Marques категорично се противопоставя на подобно тълкуване на теорията касаеща търговските марки в Европа. Освен това решението е в разрес със законодателството относно търговските марки на Общността.
По-долу може да прочетете и останалата част от становището.
MARQUES disagrees with the interpretation of the concept of genuine use contained in the ruling of the Benelux IP Office on the basis of the following considerations. MARQUES considers that the ruling is contrary to the concept of one single unitary trademark right conferred under the CTM system and seriously jeopardises this concept. Neither the CTMR nor the case law of the ECJ gives any support to the ruling of the BOIP. Genuine use in the EU has been interpreted as meaning that the mark is used in accordance with its functions, which are to guarantee the identity of the origin of the goods or services for which it is registered, to constitute a guarantee of the products/services in question, and those of communication, investment or advertising (Case C-487/07 L’Oreal SA and Bellure NV). When assessing that, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real (Case C-40/01 Ansul BV and Ajax Brandbeveiliging BV). Furthermore, it has also been stated that use of the mark may in some cases be sufficient to establish genuine use within the meaning of the Directive, even if that use is not quantitatively significant (Case C-259 La Mer Technology Inc. and Laboratories Goemar SA). Indeed, the European Court of Justice ruled that even minimal use can be sufficient to qualify as genuine, on condition that it is deemed to be justified, in the economic sector concerned, for the purpose of preserving or creating market share for the goods or services protected by the mark. The question whether use is sufficient to maintain or create market share for the goods or services protected by the mark thus depends on several factors and on a case by case assessment (Case T-191 Anheuser Busch Inc and HIM). By way of analogy, the Court of Justice was already asked to state whether “reputation in the Community” was satisfied in case where the CTM had a reputation in only one Member State (Case C-301/07 Pago International GmbH and Tirolmilch registrierte Genossenschaft mbH). The Court ruled that the condition should be considered to be fulfilled when the CTM had a reputation in a substantial part of the territory of the Community. At that case, the territorial requirement was considered satisfied with regard to a single Member State, namely Austria. As a conclusion, the territory of a single Member State may be considered to constitute a substantial part of the territory of the Community. In the light of the foregoing, MARQUES is of the opinion that the BOIP Opposition Decision in question contradicts the uniform interpretation of the concept of genuine use in the EU. We are of the opinion that the question whether use is sufficient to constitute genuine use relies on all the circumstances relevant to establishing that the use is real. The implementation of such criteria shall not depend on the number of Member States affected by the use of the mark. The opposite interpretation would affect the main principles of the CTM system. The CTM is one of three options for protection of trade marks in Europe, and the number of CTMs proves the business interest in the system. MARQUES strongly believes in the principle of the unitary character of the CTM and will continue to support this concept”.
Информация на IP Kat.
The Associaction of European Trade Mark Owners (Marques) issued an informal opinion against the decision of the Benelux Office for Intellectual Property (BOIP), which the use of European brands in one member country of the European Union did not constitute actual use of the mark in the territory of the Union in case of opposition against later similar marks .
Marques strongly opposes such an interpretation of the theory relating to trade marks in Europe. Moreover, the decision is brushing with the law on the Community trade mark.
Above you can read the rest of the opinion.
Information from IP Kat.