| Summary: | The protection of a registered trademark in the EU, either a national- or an EU- trademark, can only be justified when the trademark is in fact used on the market. The European Court of Justice has ruled that a maintained protection of an un-used registered trademark could constitute an obstruction of free competition and risk restricting the free movement of goods and services, in defiance with article 26 of the Treaty on the Functioning of the European Union. Accordingly, the protection of a registered trademark is subject to an obligation to put the trademark to genuine use. The concept of genuine use is to be uniformly interpreted within the union. In this essay, the requirements of genuine use of a registered trademark are pre- sented as four cumulative requirements: the time, place, nature and amount of use. All four requisites must be met in order to fulfill the requirements of genuine use. However, instead of assessing each requisite individually, genuine use must be proven by an overall assessment of every relevant factor in the specific case. If a registered trademark has not been put to genuine use during the last five years, the registration is vulnerable to the sanctions set out in the relevant legislation. Genuine use of a trademark registered for a service may be more difficult to prove than that of goods. For one, a trademark cannot be attached directly to the service as is the case for goods. Furthermore, a service can be thought of as ex- isting solely when the service is being performed, leading to further complica- tions regarding the necessity of proving the nature of the use of a trademark. To constitute genuine use, use of a trademark registered for a service must have a clear connection between the trademark and the service for which it is registered. Such uses may include the marketing of the service, use in connection with the performance of the service, and use in business papers or invoices etc. This essay discusses and analyzes the concept of genuine use of a registered trademark in the EU, especially for trademarks registered for services.
|
|---|
