# C_2017300EN.01000302.xml

| 11.9.2017 | EN | Official Journal of the European Union | C 300/3 |
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11.9.2017

EN

Official Journal of the European Union

C 300/3

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Judgment of the Court (Second Chamber) of 20 July 2017 (request for a preliminary ruling from the Audiencia Provincial de Alicante — Spain) — Ornua Co-operative Limited, formerly The Irish Dairy Board Co-operative Limited v Tindale & Stanton Ltd España, SL

(Case C-93/16) (1)

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((Reference for a preliminary ruling - Intellectual property - EU trade mark - Unitary character - Regulation (EC) No 207/2009 - Article 9(1)(b) and (c) - Uniform protection of the right conferred by an EU trade mark against the likelihood of confusion and detriment to reputation - Peaceful coexistence of that mark with a national mark used by a third party in part of the European Union - Absence of peaceful coexistence elsewhere in the European Union - Perception of the average consumer - Differences of perception which may exist in different parts of the European Union))

(2017/C 300/04)

Language of the case: Spanish

Referring court

Referring court

Audiencia Provincial de Alicante

Parties to the main proceedings

Parties to the main proceedings

Applicant: Ornua Co-operative Limited, formerly The Irish Dairy Board Co-operative Limited

Applicant:

Defendant: Tindale & Stanton Ltd España, SL

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 9(1)(b) Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark must be interpreted as meaning that the fact that, in part of the European Union, an EU trade mark and a national mark peacefully coexist does not allow the conclusion that in another part of the European Union, where peaceful coexistence between that EU trade mark and the sign identical to that national mark is absent, there is no likelihood of confusion between that EU trade mark and that sign. |
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Article 9(1)(b) Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark must be interpreted as meaning that the fact that, in part of the European Union, an EU trade mark and a national mark peacefully coexist does not allow the conclusion that in another part of the European Union, where peaceful coexistence between that EU trade mark and the sign identical to that national mark is absent, there is no likelihood of confusion between that EU trade mark and that sign.

| 2. | Article 9(1)(b) of Regulation No 207/2009 must be interpreted as meaning that the elements which, according to the European Union trade marks court hearing an infringement action, are relevant for assessing whether the proprietor of an EU trade mark is entitled to prohibit the use of a sign in part of the European Union not covered by that action, may be taken into account by that court to assess whether that proprietor is entitled to prohibit the use of that sign in the part of the European Union which is the subject of the infringement action, provided that the market conditions and the sociocultural circumstances are not significantly different in one of those parts of the European Union and in the other. |
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2.

Article 9(1)(b) of Regulation No 207/2009 must be interpreted as meaning that the elements which, according to the European Union trade marks court hearing an infringement action, are relevant for assessing whether the proprietor of an EU trade mark is entitled to prohibit the use of a sign in part of the European Union not covered by that action, may be taken into account by that court to assess whether that proprietor is entitled to prohibit the use of that sign in the part of the European Union which is the subject of the infringement action, provided that the market conditions and the sociocultural circumstances are not significantly different in one of those parts of the European Union and in the other.

| 3. | Article 9(1)(c) of Regulation No 207/2009 must be interpreted as meaning that the fact that, in part of the European Union, an EU trade mark with a reputation and a sign peacefully coexist does not allow the conclusion that in another part of the European Union, where that peaceful coexistence is absent, there is due cause legitimising the use of that sign. |
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3.

Article 9(1)(c) of Regulation No 207/2009 must be interpreted as meaning that the fact that, in part of the European Union, an EU trade mark with a reputation and a sign peacefully coexist does not allow the conclusion that in another part of the European Union, where that peaceful coexistence is absent, there is due cause legitimising the use of that sign.

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(1)  OJ C 156, 2.5.2016.

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