ONEL/OMEL: the questions start to crystallise

The ONEL/OMEL trade mark dispute, born in the Dutch corner of the Benelux (see for example earlier IPKat posts here, here and here) is now set for export to the Luxembourg portion of it. To remind readers, at the heart of this is NOT so much a dispute between two traders, one of whom wants to stop the other registering a similar trade mark for identical services. Rather, it's about a matter of principle: in order to prevent a later national trade mark being registered, must the opponent's earlier Community trade mark have been used in more than one of the 27 Member States of the European Union in order to establish genuine use of that mark?

Excitedly posting on MARQUES' Class 46 weblog earlier this afternoon is the IPKat's good friend Gino van Roeyen, who explains that today the Court of Appeal of The Hague has suggested referring the following complex questions to the Court of Justice of the European Union for a preliminary ruling:

"1. Should Article 15(1) of the Community Trade Mark Regulation be interpreted in such a way that the use of a trade mark within the borders of one Member State is sufficient, provided that this use, if the trade mark would be a national trade mark, would be considered to be normal use in that Member State (compare Joint Statement no. 10 to Article 15 ... and the Opposition Guidelines)

2. If no, is use within one Member State never normal use within the European Community as referred to in Article 15 of the Community Trade Mark Regulation? If yes, which requirements are applicable with regard to the territorial scope of the use of a trade mark – apart from the other circumstances -- to assess a normal use within the Community?

3. If the answer to question 1 should be in the negative, should the assessment of normal use within the Community be abstracted from the borders of the territory of the separate Member States and solely linked up with the market shares of the trade mark (and/or other factors) on the various markets within the Community?"

It's not yet known whether the parties will be happy with these questions, or whether they may wish to fine-tune them. Further information is likely to appear on the Dutch IP weblog Boek9.nl before the IPKat gets to find out.