Keywords
Summary

Keywords

Approximation of laws — Trade marks — Directive 89/104 — Grounds of revocation of a trade mark — No genuine use of the mark — Concept — Application by the national court to the specific case — (Council Directive 89/104, Art. 12(1))

Summary

Article 12(1) of the First Directive 89/104 relating to trade marks must be interpreted as meaning that there is "genuine use" of a trade mark where the mark 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 the 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 exploitation of the mark is real, 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 the goods or services at issue, the characteristics of the market and the scale and frequency of use of the mark. The fact that a mark that is not used for goods newly available on the market but for goods that were sold in the past does not mean that its use is not genuine, if the proprietor makes actual use of the same mark for component parts that are integral to the make-up or structure of such goods, or for goods or services directly connected with the goods previously sold and intended to meet the needs of customers of those goods.

It is for the national court to draw the consequences for the resolution of the dispute before it of that interpretation of the Community law concept of "genuine use" of the trade mark.

see paras 43, 46, operative part 1-2