- Alert: Court of Justice rules on deemed validity of trade marks (Raimund v Aigner)
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IP analysis: The Court of Justice has clarified the scope of Article 99 of Regulation (EC) 207/2009 (which provides that the EU trade mark courts shall treat an EU trade mark as valid unless its validity is put in issue by the defendant with a counterclaim for revocation or for a declaration of invalidity). The reference occurred in the context of a trade mark infringement action in Austria in respect of the use of the mark BAUCHERLWÄRMER in relation to herbal mixtures for adding to high-proof alcohol. The success or failure of the infringement action depended solely on the plea of invalidity. The Court of Justice confirmed that an action for infringement of an EU trade mark may not be dismissed on the basis of an absolute ground for invalidity (eg bad faith), without the court having upheld the counterclaim for a declaration of invalidity brought by the defendant in the action, based on that ground. However, it also held that the court is not precluded from dismissing the infringement action on such a ground where the declaration of invalidity has not become final.
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