. The key issue was whether a pictorial representation was capable of constituting ‘a sign’ as defined in Article 2 of the Directive.

Article 2 covers ‘Signs of which a trade mark may consist’. The Article provides:

A trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.

However, this Article could be read in two, divergent, ways. On the one hand, Article 2 did not really define a ‘sign’, and the Article made no mention of the packaging of a service. That fact could be interpreted as a deliberate choice on the part of the legislature to exclude the presentation of a service from the scope of protection – after all, services by their very nature did not readily lend themselves to being packaged. The result would be no protection.

On the other hand, it might be said that a lorry could incorporate the provision of transport services. In that context, the German judges realised that there were instances in case law in which the CJEU had brought some ‘unconventional’ signs within the scope of Article 2 of the Directive. Clearly, there was some ‘wiggle room’ in the wording of Article 2. Equally, there could be a policy reason for not excluding Apple’s services from the scope of Article 2 since a refusal to grant protection would surely be contrary to the avowed aim of the Directive to give goods and services uniform and equal chances to participate in the market. In view of the latest version of the Directive, therefore, the judges felt that the packaging of the services was comparable to those of goods, and was thus within the scope of Article 2 of the Directive. Nevertheless, the judges decided to ask the advice of the CJEU on this point.

If the German judges were right that the packaging of goods could be extended to cover services, then the next issue to perplex them was whether Articles 2 and 3(1) of the Directive could be interpreted to mean that a sign representing the layout in which the service was incorporated, was in fact capable of being registered as a trade mark. In other words, was Apple’s application for extending the protection of the contested mark contrary to the grounds for refusing trade mark protection expressed in Article 3?

In particular, Article 3 stops marks being registered (or allows them to be declared invalid) for:

(e) signs which consist exclusively of:
(i) the shape which results from the nature of the goods themselves;
(ii) the shape of goods which is necessary to obtain a technical result;
(iii) the shape which gives substantial value to the goods;

Admittedly, Article 3(1)(e) applied to goods but potentially it could also apply to services so the German judges wanted to know from the CJEU which conditions should be attached to this provision because otherwise service providers who owned a trade mark in their shop format could in effect invoke their monopoly against their competitors.

The German judges explained the dilemma to the CJEU. On the one hand, the pictorial representation of a shop might be thought to escape the scope of a ground for refusing a mark since the shape of a store’s layout was but one of the many conceivable forms a retail shop could take, and by itself the shape of a store’s layout was not determined by the the sort itself. Equally, there appeared to be nothing in sub-paragraph (ii) to suggest that protection should not be granted to layouts and display cases or indeed a checkout for they could not be said to be the ‘technical result’ of a retail shop. However, the application of sub-paragraph (iii) was not completely clear since there was an abundance of literature on how the layout of a shop played a role in the quality of the purchase – and so for this reason the judges decided to ask a question on this point too.

The third issue to trouble the German judges was what to make of Article 2’s reference to ‘A trade mark may consist of any signs capable of being represented graphically’. Although the CJEU’s judgment in Case C-273/00, Sieckmann seemed relevant, the function of the graphic representability requirement had not been considered in the context of services. The German judges were minded to allow a sketch depicting a store and drawn in perspective as a suitable form of layout, particularly if the scope of the protection of the sign would be clear. In that context, the judges felt that the drawing should not only indicate the scale of the sales area but also how the constituent elements of the sales area should be organised in relation to each other. In this way, the scope of the trade mark protection could be made clear.

If that approach was right, then Apple’s plan would be said to lack sufficient clarity and precision. The perspective drawing did not indicate the absolute size of the shop. Equally, when it came to the constituent parts of how the shop was divided up, the sketch was unclear on how those parts stood in relation to each other. Consequently, the spatial drawing lacked the requisite degree of clarity and precision to constitute a sign – an expert in technical drawings might be able to determine the precise distances between the component parts in a store but the average viewer would only be able to estimate the relative scale of proportions. The German judges felt that to give that sense of proportion, a scale, for example in metres and centimetres, should really be used.

The final issue of concern to the German judges was whether the scope of trade mark protection offered to a retail trade mark could cover the retailer’s own goods. The German judges felt that this issue had not been addressed either by the CJEU or in German law. However, the CJEU’s ruling in Case C-418/02, Praktiker had been interpreted by writers such as Ströbele and Fuchs to mean that goods should primarily originate from other companies in order to enjoy protection in trade mark law. Thus, where a company sells its own goods, any service only helps the production of goods – goods which may already be protected by trade mark law. According to an article written by Grabrucker (who was also one of the judges in the referring court), trade mark law should not permit any doubling of protection. In light of this academic commentary, the German judges were minded to agree that only the retail sale of goods originating from other companies should be capable of being protected in trade mark law.

Questions Referred
According to the website of the UK Intellectual Property Office, the German Patent Court has asked:

1. Is article 2 of the Directive to be interpreted as meaning that the possibility of protection for the ‘packaging of goods’ also extends to the layout in which a service is incorporated?
2. Are Articles 2 and 3(1) of the Directive to be interpreted as meaning that a sign representing the layout in which the service is incorporated is capable of being registered as a trade mark?
3. Is Article 2 of the Directive to be interpreted as meaning that the requirement of graphic representability is satisfied by a drawn representation alone or with such additions as a description of the layout or indications of absolute dimensions in metres or of relative dimensions with indications as to proportions?
4. Is Article 2 of the Directive to be interpreted as meaning that the scale of the protection afforded by a trade mark for retail services also extends to the goods produced by the retailer itself?

Comment
This chamber of the German Patent Court simultaneously made a reference in another trade mark case which involved the issue of whether a retail shop in services could possibly be a service within the context of Article 2 of the Directive, see further, Case C-420/13, Netto Marken Discount – trade mark protection for retailers trading in services?

The problematic linkage between EU trade mark law and services is at issue in two other references which have been made by a different chamber of the German Patent Court, see further, Case C-217/13, Oberbank – seeing trade marked red in financial affairs.

And the correct interpretation which is to be given to the Article 3(1)(e) exclusions to trade mark protection is also the subject of a recent reference from the Dutch courts, see further, Case C-205/13, Hauck – the evolving shape of trade mark law.

Update – 9 April 2014
The Third Chamber is scheduled to hear this case on 30 April 2014, two hours after having heard Case C-420/13, Netto Marken Discount.

Update – 16 June 2014
The judgment of the Third Chamber is scheduled for 10 July 2014, which is the same day as the judgment in Netto Marken Discount.

Update – 6 August 2014
Judgment

A version of the CJEU’s judgment in Case C-421/13, Apple ECLI:EU:C:2014:2070 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

 

JUDGMENT OF THE COURT (Third Chamber)

10 July 2014 ( )

(Request for a preliminary ruling — Trade marks — Directive 2008/95/EC — Articles 2 and 3 — Signs capable of constituting a trade mark — Distinctive character — Representation, by design, of the layout of a flagship store — Registration as a trade mark for ‘services’ connected with the products on sale in such a store)

In Case C‑421/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundespatentgericht (Germany), made by decision of 8 May 2013, received at the Court on 24 July 2013, in the proceedings

Apple Inc.

v

Deutsches Patent- und Markenamt,

THE COURT (Third Chamber),

composed of M. Ilešič (Rapporteur), President of the Chamber, C.G. Fernlund, A.Ó Caoimh, C. Toader and E. Jarašiūnas, Judges,

Advocate General: M. Wathelet,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 30 April 2014,

after considering the observations submitted on behalf of:

–        Apple Inc., by V. Schmitz-Fohrmann and A. Ruge, Rechtsanwälte,

–        the French Government, by D. Colas and F.-X. Bréchot, acting as Agents,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, by F.W. Bulst and E. Montaguti, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Articles 2 and 3 of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).

2        This request has been made in proceedings between Apple Inc. (‘Apple’) and the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office, ‘the DPMA’) concerning the latter’s rejection of an application for registration of a trade mark.

 Legal context

 European Union Law

3        Article 2 of Directive 2008/95 provides:

‘A trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.’

4        Under Article 3(1) of the directive:

‘The following shall not be registered or, if registered, shall be liable to be declared invalid:

(b)      trade marks which are devoid of any distinctive character;

(c)      trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services;

(d)      trade marks which consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade;

(e)       signs which consist exclusively of:

(i)       the shape which results from the nature of the goods themselves;

(ii)       the shape of goods which is necessary to obtain a technical result;

(iii)       the shape which gives substantial value to the goods;

…’

5        The wording of Articles 2 and 3 of Directive 2008/95 corresponds with that of Articles 2 and 3 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), which was repealed and replaced by Directive 2008/95 with effect from 28 November 2008.

 German law

6        Paragraph 3(1) of the Law on the protection of trade marks and other distinctive signs (Gesetz über den Schutz von Marken und sonstigen Kennzeichen (Markengesetz)) of 25 October 1994, (BGBl. 1994 I, p. 3082, the ‘MarkenG’), corresponds in substance with Article 2 of Directive 2008/95. Paragraph 3(2) provides:

‘Any sign which consists exclusively of a shape:

1.      which results from the nature of the goods themselves,

2.      which is necessary to obtain a technical result, or

3.      which gives substantial value to the goods

shall not be capable of being protected as a trade mark.’

7        Paragraph 8 of that law states as follows:

‘(1)  Signs that are worthy of protection within the meaning of Paragraph 3 which cannot be represented graphically shall not be registered as a trade mark.

(2)      The following shall not be registered as a trade mark:

1.      trade marks which are devoid of any distinctive character in relation to the goods or services concerned;

2.      trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of the rendering of the service, or other characteristics of the goods or service.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

8        On 10 November 2010, Apple obtained from the United States Patent and Trademark Office the registration of a three-dimensional trade mark consisting of the representation, by a design in colour (in particular, metallic grey and light brown), of its flagship stores for services within the meaning of Class 35 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks adopted during the diplomatic conference of Nice on 15 June 1957 and last revised at Geneva on 13 May 1977 and modified on 28 September 1979 (United Nations Treaty Series, Vol. 1154, No I‑18200, p. 89, the ‘Nice Agreement’), namely for ‘retail store services featuring computers, computer software, computer peripherals, mobile phones, consumer electronics and related accessories and demonstrations of products relating thereto’.

9        That representation, described by Apple as ‘the distinctive design and layout of a retail store’, is as follows:

Image not found

10      Subsequently, Apple sought to extend this trade mark internationally under the Madrid Agreement concerning the International Registration of Marks of 14 April 1891, as revised and amended most recently on 28 September 1979 (United Nations Treaty Series, Vol. 828, No I‑11852, p. 390). That extension was accepted in some States and refused in others.

11      On 24 January 2013, the DPMA refused the extension of that three-dimensional international trade mark (IR 1060321) to German territory on the ground that the depiction of the space devoted to the sale of the undertaking’s products was nothing other than the representation of an essential aspect of that undertaking’s business. The DPMA considered that while it is true that consumers may perceive the layout of such a retail space as an indication of the quality and price bracket of the products, they would not see it as an indication of their commercial origin. Besides, it considered that the retail store depicted in the case before it was not sufficiently distinguishable from the stores of other providers of electronic products.

12      Apple appealed to the Bundespatentgericht against the DPMA’s refusal decision.

13      That court considers that the layout depicted by the three-dimensional trade mark, reproduced in paragraph 9 of this judgment, has features that distinguishes it from the usual layout of retail stores in that electronic sector.

14      Nevertheless, taking the view that the dispute before it raises more fundamental questions concerning trade mark law, the Bundespatentgericht decided to stay the proceedings and to refer the following questions to the Court of Justice:

‘(1)       Is Article 2 of Directive [2008/95] to be interpreted as meaning that the possibility of protection for the ‘packaging of goods’ also extends to the presentation of the establishment in which a service is provided?

(2)      Are Articles 2 and 3(1) of Directive [2008/95] to be interpreted as meaning that a sign representing the presentation of the establishment in which a service is provided is capable of being registered as a trade mark?

(3)       Is Article 2 of Directive [2008/95] to be interpreted as meaning that the requirement for graphic representability is satisfied by a representation by a design alone or with such additions as a description of the layout or indications of the absolute dimensions in metres or of relative dimensions with indications as to proportions?

(4)      Is Article 2 of Directive [2008/95] to be interpreted as meaning that the scale of the protection afforded by a trade mark for retail services also extends to the goods produced by the retailer itself?’

 The questions referred

 The first to third questions

15      As a preliminary matter, it should pointed that, as is clear from the order for reference, the terms ‘presentation of the establishment in which a service is provided’ used in the first and second questions, refer to the circumstance that Apple requests the registration as a trade mark of a sign consisting of the depiction of its flagship stores for services which, according to Apple, fall within Class 35 of the Nice Agreement and comprise various services aimed at inducing the consumer to purchase its products.

16      Therefore, by its first to third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 2 and 3 of the Directive 2008/95 must be interpreted as meaning that the representation, by a design alone, without indicating the size or the proportions, of the layout of a retail store may be registered as a trade mark for services which comprise various services aimed at inducing the consumer to purchase the products of the applicant for registration and, if so, whether such a ‘presentation of the establishment in which a service is provided’ may be treated in the same way as ‘packaging.’

17      It should be recalled at the outset that, in order to be capable of constituting a trade mark for the purposes of Article 2 of Directive 2008/95, the subject-matter of any application for registration must satisfy three conditions. First, it must be a sign. Secondly, that sign must be capable of graphic representation. Thirdly, the sign must be capable of distinguishing the ‘goods’ or ‘services’ of one undertaking from those of other undertakings (see, as regards Article 2 of Directive 89/104, Libertel, C‑104/01, EU:C:2003:244, paragraph 23; Heidelberger Bauchemie, C‑49/02, EU:C:2004:384, paragraph 22; and, Dyson, C‑321/03, EU:C:2007:51, paragraph 28).

18      It is absolutely plain from the wording of Article 2 of Directive 2008/95 that designs are among the categories of signs capable of graphic representation.

19      It follows that a representation, such as that at issue in the main proceedings, which depicts the layout of a retail store by means of an integral collection of lines, curves and shapes, may constitute a trade mark provided that it is capable of distinguishing the products or services of one undertaking from those of other undertakings. Consequently, such a representation satisfies the first and second conditions referred to at paragraph 17 of this judgment, without it being necessary either, on the one hand, to attribute any relevance to the fact that the design does not contain any indication as to the size and proportions of the retail store that it depicts, or, on the other hand, to examine whether such a design could equally, as a ‘presentation of the establishment in which a service is provided’, be treated in the same way as ‘packaging’ within the meaning of Article 2 of Directive 2008/95.

20      The representation, by a design, of the layout of a retail store is also capable of distinguishing the products or services of one undertaking from those of other undertakings and, hence, satisfying the third condition referred to at paragraph 17 of this judgment. In that regard, it suffices to observe that it cannot be ruled out that the layout of a retail outlet depicted by such a sign may allow the products or the services for which registration is sought to be identified as originating from a particular undertaking. As the French Government and the Commission have submitted, this could be the case when the depicted layout departs significantly from the norm or customs of the economic sector concerned (see, by analogy, as to signs consisting of the appearance of the product itself, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 28, and Vuitton Malletier v OHIM, C‑97/12 P, EU:C:2014:324, paragraph 52).

21      The fact that a sign is, in general, capable of constituting a trade mark within the meaning of Article 2 of Directive 2008/95 does not mean, however, that the sign necessarily has a distinctive character for the purposes of Article 3(1)(b) of the directive in relation to the products or services for which registration is sought (see, in relation to Articles 4 and 7 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), the content of which corresponds with that of Articles 2 and 3 of Directive 2008/95, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 32, and OHIM v BORCO-Marken-Import Matthiesen, C‑265/09 P, EU:C:2010:508, paragraph 29).

22      The distinctive character of the sign must be assessed in concreto by reference to, first, the goods or services in question and, second, the perception of the relevant public, namely the average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect (see, in particular, Linde and Others, C‑53/01 to C‑55/01, EU:C:2003:206, paragraph 41; Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 34; and OHIM v BORCO-Marken-Import Matthiesen, EU:C:2010:508, paragraphs 32 and 35).

23      It is also by an assessment in concreto that the competent authority must determine whether or not the sign is descriptive of the characteristics of the goods or services concerned within the meaning of Article 3(1)(c) of Directive 2008/95 or gives rise to any other ground listed also in Article 3 for the refusal of registration (Koninklijke KPN Nederland, EU:C:2004:86, paragraphs 31 and 32).

24      With the exception of Article 3(1)(e) of the directive, which exclusively covers signs for which registration is sought consisting of the shape of the goods and is thus irrelevant for the resolution of the dispute in the main proceedings, the provisions of Article 3(1), such as subparagraphs (b) and (c), make no explicit distinction between different categories of trade mark (see to that effect, Linde and Others, EU:C:2003:206, paragraphs 42 and 43). It follows that the assessment criteria that must be used by the competent authority when it applies the latter provisions to signs consisting of a design depicting the layout of a retail store do not differ from those used for other types of sign.

25      Finally, as regards the question, which is also critical for the resolution of the dispute in the main proceedings and which was debated at the hearing in response to a question inviting an oral response which was posed by the Court, namely whether services intended to induce the consumer to purchase the products of the applicant for registration can constitute ‘services’ within the meaning of Article 2 of Directive 2008/95 for which a sign, such as that at issue in the main proceedings, may be registered as a trade mark, Apple submits that such is the case and refers to the distinction that the Court has already made between the sale of goods, on the one hand, and services, falling within the concept of ‘service’, intended to induce that sale, on the other hand (Praktiker Bau- und Heimwerkermärkte, C‑418/02, EU:C:2005:425, paragraphs 34 and 35). By contrast, the Commission considers that this case-law cannot be transposed to a situation, such as that arising in the main proceedings, in which the sole objective of those services is to induce the consumer to purchase the products of the applicant for trade mark registration itself.

26      In this regard, it must be held that, if none of the grounds for refusing registration set out in Directive 2008/95 preclude it, a sign depicting the layout of the flagship stores of a goods manufacturer may legitimately be registered not only for the goods themselves but also for services falling within one of the classes under the Nice Agreement concerning services, where those services do not form an integral part of the offer for sale of those goods. Certain services, such as those referred to in Apple’s application and clarified by Apple during the hearing, which consist of carrying out, in such stores, demonstrations by means of seminars of the products that are displayed there, can themselves constitute remunerated services falling within the concept of ‘service’.

27      In the light of all the foregoing considerations, the answer to the first to third questions is that Articles 2 and 3 of Directive 2008/95 must be interpreted as meaning that the representation, by a design alone, without indicating the size or the proportions, of the layout of a retail store, may be registered as a trade mark for services consisting in services relating to those goods but which do not form an integral part of the offer for sale thereof, provided that the sign is capable of distinguishing the services of the applicant for registration from those of other undertakings and that registration is not precluded by any of the grounds for refusal set out in that directive.

 The fourth question

28      As is clear from paragraphs 26 and 27 of this judgment, Directive 2008/95 does not preclude the registration of a sign for services which are connected with the goods of the applicant for registration.

29      The question as to the scale of the protection granted by such a trade mark, on the other hand, as Apple and the Commission have submitted, manifestly bears no relation to the subject-matter of the main proceedings, which are concerned exclusively with the refusal by the DPMA to register the sign reproduced in paragraph 9 above as a trade mark.

30      Consequently, in view of the Court’s settled case-law, according to which a request for a preliminary ruling from a national court must be rejected where it appears to be quite obvious that the interpretation of Union law sought bears no relation to the facts or purpose of the main proceedings (see, inter alia, Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 25, and Jakubowska, C‑225/09, EU:C:2010:729, paragraph 28), the fourth question must be declared inadmissible.

 Costs

31      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Articles 2 and 3 of Directive 2008/95 of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the representation, by a design alone, without indicating the size or the proportions, of the layout of a retail store, may be registered as a trade mark for services consisting in services relating to those goods but which do not form an integral part of the offer for sale thereof, provided that the sign is capable of distinguishing the services of the applicant for registration from those of other undertakings; and, that registration is not precluded by any of the grounds for refusal set out in that directive.

[Signatures]


Language of the case: German.