C-07/03P

Société de produits Nestlé SA - v - Unilever PLC

When considering signs which consist of the shape of the goods, what is meant by "the nature of the good themselves" in Art 3(1)(e) of the Trade Marks Directive 89/104? And in particular does that nature arise from:

• the specification of goods for which the trade mark is registered (or applied for);
• the kind of goods for which the mark is used regarded as articles of commerce;
• only the inherent nature of non - man made articles; or
• the shape of the goods which makes the product different in appearance from similar competitive products;
• something else, and if so what?

Where the shape of a product which has been on the market is merely shown to be recognised by a substantial proportion of the relevant public as denoting the goods of a particular trader id that sufficient of itself to prove that the shape has acquired a distinctive character within the meaning of Art 3(3) of the Directive?

If that is insufficient, must it also be proved that the shape is used and relied upon by the relevant public as a guarantee of trade origin?

If the preponderance of the public recognise a shape mark as the product of one trader but a significant minority also regard other shapes in use by other traders as the shape applied for, has the shape marked a "distinctive character" within the meaning of Art 3(3) of the Directive?