T-131/06
Zagadnienia:
Relative ground for refusal.
Genuine use of the mark.
Znaki towarowe:
Wnioski:
41. To examine whether an earlier trade mark has been put to genuine use in a particular case, an overall assessment must be carried out, taking account of all the relevant factors in the case. That assessment entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. In addition, the turnover and the volume of sales of the product under the earlier trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the products or services on the relevant market. As a result, the Court of Justice has stated that use of the earlier mark need not always be quantitatively significant in order to be deemed genuine. Even minimal use can therefore be sufficient to be deemed genuine, provided that it 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 (order in Case C-259/02 La Mer Technology [2004] ECR I-1159, paragraph 21; LA MER, cited in paragraph 32 above, paragraph 57; see, by way of analogy, Ansul, cited in paragraph 21 above, paragraph 39).
Tekst wyroku:
T-131/06, Rykiel création and diffusion de modèles v. OHMI.
Opublikowany:
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