Gąsowska Magdalena, Addressing the need to improve the functioning of the European trade mark system: defining relevant market for the purposes of the genuine use of the Community Trade Mark and alternative enhancements
Addressing the need to improve the functioning of the European trade mark system: defining relevant market for the purposes of the genuine use of the Community Trade Mark and alternative enhancements
In the recent ONEL v. OMEL judgment (C-149/11), the Court of Justice has again referred to the „market concerned” for the purpose of assessing genuine use of a trade mark. But does trade mark law define the relevant concept of market? Should this concept be assimilated to the market concept in competition law given their close origins. This paper aims at comparing market concepts in trade mark and competition law and assessing coherence, usefulness and objectiveness of the relevant concepts. The opportunity is also taken to suggest subsidiary solutions to the problems related to the lenient approach to the requirement of genuine use of the Community Trade Mark.
Part I: Current problems connected with the territorial aspect of genuine use
The recent judgment of the Court of Justice of the European Union (CJEU, the Court), C-149/11, commonly referred to as ONEL v. OMEL , has caused quite a stir in the way the existence of the genuine use of a Community Trade Mark (CTM) is assessed. The judgement departed from the rule, agreed upon in the preceding decisions, that in...
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