Armin Häupl v Lidl Stiftung & Co. KG.
Date: 2007-06-14
16. According to settled case-law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult  [1997] ECR I-4961, paragraph 23, and Case C-53/03 Syfait and Others  [2005] ECR I-4609, paragraph 29).
26. Further, it should be pointed out, as stated in the third recital in the preamble to the Directive, that the latter is not intended to approximate fully the trade mark laws of the Member States. The fifth recital therein states in that respect that ‘… Member States … remain free to fix the provisions of procedure concerning the registration, the revocation and the invalidity of trade marks acquired by registration; … they can, for example, determine the form of trade mark registration and invalidity procedures, decide whether earlier rights should be invoked either in the registration procedure or in the invalidity procedure or in both and, if they allow earlier rights to be invoked in the registration procedure, have an opposition procedure or an ex officio  examination procedure or both …’. It is thus apparent from those recitals in the preamble to the Directive that it does not harmonise the procedural aspect of trade mark registration.
43. The need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Community (see, to that effect, Case C‑287/98 Linster [2000] ECR I-6917, paragraph 43, and Case C-40/01 Ansul  [2003] ECR I-2439, paragraph 26).
44. In paragraph 31 of the judgment in Ansul , the Court took the view that a uniform interpretation must be given to the concept of ‘genuine use’ of a trade mark as used in Articles 10 and 12 of the Directive. It is apparent from the seventh, eighth and ninth recitals in the preamble to the Directive and from Articles 10 to 15 thereof that it was the Community legislature’s intention that the maintenance of rights in a trade mark be subject to the same condition regarding genuine use in all the Member States, so that the level of protection enjoyed by trade marks does not vary according to the legal system concerned (paragraphs 27 to 29 of Ansul ). Since the objective of proper reasons is to make it possible to justify situations in which there is no genuine use of the mark in order to avoid revocation of the mark, their function is thus closely linked to that of genuine use, with the result that the concept of ‘proper reasons’ addresses the same need for a uniform interpretation as does the concept of ‘genuine use’ of the mark.
51. In that respect, it should be noted that the eighth recital in the preamble to the Directive states that ‘in order to reduce the total number of trade marks registered … in the Community … it is essential to require that registered trade marks must actually be used or, if not used, be subject to revocation’. It appears in the light of that recital that it would be contrary to the scheme of Article 12(1) of the Directive to confer too broad a scope on the concept of proper reasons for non-use of a mark. Achievement of the objective set out in that recital would be jeopardised if any obstacle, however minimal yet none the less arising independently of the will of the owner of the trade mark, were sufficient to justify its non-use.
54. It follows that only obstacles having a sufficiently direct relationship with a trade mark making its use impossible or unreasonable, and which arise independently of the will of the proprietor of that mark, may be described as ‘proper reasons for non-use’ of that mark. It must be assessed on a case-by-case basis whether a change in the strategy of the undertaking to circumvent the obstacle under consideration would make the use of that mark unreasonable. It is the task of the national court or tribunal, before which the dispute in the main proceedings is brought and which alone is in a position to establish the relevant facts, to apply that assessment in the context of the present action.