Opinion of the Advocate General — ECLI:EU:C:2019:4
Date: 2019-01-09
Language of the case: German
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded
Origin: United Kingdom

summary, use in the context of clinical trials of a mark registered for a tested medicinal product does not in my view constitute genuine use of that mark. However, it is not my view that, where there is no marketing authorisation, a mark registered for a medicinal product undergoing a clinical trial cannot, under any circumstances, be put to genuine use. (vii) Exceptions that prove the rule 85. By way of illustration, under Article 83(1) and (2) of Regulation No 726/2004, by way of exemption from Article 6 of Directive 2001/83, Member States may make a non-authorised medicinal product available for compassionate use to a group of patients with a chronically or seriously debilitating disease or whose disease is considered to be life-threatening, which cannot be treated satisfactorily by an authorised medicinal product. They can do so in particular in relation to a medicinal product being tested in a clinical trial. Other aspects of compassionate use are, as a general rule, regulated at national level. 86. Accordingly, because the Member States have a degree of freedom as regards the rules governing compassionate use, I cannot completely rule out that compassionate use of a medicinal product for which a mark has been registered might involve genuine use of that mark. 87. First, it is irrelevant that, in accordance with national provisions which still so provide, it may be that such a medicinal product is made available for compassionate use with no view to making a profit. As is apparent from the Court’s case-law, the fact that a trade mark proprietor does not seek to make a profit does not mean that his objective cannot be to create and, later, to preserve an outlet for his goods or services. (46) 88. Secondly, use of the mark need not be quantitatively significant for it to be considered ‘genuine’. Even minimal use can be sufficient to qualify as genuine, on condition that such use is considered to be justified in the economic sector concerned. (47) Similarly, a non-authorised medicinal product, which can be put to compassionate use, may be intended to be marketed in the future to patients with a chronically or seriously debilitating disease or whose disease is considered to be life-threatening. That market is therefore restricted and, accordingly, the acts constituting genuine use may likewise be limited in quantity. 89. Thirdly, to my mind, compassionate use of a medicinal product for which a mark has been registered cannot place its proprietor in a less favourable situation than other actors in the market for medicinal products. A mark registered for a medicinal product put to compassionate use might in fact be present on the market in circumstances comparable to those in which an authorised medicinal product is marketed. 90. Fourthly and lastly, it seems to me that a systemic reading of the provisions of Regulation No 726/2004 and Directive 2001/83 corroborates the need for an interpretation that does not automatically rule out genuine use in the context of compassionate use. First, Article 6 of Directive 2001/83, which sets out the principle that non-authorised medicinal products cannot be placed on the market, comes at the beginning of Title III, ‘Placing on the market’, of that directive. Secondly, Article 83(1) of Regulation No 726/2004 explicitly establishes an exemption from Article 6 of Directive 2001/83. If making a medicinal product available in the circumstances described in Article 83(1) and (2) of Regulation No 726/2004 were not a placing on the market, such an exemption would be meaningless. 91. In conclusion, I do not rule out that a mark registered for pharmaceutical products and health-care products, in Class 5 of the Nice Agreement, and, specifically, for a medicinal product covered by Directive 2001/83, may in certain cases be put to genuine use before the marketing authorisation is granted for that medicinal product. Whether or not use is sufficient must be assessed on a case-by-case basis. That said, to my mind, use of such a mark in the context of clinical trials cannot be genuine use within the meaning of Article 51(1)(a) of Regulation No 207/2009 (Article 58(1)(a) of Regulation 2017/1001). In the context of a clinical trial, a mark is not used in order to create or preserve an outlet for the goods or services for which it was registered. 92. In the light of the foregoing observations, in my view the second part of the first ground of appeal is unfounded. 2. The second ground of appeal (a) Positions of the parties 93. By the second ground of appeal, concerning primarily paragraphs 60 and 61 of the judgment under appeal, the appellant contends that the General Court infringed Article 51(1)(a) of Regulation No 207/2009 (Article 58(1)(a) of Regulation 2017/1001) by ruling out any proper reason for non-use of the mark at issue. Specifically, the appellant asserts that the General Court wrongly ruled out any proper reason for non-use in situations where, first, the application relating to the trial in question is filed a long time after the mark was registered and, secondly, the financial resources committed are not those that would have been necessary to conclude the clinical study as quickly as possible. 94. In support of this ground, the appellant argues, first, that, by criticising it for applying for a clinical trial authorisation a long time after registration of the mark, the General Court rendered the five-year period of grace meaningless. Indeed, according to the appellant, a trade mark for a medicinal product whose period of grace expired would, in practice, become unusable, because only applying for marketing authorisation could justify non-use. 95. Secondly, since the General Court took financial investment into consideration in assessing whether there was a proper reason for non-use, financially sound undertakings would find it easier to protect their investments adequately using trade mark law than financially weaker undertakings. In any event, the General Court cannot rely on the abstract proposition that additional investment would have made it possible to complete the clinical trial in question in the present instance more quickly. 96. EUIPO and, assuming that the second ground of appeal is admissible, Hecht-Pharma, assert that this ground is unfounded. 97. According to EUIPO, the finding that the acts carried out by the appellant were within its field of influence and the clinical trial could not amount to a proper reason for non-use in the present instance is based on an overall assessment that takes into account inter alia, besides the passage of time and the investment made, the fact that no evidence was produced indicating that the trial in question was concluded, that the clinical trial in question is subject to national rules and is merely one stage in a process seeking to market a medicinal product to treat multiple sclerosis and, lastly, that there is no obligation in law to designate a medicinal product during a clinical trial. 98. Hecht-Pharma acknowledges that an abnormally long procedure for authorisation of a medicinal product could constitute a proper reason for non-use. However, as regards the present case, Hecht-Pharma asserts, in particular, that the appellant allowed three years to pass between registration of the mark at issue and the application for authorisation to carry out a clinical trial and that, to date, it has not filed an application for marketing authorisation. (b) Assessment 99. In Häupl, (48) the Court established that three requirements must all be satisfied to justify non-use of a mark. The obstacle must, first, arise independently of the will of the owner of the trade mark concerned, secondly, it must have a sufficiently direct relationship with the trade mark, and, thirdly, it must make use of that mark impossible or unreasonable. 100. However, in denying the existence of a proper reason for non-use the General Court relied on factors related only to the first requirement, that the obstacle must be independent of the will of the proprietor. To be precise, in paragraph 61 of the judgment under appeal, the General Court found that, although conducting a clinical trial could in fact be a reason for non-use of a mark, the acts and events that the appellant adduced in the present instance were within its field of influence and area of responsibility, and therefore did not relate to obstacles independent of its will. 101. In reaching that finding, the General Court took account of several criteria, that is to say, first, the time that elapsed between registration of the mark – which was the result not of any legal obligation but of the appellant’s own choice – and the start of the clinical trial (the exact date of whose completion could not be determined) (49) and, second, whether or not the investment that the appellant made was adequate. (50) 102. Accordingly, whilst I do not wish to express an opinion on issues relating to the presence of a sufficiently direct relationship between the obstacle and the mark at issue, or to the impact of that obstacle on whether use of that mark was possible or reasonable, on which the General Court did not rule in the judgment under appeal, it should be examined whether, where there is an obstacle for reasons relating to the initiation and financing of the clinical trial for a medicinal product in respect of which that mark is registered, that obstacle is (or is not) independent of the will of a proprietor. (51) 103. In Häupl, (52) the Court stated that Article 19(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (53) may constitute a factor in the interpretation of the concept of proper reasons as used in EU law. As examples, Article 19(1) cites import restrictions on or other government requirements for goods or services protected by a trade mark. A legal obstacle can therefore also be a proper reason for non-use. 104. It is true that, according to my analysis of the first ground of appeal, in the system set up inter alia by Directive 2001/83 and Regulation No 726/2004 there can be genuine use of a mark registered for a non-authorised medicinal product in exceptional situations only and genuine use of such a mark in the context of clinical trials is impossible. (54) 105. However, first, it cannot be argued that every legal constraint directly linked to the mark that makes its use impossible constitutes an obstacle which should automatically be classified as a proper reason for non-use. Every commercial activity must be carried on in accordance with certain legislative provisions. I note that in this context the Court has already held that the concept of ‘proper reasons’ must not be given too broad a scope. (55) Accordingly, to my mind, the mere fact that there is an obstacle to the use of a trade mark, such as the requirement to comply with EU legislation in order to market the goods covered by that mark, is not sufficient to justify non-use of that mark. (56) 106. Secondly, as regards EU marks and irrespective of considerations relating to the role of clinical trials in the regulation of medicinal products for human use, conducting a clinical trial for a medicinal product for which a mark has been registered is, for its proprietor, an act by means of which the proprietor seeks to eliminate an obstacle to genuine use of that mark. 107. Indeed, where a proprietor can perform acts liable to eliminate an obstacle to use of the mark or, at least, to reduce the duration of such an obstacle, that obstacle cannot be said to be fully independent of his will. Nevertheless, I do not exclude the possibility that, where those acts require the proprietor to undergo a specific procedure, that proprietor may encounter other obstacles caused by the authorities responsible for conducting that procedure. I am inclined to think that such obstacles can be proper reasons for non-use. In relation, for example, to the situation of the proprietor of a registered mark for a medicinal product, it could be that the authorities responsible for giving prior authorisation for a clinical trial failed to examine within the time limit laid down the application for authorisation made by the proprietor. 108. The Court’s case-law according to which the notion of ‘proper reasons’ refers, essentially, to circumstances unconnected with the trade mark proprietor corroborates that view. (57) 109. Admittedly, a clinical trial and any substantial modifications made to it must be authorised in advance by a Member State. (58) Nevertheless, such authorisations are granted in accordance with criteria set out in the relevant legislation, which are, therefore, predictable for a proprietor acting as sponsor of a clinical trial. Indeed, the sponsor takes responsibility for the initiation, for the management and for setting up the financing of a clinical trial. (59) 110. In respect of the present appeal, it should be noted that the criteria used by the General Court in the judgment under appeal and criticised in the second ground of appeal are covered by the appellant’s responsibility so defined. (60) Nor is there anything to indicate that the appellant adduced other facts capable of showing that obstacles for which it was not responsible affected the commencement or performance of the clinical trial. In any event, assessing those facts does not fall within the jurisdiction of the Court of Justice hearing an appeal against the judgment of the General Court. 111. Moreover, I am of the view that, if the applicant were to rely on such facts, it would be necessary to assess on a case-by-case basis whether, during the period laid down in Article 51(1)(a) of Regulation No 207/2009 (Article 58(1)(a) of Regulation 2017/1001), there was an appreciable likelihood that a change in company strategy aimed at overcoming the obstacle could have made it possible to use the mark at issue before expiry of that period. If there was not, a proper reason for non-use should in my view be found to have existed. If there was such a likelihood, a proprietor cannot contend that there was a proper reason for non-use. 112. In the light of the foregoing, my view is that the second ground of appeal is unfounded. VII. Conclusion 113. Having regard to the foregoing, I propose that the Court should dismiss the appeal and order the appellant to pay the costs. 1 Original language: French. 2 T‑276/16, EU:T:2017:611, ‘the judgment under appeal’. 3 Council Regulation of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1). 4 Regulation of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 5 On the equivalence of those articles, see point 23 of this Opinion. 6 Moreover, the application for revocation that gave rise to the proceedings in which the EUIPO decisions were adopted and the judgment under appeal was delivered was indeed lodged on 18 November 2013, that is to say, under Regulation No 207/2009. Nevertheless, in a similar situation, relating to the relationship between Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Regulation No 207/2009, the Court of Justice referred to the provisions of Regulation No 207/2009, which was applicable at the time when the EUIPO decisions were adopted and, therefore, at the time when the judgment under appeal was delivered, even though the revocation proceedings in question had been commenced under Regulation 40/94. See judgment of 26 September 2013, Centrotherm Systemtechnik v centrotherm Clean Solutions, C‑609/11 P, EU:C:2013:592. The Court of Justice held, in paragraph 31 of that judgment: ‘However, since [Regulation No 207/2009] merely codified Regulation No 40/94 and the relevant provisions thereof did not undergo any amendment in the course of that codification, references will be made only to Regulation No 207/2009 in the discussion below’. See, also, Opinion of Advocate General Sharpston in Centrotherm Systemtechnik v centrotherm Clean Solutions (C‑609/11 P and C‑610/11 P, EU:C:2013:308, point 4). 7 See, by analogy, judgment of 21 February 2018, Repower v EUIPO – repowermap.org (REPOWER) (T‑727/16, EU:T:2018:88, paragraph 27). 8 Furthermore, the same applies as regards the second subparagraph of Article 18(1) of Regulation 2017/1001, which is almost identical to the second subparagraph of Article 15(1) of Regulation No 207/2009. The only difference is that the following words have been added at the end of that article in Regulation 2017/1001: ‘regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor’. In addition, recital 25 of Regulation 2017/1001 has no equivalent in Regulation No 207/2009. It reads as follows: ‘For reasons of equity and legal certainty, the use of an EU trade mark in a form that differs in elements which do not alter the distinctive character of that mark in the form in which it is registered should be sufficient to preserve the rights conferred regardless of whether the trade mark in the form as used is also registered’. However, the appellant’s situation is not the same as that described in recital 25. There is nothing to indicate that the appellant used the mark at issue in a form that differed from that in which it was registered. 9 This case will therefore not afford the Court of Justice an opportunity to rule on whether provisions of Regulation 2017/1001 that have no equivalent in its predecessor regulation apply in the context of proceedings commenced under Regulation No 207/2009. See Textilis (C‑21/18, pending before the Court of Justice) for a similar issue. 10 Order of 22 February 2018, Martín Osete v EUIPO (C‑529/17 P, not published, EU:C:2018:105). 11 See, in particular, paragraph 27 of the appeal which gave rise to the order of 22 February 2018, Martín Osete v EUIPO (C‑529/17 P, not published, EU:C:2018:105), in which the appellant criticised the General Court’s finding that ‘that the evidence provided by the [EU trade mark proprietor] relating to regulatory hurdles faced by the latter failed to (sufficiently) demonstrate that in the specified period proper reasons for non-use were at hand’. Similarly, in paragraph 29 of that appeal, the appellant stated that ‘it should be reiterated and stressed that the existence of proper reasons is nonetheless clearly demonstrated by the extensive evidence regrouped …’. 12 Judgment of 13 September 2007, Il Ponte Finanziaria v OHIM (C‑234/06 P, EU:C:2007:514, paragraph 73). To illustrate that line of case-law, the appellant also refers to the order of 27 January 2004, La Mer Technology (C‑259/02, EU:C:2004:50, paragraphs 21 and 24), and the judgment of 21 November 2013, Recaro v OHIM – Certino Mode (RECARO) (T‑524/12, not published, EU:T:2013:604, paragraphs 25 and 26). 13 The appellant is referring here to a clinical trial in the strict sense, and the acts performed as part of that trial, that is to say, delivery of over 400 000 capsules bearing the mark Boswelan to a university hospital, the invoicing in respect of the products by a third party undertaking acting as intermediary, and use of the mark when recruiting participants for the trials and in relation to publicly accessible data relating to those trials. 14 See, to that effect, Opinion of Advocate General Ruiz-Jarabo Colomer in Ansul (C‑40/01, EU:C:2002:412, point 49). 15 See footnote 8 of this Opinion. 16 See, amongst others, Sitko, J.J., ‘Special Criteria of Trade Mark Protection with Regard to Pharmaceutical Products in the European Union Legal System’, International Review of Intellectual Property and Competition Law, 2014, No 6, pp. 667 and 668; Trzebiatowski, M., Obowiązek używania znaku towarowego. Studium z prawa polskiego na tle prawnoporównawczym, C.H. Beck, Warsaw 2007, pp. 147 and 148. 17 In its judgment of 24 November 1999, I ZB 17/97 (Neue Juristische Wochenschrift 2000, 1487), the Bundesgerichtshof (Federal Court of Justice, Germany) decided a similar question in the context of interpreting a German provision transposing Article 10 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) into domestic law. In paragraphs 18 and 19 of that judgment, that court stated that use of a mark in the context of a procedure for the licensing of medicinal products cannot be regarded as genuine use. However, it also stated that performing a prescribed authorisation procedure can, in principle, be regarded as a legitimate reason for non-use. A number of French courts, likewise, have accepted that a marketing authorisation application, which is the logical consequence of clinical trials, is a proper reason for non-use of a mark registered for a medicinal product subject to the authorisation procedure (see judgment of 1 June 1999, tribunal de grande instance de Paris (Regional Court, Paris, France), Third Chamber, Almonda Sociedade Gestora de participacoes sociais v Opfermann Arzneimittel GmbH, PIBD 1999 682 III-354). It can therefore be inferred from those judgments that use in the context of clinical trials of a mark registered for a tested product is not genuine use. 18 See, to that effect, judgment of 8 June 2017, W. F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2017:434, paragraph 37). 19 Judgment of 15 January 2009, Silberquelle (C‑495/07, EU:C:2009:10, paragraph 18). See also judgment of 17 July 2014, Reber Holding v OHIM (C‑141/13 P, not published, EU:C:2014:2089, paragraph 32), in which the Court of Justice held that not all proven commercial exploitation can automatically qualify as ‘genuine use’ of the mark at issue. 20 Judgment of 8 June 2017, W. F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2017:434, paragraphs 39 to 41). See, also, Opinion of Advocate General Kokott in Pandalis v EUIPO (C‑194/17 P, EU:C:2018:725, point 65). 21 Judgment of 11 March 2003 (C‑40/01, EU:C:2003:145). 22 Judgment of 11 March 2003 (C‑40/01, EU:C:2003:145). 23 Judgment of 9 December 2008 (C‑442/07, EU:C:2008:696, paragraph 23). 24 Judgment of 11 March 2003 (C‑40/01, EU:C:2003:145). 25 See, to that effect, Trzebiatowski, M., ‘Pojęcie rzeczywistego używania znaku towarowego (orzecznictwo krajowe na tle orzecznictwa wspólnotowego)’, Europejski Przegląd Sądowy, 2010, p. 22. 26 Judgment of 11 March 2003, Ansul (C‑40/01, EU:C:2003:145, paragraph 38). 27 Judgment of 11 March 2003, Ansul (C‑40/01, EU:C:2003:145, paragraph 39). See, also, order of 27 January 2004, La Mer Technology (C‑259/02, EU:C:2004:50, paragraph 23). 28 See, to that effect, judgment of 15 January 2009, Silberquelle (C‑495/07, EU:C:2009:10, paragraph 19). 29 Directive of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67). 30 Regulation of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ L 2004 136, p. 1). 31 Under Article 6 of Directive 2001/83, no medicinal product may be placed on the market of a Member State unless a marketing authorisation has been issued by the competent authorities of that Member State in accordance with that directive or an authorisation has been granted in accordance with Regulation No 726/2004. Similarly, it can be seen from Article 76 of Directive 2001/83 that the Member States must take all appropriate action to ensure that only medicinal products in respect of which a marketing authorisation has been granted in accordance with EU law are distributed on their territory. Regulation No 726/2004 provides in Article 3(1) that no medicinal product appearing in the annex to that regulation may be placed on the market within the European Union unless a marketing authorisation has been granted by the European Union in accordance with the provisions of that regulation. Furthermore, under Article 3(2) of that regulation, any medicinal product not appearing in the annex may be granted a marketing authorisation by the European Union in accordance with the provisions of that regulation, if: (a) the medicinal product contains a new active substance which, on the date of entry into force of that regulation, was not authorised in the European Union; or (b) the applicant shows that the medicinal product constitutes a significant therapeutic, scientific or technical innovation or that the granting of authorisation in accordance with Regulation No 726/2004 is in the interests of patients or animal health at EU level. 32 See Article 86(1) and Article 87 of Directive 2001/83. 33 See Article 2(a) of Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use (OJ 2001 L 121, p. 34) and Annex I to that directive in so far as it clarifies the concept of a ‘clinical trial’. See also Article 2(2)(a) of Regulation (EU) No 536/2014 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use, and repealing Directive 2001/20/EC (OJ 2014 L 158, p. 1). 34 See Article 9 of Directive 2001/20 and Article 4 of Regulation No 536/2014. 35 See, inter alia, Article 10 of Directive 2001/20 and Article 15 of Regulation No 536/2014. 36 See, inter alia, Article 2(e) of Directive 2001/20 and Article 2(2)(14) of Regulation No 536/2014 which, in order to determine responsibilities clearly, define a sponsor as an individual, company, institution or organisation which takes responsibility for the initiation, for the management and for setting up the financing of the clinical trial. 37 Judgment of 11 March 2003, Ansul (C‑40/01, EU:C:2003:145, paragraph 37). See also point 61 of this Opinion. 38 That is moreover also the approach that the appellant adopted in its appeal. In particular, in paragraph 17 of the appeal the appellant states that that ‘it is clear that denying any genuine use essentially on the basis of the sole argument that the product in question cannot be marketed or promoted to the public at large is incorrect’. The appellant also argues, in relation to the second part of the first ground of appeal, that, according to that judgment, there can be genuine use provided that the marketing is being prepared or is imminent. Thereafter, it asserts in relation to the second part of the first ground of appeal that, ‘irrespective of whether those conditions are satisfied in the present case, that judgment of the Court of Justice shows that there can also be genuine use even where there is no act directed at an unlimited or, at the very least, very great number of persons’. It is thus true that concepts used in relation to Directive 2001/83 do not necessarily correspond to concepts used in the context of trade mark law. Nevertheless, the appellant itself seems to believe that the concept of ‘marketing’ within the meaning of Article 6 of Directive 2001/83 corresponds to the concept of ‘marketed’ used by the Court Justice in its judgment of 11 March 2003, Ansul (C‑40/01, EU:C:2003:145). 39 Sitko, J.J., op. cit., p. 658. 40 Mosback H., ‘Protection of pharmaceutical trade marks in Europe’, Journal of Intellectual Property Law Practice, 2013, vol. 8, no 1, p. 71, and Sitko, J.J., op. cit., p. 658. 41 Mosback H., op. cit., p. 71. 42 Judgment of 11 March 2003 (C‑40/01, EU:C:2003:145, paragraph 37). 43 See also, to that effect, Opinion of Advocate General Wahl in Olainfarm (C‑104/13, EU:C:2014:342, point 25). 44 See point 69 of this Opinion. 45 See my Opinion in OHIM v Grau Ferrer (C‑597/14 P, EU:C:2016:2, point 102 and the case-law cited). 46 Judgment of 9 December 2008, Verein Radetzky-Orden (C‑442/07, EU:C:2008:696, paragraphs 16 and 17). 47 See order of 27 January 2004, La Mer Technology (C‑259/02, EU:C:2004:50, paragraph 24). See also, as regards the use of marks in the pharmaceutical sector, judgment no 13-11513 of 5 July 2017 of the commercial chamber of the Cour de cassation (Court of Cassation, France). 48 Judgment of 14 June 2007 (C‑246/05, EU:C:2007:340, paragraphs 54 and 55). 49 See paragraphs 55 to 58 and 60 of the judgment under appeal. 50 See paragraph 59 of the judgment under appeal. 51 Furthermore, as I set out above in the part of this Opinion on the admissibility of the grounds of appeal, the second ground is in my view admissible, as it relates to the nature of the circumstances that can be taken into account in order to find that an obstacle is independent of the will of the proprietor. It seems to me that the Court of Justice found a similar ground to be admissible in its judgment of 13 September 2007, Il Ponte Finanziaria v OHIM (C‑234/06 P, EU:C:2007:514, paragraph 99). 52 Judgment of 14 June 2007 (C‑246/05, EU:C:2007:340, paragraph 48). 53 Agreement on Trade-Related Aspects of Intellectual Property Rights, which is contained in Annex 1C to the Marrakesh Agreement establishing the World Trade Organisation, approved on behalf of the European Community by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). 54 See point 91 of this Opinion. 55 Judgment of 14 June 2007, Häupl (C‑246/05, EU:C:2007:340, paragraph 51). 56 See, to that effect, judgment of 8 June 2017, Kaane American International Tobacco v EUIPO – Global Tobacco (GOLD MOUNT) (T‑294/16, not published, EU:T:2017:382, paragraph 42). 57 Judgment of 13 September 2007, Il Ponte Finanziaria v OHIM (C‑234/06 P, EU:C:2007:514, paragraph 102). 58 See point 69 of this Opinion. 59 See point 69 of this Opinion. 60 See point 109 of this Opinion.