As reported last night on the MARQUES Class 46 weblog, a reference for a preliminary ruling has been made to the Court of Justice of the European Union (CJEU) in Case C-49/13 MF7, another request for guidance on EU trade mark law, in which the referring court asks the following questions (taken from the UK Intellectual Property Office's website):
1. Is Article 3(2)(d) of the [Trade Mark] Directive to be interpreted as meaning that, for the assessment of whether a trade mark applicant acted in good faith, only circumstances apparent before the date or on the date of the submission of the trade mark application are relevant, or can circumstances which occurred after the application was submitted also be used as supporting evidence of the fact that the applicant acted in good faith? [A reasonable question, says the IPKat, since there is not a convenient pan-European body of law relating to the admissibility and weighting of evidence -- but the answer must surely be that circumstances that occur after the date of a trade mark application are supporting evidence of what happened before that date if they are a direct and inevitable consequence of anything that transpired before that date]
2. Is it necessary to apply the judgment in Joined Cases C-414/99 to C-416/99 [Zino Davidoff and Levi Strauss v Tesco and others] generally to all cases where it is being assessed whether a trade mark proprietor agreed to conduct which may result in weakening or limitation of his exclusive rights? [in that dispute the question related to the circumstances in which a trade mark owner may be taken to have agreed to goods being put on to the market with his implicit agreement -- an issue that impinged directly on the cherished notion of free movement of goods within the EU -- but this Kat sees no reason to bend the concept of implied consent to suit the precise circumstances in which it must be shown, a course which, if followed, will make the law even less stable and predictable than many already feel it is].
3. Is it possible to infer good faith on the part of an applicant for a later trade mark from the situation in which the proprietor of an earlier trade mark concluded agreements with it, on the basis of which that proprietor consented to the publication of periodical printed material whose designation was similar to mark applied for by the later trade mark applicant, agreed with the registration of that printed material by the applicant for a later trade mark and offered that applicant support in its publication, but the agreements concerned nevertheless did not expressly regulate the issue of the intellectual property right? [Predicted answer: yes, it's possible, but it's up to the court or tribunal concerned to decide whether the inference should be drawn on the facts before it in each individual case]
4. In so far as circumstances occurring after a trade mark application was submitted may also be relevant for the purposes of the assessment of whether the trade mark applicant acted in good faith, is it possible, in the alternative, to infer the fact that the applicant acted in good faith from the situation in which the proprietor of the earlier trade mark knowingly tolerated the existence of the contested trade mark for a period of at least ten years? [Predicted answer: as for 3]