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24. In how many countries does a CTM have to be used to consider this as ‘genuine’ use?

After 5 years of registration a CTM Mark becomes vulnerable to revocation, or ineffective in oppositions, to the extent that there is no “genuine use in the European Union in connection with the goods and services in respect of which it is registered”.

Until January 2010 it was generally accepted (a/o by the EU Trademark Registry) that “genuine use” of a mark on a more than minimal level in only one EU country would constitute genuine use and that this would validate the European Trademark across the European Union. This meant registration/use of a conflicting trademark by a third party could be prevented anywhere in the EU. This included situations where the EU mark was used in one country and the third party trademark right was in another member state.

This approach is consistent with the principles underlying the EU Mark system, namely, that the European Union is a single market and that a EU Mark is a unitary right effective across all 28 member states, provided genuine use is made of the mark.

A BOIP (Benelux Office for IP) decision, relating to proof of use of an Opponent’s EU Trademark that had been registered for over 5 years, held that “genuine use” in only one EU member state was insufficient to constitute “genuine use in the Community”.

This decision was appealed to the Appeal Court in The Hague. This court then forwarded questions to the European Court of Justice, which court gave the following ruling:

A Community trade mark is put to ‘genuine use’ within the meaning of Article 15(1) of Regulation No 207/2009 when it is used in accordance with its essential function and for the purpose of maintaining or creating market share within the European Community for the goods or services covered by it. It is for the referring court to assess whether the conditions are met in the main proceedings, taking account of all the relevant facts and circumstances, including the characteristics of the market concerned, the nature of the goods or services protected by the trade mark and the territorial extent and the scale of the use as well as its frequency and regularity.

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