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Estonia refers questions on injunction and compensation to CJEU

Readers may not yet be aware of C-280/15 Nikolayeva, a reference to the Court of Justice of the European Union from Estonian Court which relates to Community trade mark infringement and a claim for damages for unjust enrichment. 

The questions referred for a preliminary ruling are as follows:

  1. Is a Community trade mark court required to issue the order provided for in Article 102(1) [of Regulation 207/2009 on the Community trade mark, which requires the court to issue an injunction unless there are special reasons for not doing so] if the applicant does not seek such an order in his claims and the parties do not allege that the defendant has infringed or threatened to infringe a Community trade mark after a specific date in the past, or does failure to make an application to that effect and to refer to this fact represent a ‘special reason’ within the meaning of the first sentence of this provision?
  2. Is Article 9(3) [reasonable compensation possible in respect of acts committed after publication of a CTM application] to be interpreted as meaning that the proprietor of a Community trade mark may demand only reasonable compensation from a third party on the basis of the second sentence of Article 9(3) for use of a sign identical with the trade mark in the period from the publication of the application for registration of the trade mark until the publication of the registration of the trade mark, but not compensation for the fair market value of what has been gained as a result of the infringement and for damage, and that there is also no right to reasonable compensation for the period prior to publication of the application for registration of the trade mark?
  3. What type of costs and other forms of compensation are included in reasonable compensation under Article 9(3), second sentence, and can this also encompass in certain circumstances (and if so, in which circumstances) compensation for non-material harm caused to the proprietor of the trade mark?

If you would like to comment on this case and advise the UK Intellectual Property Office, just email policy@ipo.gov.uk by 4 August 2015.

Posted by: Blog Administrator @ 23.05
Tags: CJEU reference,Estonia, injunction, compensation unjust enrichment after date of publication of application,
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