THURSDAY, 11 NOVEMBER 2010
GRAIN MILLERS go for ruling on "more than local significance" use
Case T-430/08 Grain Millers, Inc. v Office for Harmonisation in the Internal Market is being appealed to the Court of Justice of the European Union, where it will be known as Case C-447/10 P.
The decision under appeal involvedopposition proceedings between Grain Millers GmbH & Co. KG and Grain Millers, Inc. in which the GmbH opposed Community trade mark registration by the Inc of the mark GRAIN MILLERS, based on its own earlier sign GRAIN MILLERS. GmbH was asked to furnish evidence of use of its earlier sign. According to the appellant,
"The General Court has previously, in the case Alberto Jorge Moreira da Fonsecal OHIM - General Optica, T-318/06 to T-321/06 ... addressed the interpretation of the purpose of the condition "of more than mere local significance" found in Article 8(4) of the Regulation, namely to restrict the possibilities of conflict to those which may exist with signs which are truly significant and that this should be assessed not only from geographical dimension but also from an economical dimension of the sign's significance, which is assessed in the light of the length of time for which it has fulfilled its function in the course of trade and the degree to which it has been used.
However, in the appealed decision the General Court has not adopted this approach, and there is nothing that suggests the General Court even was aware of the principles laid down in that case.
The applicant submits that the General Court has erroneously held that Article 8(4) does not require proof of genuine use of the sign in support of the opposition as is required by Article 43(2) of the Regulation.
The General Court has erroneously set aside previous case law regarding assessment of evidence and the requisite standard of proof".
As the CTM register and the registers of national jurisdictions become increasingly crowded and many businesses feel that it is already too hard to secure registration in the face of local or distant oppositions, the approach taken by the Court of Justice is important and may be indicative of its wider appraisal of the policy which underlies Article 8(4).
Posted by: Jeremy Phillips @ 12.22
Tags: evidence of use, "more than mere local significance",