# C_2017424EN.01001002.xml

| 11.12.2017 | EN | Official Journal of the European Union | C 424/10 |
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11.12.2017

EN

Official Journal of the European Union

C 424/10

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Judgment of the Court (Ninth Chamber) of 19 October 2017 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Hansruedi Raimund v Michaela Aigner

(Case C-425/16) (1)

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((Reference for a preliminary ruling - Intellectual and industrial property - EU trade mark - Regulation (EC) No 207/2009 - Article 96(a) - Infringement proceedings - Article 99(1) - Presumption of validity - Article 100 - Counterclaim for a declaration of invalidity - Relationship between an action for infringement and a counterclaim for a declaration of invalidity - Procedural autonomy))

(2017/C 424/14)

Language of the case: German

Referring court

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Parties to the main proceedings

Applicant: Hansruedi Raimund

Applicant:

Defendant: Michaela Aigner

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 99(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that an action for infringement brought before an EU trade mark court in accordance with Article 96(a) of that regulation may not be dismissed on the basis of an absolute ground for invalidity, such as that provided for in Article 52(1)(b) of that regulation, without that court having upheld the counterclaim for a declaration of invalidity brought by the defendant in that infringement action, pursuant to Article 100(1) of the regulation, and based on the same ground for invalidity. |
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1.

Article 99(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that an action for infringement brought before an EU trade mark court in accordance with Article 96(a) of that regulation may not be dismissed on the basis of an absolute ground for invalidity, such as that provided for in Article 52(1)(b) of that regulation, without that court having upheld the counterclaim for a declaration of invalidity brought by the defendant in that infringement action, pursuant to Article 100(1) of the regulation, and based on the same ground for invalidity.

| 2. | The provisions of Regulation No 207/2009 must be interpreted as not precluding an EU trade mark court from being able to dismiss an action for infringement within the meaning of Article 96(a) of that regulation on the basis of an absolute ground for invalidity, such as that provided for in Article 52(1)(b) of that regulation, even though the decision on the counterclaim for a declaration of invalidity, brought pursuant to Article 100(1) of the regulation, and based on the same ground for invalidity, has not become final. |
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2.

The provisions of Regulation No 207/2009 must be interpreted as not precluding an EU trade mark court from being able to dismiss an action for infringement within the meaning of Article 96(a) of that regulation on the basis of an absolute ground for invalidity, such as that provided for in Article 52(1)(b) of that regulation, even though the decision on the counterclaim for a declaration of invalidity, brought pursuant to Article 100(1) of the regulation, and based on the same ground for invalidity, has not become final.

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(1)  OJ C 402, 31.10.2016.

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