CLASS 46
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, 19 MARCH 2013
Article 102(1) and avoiding Community trade mark injunctions: can you help?
Uli Hildebrandt and Andreas Lubberger, of MARQUES member law firm Lubberger Lehment, are working on a commentary on the Community Trade Mark Regulation. Uli has a problem with Art. 102(1), which reads
Posted by: Blog Administrator @ 01.43
Tags: CTM, injunctions,
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Article 102(1) and avoiding Community trade mark injunctions: can you help?
Where a Community trade mark court finds that the defendant has infringed or threatened to infringe a Community trade mark, it shall, unless there are special reasons for not doing so, issue an order prohibiting the defendant from proceeding with the acts which infringed or would infringe the Community trade mark.
The Court of Justice of the European Union has taught us in Nokia Corporation v Wärdell Case C-316/05, [2007] E.T.M.R. 20, [2007] ECR I-12083 that "special reasons" are the same in the whole Community, and that a court is bound to prohibit the use of the trade mark unless there are "special reasons". But what about infringers that want to avoid a court proceeding? Uli explains:
"There are different ways to avoid court proceeding throughout the Community. As far as I know, in the UK you simply have to undertake that you will refrain from further infringements. In Germany you have to promise a contractual penalty for future infringements. And in Austria you have to run to a notary public. And that's the background for my questions:* What steps can an infringer take in your member state to avoid a court proceeding? Which are the relevant court decisions (with case number and date) ruling out this method?* Does this method work in your member state in practice? Or are there a lot of repeated infringements?* What makes the method in your member state effective? Can you recommend your state's method?
Adds Uli: I could not find a book answering these questions. Most international trade mark litigation books start with the court proceeding and do not teach us about the time before.
Readers can post their answers to the MARQUES Linked In Group or email them to Uli directly at hildebrandt@lubbergerlehment.com. Uli will then assess the answers and provide a condensed feedback.
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