Court of Justice (Sixth Chamber), 17 March 2016, in case C‑252/15 P  (Naazneen Investments Ltd v. OHIM and Energy Brands Inc.)

Regulation (EC) No 207/2009 −Article 51(1)(a) — Genuine use – Proper reasons for non-use.

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 in the course of trade 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 those goods or services, the characteristics of the market and the scale and frequency of use of the mark
Only obstacles having a sufficiently direct relationship with a trade mark making its use impossible or unreasonable, and which arise independently of the will of the proprietor of that mark, may be described as ‘proper reasons’ for non-use of that mark. Such an obstacle must be independent of the will of the proprietor of the trade mark and have a sufficiently direct relationship with that mark making its use impossible or unreasonable.

categoria:European Case Law