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Alert: Use of a mark as a label of quality is not genuine use (Gözze v VBB)

Published on: 08 June 2017
Published by: LexisPSL
  • Alert: Use of a mark as a label of quality is not genuine use (Gözze v VBB)
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Article summary

IP & IT analysis: The Court of Justice has ruled on a reference from the Higher Regional Court, Düsseldorf, in relation to the use of a figurative cotton flower mark by a German trade association and its affiliates as a label of quality for cotton products. It was asked to rule on whether the use of an individual mark as a label of quality constitutes, in relation to the goods for which it is used, use of a trade mark for the purposes of Articles 9(1) and 15(1) of Regulation (EC) 207/2009 (EUTMR). It concluded that Article 15(1) EUTMR must be interpreted as meaning that such use does not constitute ‘genuine use’ within the meaning of that provision. However, the affixing of a mark does constitute genuine use if it guarantees, additionally and simultaneously, to consumers that those goods come from a single undertaking under the control of which the goods are manufactured and which is responsible for their quality. It was for the referring court to verify this, on the basis of the evidence before it. In such circumstances, the proprietor of the mark is entitled to take infringement action pursuant to Article 9(1)(b) EUTMR in respect of the affixing by a third party of a similar sign on identical goods, if there is a likelihood of confusion on the part of the public. However, it additionally held that an individual mark cannot be declared invalid pursuant to Articles 52(1)(a) and 7(1)(g) EUTMR because the proprietor fails to ensure, by carrying out periodic quality controls of its licensees, that expectations relating to the quality which the public associates with the mark are being met. The provisions of EUTMR on collective trade marks may not be applied mutatis mutandis to individual trade marks. or take a trial to read the full analysis.

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