# C_2016314EN.01000602.xml

| 29.8.2016 | EN | Official Journal of the European Union | C 314/6 |
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29.8.2016

EN

Official Journal of the European Union

C 314/6

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Judgment of the Court (Seventh Chamber) of 22 June 2016 (request for a preliminary ruling from the Harju Maakohus — Estonia) — Irina Nikolajeva v Multi Protect OÜ

(Case C-280/15) (1)

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((Reference for a preliminary ruling - EU trade mark - Regulation (EC) No 207/2009 - Article 9(3) and Article 102(1) - Obligation on an EU trade mark court to issue an order prohibiting a third party from proceeding with acts of infringement - No application seeking such an order - Concept of ‘special reasons’ for not ordering such a prohibition - Concept of ‘reasonable compensation’ in respect of acts occurring after publication of an application for registration of an EU trade mark and before publication of the registration of the trade mark))

(2016/C 314/09)

Language of the case: Estonian

Referring court

Referring court

Harju Maakohus

Parties to the main proceedings

Parties to the main proceedings

Applicant: Irina Nikolajeva

Applicant:

Defendant: Multi Protect OÜ

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 102(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as not precluding an EU trade mark court from refraining, pursuant to certain principles of national procedural law, from issuing an order which prohibits a third party from proceeding with acts of infringement on the ground that the proprietor of the trade mark concerned has not applied for such an order before that court. |
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1.

Article 102(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as not precluding an EU trade mark court from refraining, pursuant to certain principles of national procedural law, from issuing an order which prohibits a third party from proceeding with acts of infringement on the ground that the proprietor of the trade mark concerned has not applied for such an order before that court.

| 2. | The second sentence of Article 9(3) of Regulation No 207/2009 must be interpreted as precluding the proprietor of an EU trade mark from being able to claim compensation in respect of acts of third parties occurring before publication of an application for registration of a trade mark. In the case of acts of third parties committed during the period after publication of the application for registration of the mark concerned but before publication of its registration, the concept of ‘reasonable compensation’ in that provision refers to recovery of the profits actually derived by third parties from use of the mark during that period. On the other hand, that concept of ‘reasonable compensation’ rules out compensation for the wider harm which the proprietor of the mark may have suffered, including, as the case may be, moral prejudice. |
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2.

The second sentence of Article 9(3) of Regulation No 207/2009 must be interpreted as precluding the proprietor of an EU trade mark from being able to claim compensation in respect of acts of third parties occurring before publication of an application for registration of a trade mark. In the case of acts of third parties committed during the period after publication of the application for registration of the mark concerned but before publication of its registration, the concept of ‘reasonable compensation’ in that provision refers to recovery of the profits actually derived by third parties from use of the mark during that period. On the other hand, that concept of ‘reasonable compensation’ rules out compensation for the wider harm which the proprietor of the mark may have suffered, including, as the case may be, moral prejudice.

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(1)  OJ C 262, 10.8.2015.

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