Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T-291/09)

Judgment of 1 Feb 2012

law://eu/cjeu/2009/t-291-09/para_76@2026-11-14

76Lastly, with respect to the taking into consideration of documents subsequent to the date of the application for a Community trade mark, it must be borne in mind that, as regards First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the Court of Justice, in discussing the issue of proof of genuine use of a mark, held, in paragraphs 30 and 31 of the order in Case C-259/02 La Mer Technology [2004] ECR I-1159, that that directive makes the classification as ‘genuine use’ of the mark consequential on consideration of the circumstances which pertain during the relevant period and which therefore predate the filing of the application for revocation. Nevertheless, the directive does not expressly preclude in assessing the genuineness of use during the relevant period, account being taken, where appropriate, of any circumstances subsequent to that filing. Such circumstances may make it possible to confirm or better assess the extent to which the trade mark was used during the relevant period and the real intentions of the proprietor during that time. That case-law was followed, in respect of Regulation No 40/94, inter alia, in paragraph 38 of Case T-325/06 Boston Scientific v OHIM — Terumo (CAPIO), judgment of 10 September 2008, not published in the ECR, which case-law must also apply in respect of Regulation No 207/2009.

Carrols Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T-291/09)

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