ECJ TO RULE ON FUNCTIONALITY?

The IPKat has come across a reference to the ECJ under the Art.234 procedure, calling on the court to interpret Directive 89/104, Art.3(1)(e) first indent (shapes resulting from the nature of the goods themselves). The Hoge Raad der Nederlanden asks:

(1) Must Article 3(1)(e), first indent, be interpreted as meaning that the prohibition contained therein permanently precludes the registration of a shape as a trade mark where the nature of the product is such that its appearance and shaping determine its market value entirely or substantially as a result of their beauty or original character, or does the prohibition not apply where, prior to the application for registration, the attractiveness of the relevant shape to the public has been determined predominantly by the recognition of it as a distinctive sign?

(2) If the answer to Question 1 is to the latter effect, to what extent must this attractiveness have prevailed for the prohibition no longer to apply?

IPKat readers had better sit tight - the reference was only made in September.