Keywords
Summary

Keywords

1. Approximation of laws — Trade marks — Directive 89/104 — Reasons for revocation of the trade mark — Lack of genuine use of the trade mark — Definition — (Council Directive 89/104, Arts. 10(1) and 12(1))

2. Approximation of laws — Trade marks — Directive 89/104 — Reasons for revocation of the trade mark — Lack of genuine use of the trade mark — Consideration of circumstances subsequent to the filing of the application for revocation — Whether permissible — Conclusion to be drawn by the national court — (Council Directive 89/104, Art. 12(1))

Summary

1. Articles 10(1) and 12(1) of First Directive 89/104 on trade marks must be interpreted as meaning that there is " genuine use" of a trade mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by that mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real in the course of trade, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark. When it serves a real commercial purpose, in the circumstances cited above, even minimal use of the mark or use by only a single importer in the Member State concerned can be sufficient to establish genuine use within the meaning of the directive.

see para. 27, operative part 1

2. While First Directive 89/104 on trade marks makes the classification of use of the trade mark as " genuine use" , within the meaning of Article 12(1), consequential only on consideration of the circumstances which pertain in respect of the relevant period and which predate the filing of the application for revocation, it does not preclude, in assessing the genuineness of use during the relevant period, account being taken, where appropriate, of any circumstances subsequent to that filing. It is for the national court to determine whether such circumstances confirm that the use of the mark during the relevant period was genuine or whether, conversely, they reflect an intention on the part of the proprietor to defeat that claim

see para. 33, operative part 2