Big day today in The Hague: the Court of Appeal The Hague has proposed to the parties to refer the following complex questions to the ECJ in the much discussed ONEL case. The parties have been requested to comment – ‘to chew’ might be a better phrase - on these questions before the final questions for the ECJ will be formulated. Of course this is my own translation of the questions. If you want the questions in Dutch I refer to our friends of Boek9 here. And the questions are:
1. Should article 15 par. 1 CTM 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 nr. 10 to article 15 CTM original version and the Opposition Guidelines)
2. If no, is use within one Member State never normal use within the EC as referred to in article 15 CTM? 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?
To be continued.