# C_2017249EN.01000702.xml

| 31.7.2017 | EN | Official Journal of the European Union | C 249/7 |
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31.7.2017

EN

Official Journal of the European Union

C 249/7

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Judgment of the Court (Second Chamber) of 8 June 2017 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — W. F. Gözze Frottierweberei GmbH, Wolfgang Gözze v Verein Bremer Baumwollbörse

(Case C-689/15) (1)

((Reference for a preliminary ruling - Intellectual property - EU trade mark - Regulation (EC) No 207/2009 - Articles 9 and 15 - Filing of the cotton flower sign by an association - Registration as an individual trade mark - Licences to use the mark granted to cotton textile manufacturers affiliated with the association - Application for a declaration of invalidity or revocation - Concept of ‘genuine use’ - Essential function of indicating origin))

(2017/C 249/10)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicants: W. F. Gözze Frottierweberei GmbH, Wolfgang Gözze

Defendant: Verein Bremer Baumwollbörse

Operative part of the judgment

| 1. | Article 15(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that the affixing of an individual EU trade mark, by the proprietor or with his consent, on goods as a label of quality is not a use as a trade mark that falls under the concept of ‘genuine use’ within the meaning of that provision. However, the affixing of that mark does constitute such genuine use if it guarantees, additionally and simultaneously, to consumers that those goods come from a single undertaking under the control of which the goods are manufactured and which is responsible for their quality. In that case, the proprietor of the mark is entitled to prevent, pursuant to Article 9(1)(b) of that regulation, the affixing by a third party of a similar sign on identical goods, if that affixing creates a likelihood of confusion on the part of the public. |
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1.

Article 15(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that the affixing of an individual EU trade mark, by the proprietor or with his consent, on goods as a label of quality is not a use as a trade mark that falls under the concept of ‘genuine use’ within the meaning of that provision. However, the affixing of that mark does constitute such genuine use if it guarantees, additionally and simultaneously, to consumers that those goods come from a single undertaking under the control of which the goods are manufactured and which is responsible for their quality. In that case, the proprietor of the mark is entitled to prevent, pursuant to Article 9(1)(b) of that regulation, the affixing by a third party of a similar sign on identical goods, if that affixing creates a likelihood of confusion on the part of the public.

| 2. | Article 52(1)(a) and Article 7(1)(g) of Regulation No 207/2009 must be interpreted as meaning that an individual mark cannot be declared invalid, on the basis of a joint application of those provisions, because the proprietor of the mark fails to ensure, by carrying out periodic quality controls at its licensees, that expectations relating to the quality which the public associates with the mark are being met. |
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2.

Article 52(1)(a) and Article 7(1)(g) of Regulation No 207/2009 must be interpreted as meaning that an individual mark cannot be declared invalid, on the basis of a joint application of those provisions, because the proprietor of the mark fails to ensure, by carrying out periodic quality controls at its licensees, that expectations relating to the quality which the public associates with the mark are being met.

| 3. | Regulation No 207/2009 must be interpreted as meaning that its provisions on collective EU trade marks may not be applied mutatis mutandis to individual EU trade marks. |
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3.

Regulation No 207/2009 must be interpreted as meaning that its provisions on collective EU trade marks may not be applied mutatis mutandis to individual EU trade marks.

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(1)  
  OJ C 118, 4.4.2016.

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