Judgment_paragraph 31 · Birkenstock Sales GmbH v European Union Intellectual Property Office (C-26/17 P)

31Regarding the merits of that part, it follows from the settled case-law of the Court that the distinctive character of a trade mark for the purposes of Article 7(1)(b) of Regulation No 207/2009 means that the mark in question makes it possible to identify the product in respect of which registration is sought as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings. That distinctive character must be assessed, first, by reference to the products or services in respect of which registration is sought and, second, by reference to the relevant public’s perception of the mark (judgments of 25 October 2007, Develey v OHIM, C‑238/06 P, EU:C:2007:635, paragraph 79 and the case-law cited, and of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraphs 33 and 34).