Order — ECLI:EU:C:2004:50
Date: 2004-01-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Concepts: Protection of personal data
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Order 
1. Approximation of laws — Trade marks — Directive 89/104 — Reasons for revoca­
tion of the trade mark — Lack of 'genuine use' of the trade mark — Definition 
(Council Directive 89/104, Arts. 10(1) and 12(1» 
2. Approximation of laws — Trade marks — Directive 89/104 — Reasons for revoca­
tion of the trade mark — Lack of 'genuine use' of the trade mark — Consideration of 
circumstances subsequent to the filing of the application for revocation — Whether 
permissible — Conclusion to be drawn by the national court 
(Council Directive 89/104, Art. 12(1)) 
I - 1159 
SUMMARY — CASE C-259/02 
1. Articles 10(1) and 12(1) of First Direc­
tive 89/104 on trade marks must be 
interpreted as meaning that there is 
'genuine use' of a trade mark where it 
is used in accordance with its essential 
function, which is to guarantee the 
identity of the origin of the goods or 
services for which it is registered, in 
order to create or preserve an outlet for 
those goods or services; genuine use 
does not include token use for the sole 
purpose of preserving the rights con­
ferred by that mark. When assessing 
whether use of the trade mark is genu­
ine, regard must be had to all the facts 
and circumstances relevant to estab­
lishing whether the commercial use of 
the mark is real in the course of trade, 
particularly whether such use is viewed 
as warranted in the economic sector 
concerned to maintain or create a share 
in the market for the goods or services 
protected by the mark, the nature of 
those goods or services, the character­
istics of the market and the scale and 
frequency of use of the mark. When it 
serves a real commercial purpose, in 
the circumstances cited above, even 
minimal use of the mark or use by 
only a single importer in the Member 
State concerned can be sufficient to 
establish genuine use within the mean­
ing of the directive. 
(see para. 27, operative part 1) 
2. While First Directive 89/104 on trade 
marks makes the classification of use of 
the trade mark as 'genuine use', within 
the meaning of Article 12(1), con­
sequential only on consideration of 
the circumstances which pertain in 
respect of the relevant period and 
which predate the filing of the appli­
cation for revocation, it does not pre­
clude, in assessing the genuineness of 
use during the relevant period, account 
being taken, where appropriate, of any 
circumstances subsequent to that filing. 
It is for the national court to determine 
whether such circumstances confirm 
that the use of the mark during the 
relevant period was genuine or 
whether, conversely, they reflect an 
intention on the part of the proprietor 
to defeat that claim 
(see para. 33, operative part 2) 
I-1160