Advocate General Sharpston delivered her Opinion this morning in Case C‑149/11 Leno Merken BV v Hagelkruis Beheer BV (the celebrated ONEL/OMEL case), in which the Court of Justice has been asked to give a ruling on the question whether the use of a Community trade mark in a single EU Member State must be taken as genuine use in the European Union.  To refresh the memory of readers, the questions actually posed read as follows:

‘1.      Must Article 15(1) of [the Regulation] be interpreted as meaning that use of a Community trade mark within the borders of a single Member State is sufficient to constitute genuine use of that trade mark, given that, had it been a national trade mark, such use would have been regarded as genuine use in that Member State (see Joint Statement No 10 regarding Article 15 of Council Regulation (EC) No 40/94 of 20 December 1993 and the Opposition Guidelines of the OHIM)?

2.      If Question 1 is answered in the negative, can the use of a Community trade mark within a single Member State as described above never be regarded as genuine use in the Community as referred to in Article 15(1) of [the Regulation]?

3.      If the use of a Community trade mark within a single Member State can never be regarded as genuine use in the Community, what requirements apply – in addition to the other factors – in respect of the territorial scope of the use of a Community trade mark when assessing genuine use in the Community?

4.      Or else – as an alternative to the above – must Article 15 of [the Regulation] be interpreted as meaning that the assessment of genuine use in the Community should be carried out wholly in the abstract, without reference to the borders of the territory of the individual Member States (and that, for example, market share (product markets/geographic markets) should be taken as the point of reference)?’

This morning Advocate General Sharpston advised the Court to rule as follows:

Article 15(1) ... must be interpreted as meaning that (i) use of a Community trade mark within the borders of a single Member State is not, of itself, necessarily sufficient to constitute genuine use of that trade mark, but (ii) it is possible that, when account is taken of all relevant facts, use of a Community trade mark within an area corresponding with the territory of a single Member State will constitute genuine use in the Community.

Genuine use in the Community within the meaning of Article 15(1) of Regulation No 207/2009 is use that, when account is taken of the particular characteristics of the relevant market, is sufficient to maintain or create market share in that market for the goods and services covered by the Community trade mark.

The decision of the Court of Justice is eagerly awaited. In the meantime, there will doubtless be much debate as to the merits of this Opinion which, endorsing a position somewhere between two opposing extremes, is bound to come in for a good deal of criticism.