Judgment — ECLI:EU:T:2002:316
Date: 2002-12-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Other questions of substantive law
Procedure: Action for annulment - unfounded
Origin: Provisional data;Japan

Summary of the Judgment 
1. Community trade mark — Observations by third parties and opposition — Examin­
ation of opposition — Proof of'use of the earlier mark — Genuine use — Definition 
(Council Regulation No 40/94, Art. 43(2)) 
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SUMMARY — CASE T-39/01 
2. Community trade mark — Observations by third parties and opposition — Examin­
ation of opposition — Proof of use of the earlier mark — Genuine use — Assess­
ment criteria — Requirement for specific and objective evidence 
(Council Regulation No 40/94, Art. 43(2); Commission Regulation No 2868/95, 
Art. 1, Rule 22(2)) 
1. Genuine use of the earlier Community 
trade mark, within the meaning of 
Article 43(2) of Council Regulation 
(EC) No 40/94 on the Community 
trade mark implies real use of the mark 
on the market concerned for the pur­
pose of identifying the goods or ser­
vices. Genuine use therefore excludes 
minimal or insufficient use when deter­
mining that a mark is being put to real, 
effective use on a particular market. In 
that regard, even if it is the owner's 
intention to make real use of his trade 
mark, if the trade mark is not objec­
tively present on the market in a 
manner that is effective, consistent over 
time and stable in terms of the con­
figuration of the sign, so that it cannot 
be perceived by consumers as an indi­
cation of the origin of the goods or 
services in question, there is no genuine 
use of the trade mark. 
Accordingly, not only does genuine use 
of a trade mark exclude artificial use 
for the purpose of maintaining the 
mark on the register; genuine use 
means that the mark must be present 
in a substantial part of the territory 
where it is protected, inter alia exercis­
ing its essential function, which is to 
identify the commercial origin of the 
goods or services, thus enabling the 
consumer who acquired them to repeat 
the experience, if it proves to be 
positive, or to avoid it, if it proves to 
be negative, on the occasion of a 
subsequent purchase. 
(see paras 36-37) 
2. For the purposes of assessing genuine 
use of a Community trade mark, within 
the meaning of Article 43(2) of Regu­
lation (EC) No 40/94 on the Commu­
nity trade mark, account must be taken 
of the facts and circumstances of each 
case, regard being had to the wording 
of Rule 22(2) of R e g u l a t i o n 
No 2868/95 implementing Regulation 
No 40/94, which states that the indi­
cations and evidence for furnishing 
proof of use are to consist of indi­
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KABUSHIKI KAISHA FERNANDES v OHIM — HARRISON (HIWATI) 
cations concerning the place, time, 
extent and nature of the use. Genuine 
use cannot be proved by means of 
probabilities or suppositions, but must 
be demonstrated by solid and objective 
evidence of effective and sufficient use 
of the trade mark on the market-
concerned. 
(see paras 38, 47) 
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