Adidas v H&M - the official questions

At last, the official English version! In a dispute that concerns all stripe-wearing kats, Case C-102/07 is a reference for a preliminary ruling from the Hoge Raad der Nederlanden in the exciting contest of Adidas AG and Adidas Benelux BV v Marca Mode, C&A Nederland, H&M Hennes & Mauritz Netherlands BV and Vendex KBB Nederland BV. The issue at the heart of this dispute is the scope of protection that Adidas is entitled to enjoy in its three-stripe motif against a trader that insists on using two stripes for what are apparently decorative purposes. The IPKat's friend Gino van Roeyen sent him a rough and ready version of the questions when the reference was made (see earlier IPKat posts here and here), but the official English version of the questions referred by the Hoge Raad is now available:

"In the determination of the extent to which protection should be given to a trade mark formed by a sign which does not in itself have any distinctive character or by a designation which corresponds to the description in Article 3(1)(c) of Directive 89/104 but which has become a trade mark through the process of becoming customary and has been registered, should account be taken of the general interest in ensuring that the availability of given signs is not unduly restricted for other traders offering the goods or services concerned (the requirement of availability)?

If the answer to Question 1 is in the affirmative: does it make any difference whether the signs which are referred to therein and which are to be held available are seen by the relevant public as being signs used to distinguish goods or merely to embellish them?

If the answer to Question 1 is in the affirmative: does it, further, make any difference whether the sign contested by the holder of a trade mark is devoid of distinctive character, within the terms of Article 3(1)(b) of Directive 89/104, or contains a designation, within the terms of Article 3(1)(c) of the Directive?".

To remind readers, Articles 3(1)(b) and (c) of Directive 89/104 say

"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".

The bit of the IPKat that is posting this blog (i.e. Jeremy) says he thinks that, if a sign - however inherently undistinctive it may be when it starts its life - has become truly distinctive for particular goods or services, there's a general interest in making sure that it jolly well ISN'T used by others if it's going to confuse the poor old consumer. But, if the consumer views a third party's use as a genuine embellishment and not as a trade mark, the trade mark owner should have nothing to complain about. The third question looks like a bit of a conceptual red herring and he hopes the ECJ will manage not to answer it.