21That essential function of trade marks has been incorporated by the European Union legislature into Article 2 of Directive 2008/95, which provides that signs which are capable of being represented graphically may only constitute a trade mark if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings (Case C-517/99 Merz & Krell [2001] ECR I-6959, paragraph 23, and Björnekulla Fruktindustrier, paragraph 21).
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