Leno Merken BV v Hagelkruis Beheer BV, European Court of Justice
Eleanor Sharpston, an Advocate General to the European Court of Justice (ECJ), has expressed her opinion that whether a Community Trade Mark (CTM) has been subject to “genuine use” should be based on more than simply geographical considerations. Her opinion has been published after the recent referral of a case to the ECJ by the Dutch courts which asked whether use of a CTM in one European Union member state alone (in this case, the Netherlands) was enough to be considered “genuine use”.
The Advocate General states that, in her opinion, whether a CTM has been the subject of “genuine use” should be decided on a case-by-case basis, but that it was possible for a CTM to be used in every member state and still not be considered to have been subject to “genuine use”. Rather, “genuine use” can only be proved where the CTM has been used in way that is “sufficient to maintain or create market share in that market for the goods and services” covered by the CTM, and that can happen even if the CTM has only been used within one member state, thereby protecting nationally registered trade marks as well as CTMs.
The opinion is important as, if a CTM is not subject to “genuine use” for five years or more, that CTM can be revoked under the Community Trade Mark Regulation.