The protectability of a trade mark can be assessed solely on the basis of the respective domestic perception of the public.^[1] A fictitious uniform European consumer does not (yet) exist.^[2] It is therefore not only possible that a trade mark lacks distinctiveness in one Member State but not in another due to linguistic, cultural, social and economic differences, but it is also possible that a trade mark does not possess distinctiveness at EU level but does in a Member State of the EU.^[3] However, the principle of national examination is significantly limited in the case of foreign-language word marks by the fact that a meaning of the word that the relevant public can recognise can already be taken into account. It does not matter whether the foreign language meaning is present to the public.^[4] In general, official enquiries as to whether and to what extent identical or similar trade marks have been registered or excluded from registration in other Member States of the EU are not necessary. The fact that an identical trade mark has been registered in one Member State for identical products may be taken into account by the competent authority of another Member State, but is not decisive for its decision to allow or refuse the application for registration of the trade mark. ^[5] It is also irrelevant for registration as a trade mark whether the name is already protected as a business identifier.^[6]
Finally, in the case of EU trade marks, Article 7 II EUTMR provides that a sign is excluded from registration even if grounds for refusal exist in only part of the EU, for example if it is descriptive or devoid of distinctive character in the language of a Member State. This applies even if it would be registrable in another Member State^[7] or if a previously registered trade mark becomes a common name in parts of the EU and thus becomes territorially limited not protectable.^[8]
If, for example, the name 'Wasser' is descriptive of 'mineral water' in the German-speaking area, an EU trade mark application must be refused, regardless of the fact that mineral water is designated differently in other Member States.
However, circumstances from one part of the EU may, under certain circumstances, be used for the assessment of facts in other parts of the EU. This is the case if the market conditions and socio-cultural circumstances in the two parts of the EU do not differ significantly.^[9]
Therefore, if, for example, a court wishes to take into account aspects present in Ireland for the assessment of a likelihood of confusion in Spain, the court would first have to ensure that there is no significant divergence in the market conditions or socio-cultural circumstances to be observed. For example, there may be differences in a geographical concept in particular if, for example, there is a perception of particular proximity to the region in question in one part of the EU.^[10]