|Extensively used with |
the proprietor's consent ...
There is no justification for protecting Community trade marks or, as against them, any trade mark which has been registered before them, except where the trade marks are actually used.
Another interesting remark regards the specificity and the common practice of the relevant market sector, which must be taken into account when assessing genuine use and which Matratzen Concord did not contest. Through the sales of items of bedding, featuring at their corners the diagonal bends and labels including the ARKTIS LINE logo the CTM proprietor could satisfactorily prove genuine use of its mark.
In contrast, the General Court affirmed not only that the contested mark was used but that its use could be qualified as genuine from the perspective of its extent, duration and nature: such use does not need to be always quantitatively relevant, since its status as genuine use depends on the characteristics of the goods and services under examination. The ARKTIS mark satisfied the relevant criteria in the light of the sales documented in invoices and in the sales statistics submitted: the CTM proprietor’s commercial output amounted to rather more than 3,490 products sold between 2006 and 2009 in the EU.
Finally, applying Article 15(2)(2) of Regulation 207/2009 the Court held that the use of the ARKTIS mark through the CTM proprietor’s licensees included use by a licensee with whom it entered into the licence agreement in 2011 and thus outside the revocation proceeding’s relevant period was also to be considered in the assessment of genuine use since the CTM proprietor had specified that this licensee used the mark within the relevant period (2006/2009) with its consent, according to Article 15(2).
To conclude, while the General Court’s review entails a legality check of the Board of Appeal’s decisions, the latter is entitled to carry out an examination of the dispute, in the light of the facts and the points of law introduced by the parties, which does not depend on whether the parties raised a specific plea with regard to the contested decision criticising the appreciation of the evidence provided by the counterparty.