# C_2016156EN.01002801.xml

| 2.5.2016 | EN | Official Journal of the European Union | C 156/28 |
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2.5.2016

EN

Official Journal of the European Union

C 156/28

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Request for a preliminary ruling from the Audiencia Provincial de Alicante, Sección octava (Spain) lodged on 15 February 2016 — The Irish Dairy Board Co-operative Limited v Tindale & Stanton Ltd España, S.L.

(Case C-93/16)

(2016/C 156/37)

Language of the case: Spanish

Referring court

Referring court

Audiencia Provincial de Alicante, Sección octava

Parties to the main proceedings

Parties to the main proceedings

Appellant: The Irish Dairy Board Co-operative Limited

Appellant:

Respondent: Tindale & Stanton Ltd España, S.L.

Respondent:

Questions referred

Questions referred

| 1. | In so far as Article 9(1)(b) of the Community Trade Mark Regulation (1) requires that, in order for the proprietor of a Community trade mark to prevent a third party not having his consent from using a sign in the course of trade in the cases set out in that provision, there should exist a likelihood of confusion, can this provision be interpreted as meaning that there is no likelihood of confusion where the earlier Community trade mark has, owing to the acquiescence of the proprietor, peacefully coexisted for some years with similar national trade marks in two Member States of the European Union, so that the absence of a likelihood of confusion in those two Member States is extended to other Member States, or to the European Union as a whole, regard being had to the unitary treatment that the Community trade mark requires? |
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1.

In so far as Article 9(1)(b) of the Community Trade Mark Regulation (1) requires that, in order for the proprietor of a Community trade mark to prevent a third party not having his consent from using a sign in the course of trade in the cases set out in that provision, there should exist a likelihood of confusion, can this provision be interpreted as meaning that there is no likelihood of confusion where the earlier Community trade mark has, owing to the acquiescence of the proprietor, peacefully coexisted for some years with similar national trade marks in two Member States of the European Union, so that the absence of a likelihood of confusion in those two Member States is extended to other Member States, or to the European Union as a whole, regard being had to the unitary treatment that the Community trade mark requires?

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| 2. | In the situation set out in the previous paragraph, can the geographical, demographic, economic or other circumstances of the States in which the coexistence has occurred be taken into consideration for the purpose of assessing the likelihood of confusion, so that the absence of a likelihood of confusion in those Member States can be extended to a third Member State, or to the European Union as a whole? |
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2.

In the situation set out in the previous paragraph, can the geographical, demographic, economic or other circumstances of the States in which the coexistence has occurred be taken into consideration for the purpose of assessing the likelihood of confusion, so that the absence of a likelihood of confusion in those Member States can be extended to a third Member State, or to the European Union as a whole?

| 3. | With regard to the case referred to in subparagraph (c) of Article 9(1) of the Community Trade Mark Regulation, must this provision be interpreted as meaning that, where an earlier trade mark has coexisted with the contested sign for a certain number of years in two European Union Member States without the proprietor of the earlier trade mark opposing it, this acquiescence on the part of the proprietor towards the use of the later sign in these two States in particular can be extended to the remaining territory of the European Union for the purpose of determining whether there is due cause for a third party’s use of the later sign, on account of the unitary treatment that the Community trade mark requires? |
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3.

With regard to the case referred to in subparagraph (c) of Article 9(1) of the Community Trade Mark Regulation, must this provision be interpreted as meaning that, where an earlier trade mark has coexisted with the contested sign for a certain number of years in two European Union Member States without the proprietor of the earlier trade mark opposing it, this acquiescence on the part of the proprietor towards the use of the later sign in these two States in particular can be extended to the remaining territory of the European Union for the purpose of determining whether there is due cause for a third party’s use of the later sign, on account of the unitary treatment that the Community trade mark requires?

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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