Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
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TUESDAY, 17 SEPTEMBER 2013
CJEU: is Kornspitz generic for bread rolls?
In Case C-409-12,
the AG delivered its opinion on whether "Kornspitz" a trademark owned by Backaldrin Osterreich The Kornspitz Company, has become common in trade for a specific type of bread rolls made of a certain type dough which has an interesting moon-like shape with pointy ends- and thus could not function anymore as a trademark.
The Questions referred to the CJEU by the Austrian Appeal Board, (Article 267 TFEU) are as follow:
"1. Has a trade mark become ‘the common name ... for a product or service’ within the meaning of Article 12(2)(a) of Directive 2008/95/EC, where (a) although traders know that the mark constitutes an indication of origin they do not generally disclose this to end consumers, and(b) (inter alia) on those grounds, end consumers no longer understand the trade mark as an indication of origin but as the common name for goods or services, inrespect of which the trade mark is registered?
2. Can the conduct of a proprietor be regarded as ‘inactivity’ for the purposes of Article 12(2)(a) of Directive 2008/95/EC simply if the proprietor of the trade mark remains inactive notwithstanding the fact that traders do not inform customers that the name is a registered trade mark?
3. If, as a consequence of acts or inactivity of the proprietor, a trade mark has become a common name for end consumers, but not in the trade, is that trade mark liable to be revoked if, and only if, end consumers have to use this name because there are no equivalent alternatives?"
Posted by: Laetitia Lagarde @ 21.27
CJEU, trademarks, genericism, Kornspitz,
If you want to know more about this case, you're in for a treat here
where Birgit covered it with great detail.
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