W. F. Gözze Frottierweberei GmbH and Wolfgang Gözze v Verein Bremer Baumwollbörse.
Date: 2017-06-08
35


That is the case where the public is likely to believe that the goods or services designated by the sign used by the third party and those designated by the mark come from the same undertaking or, as the case may be, from economically linked undertakings (see, inter alia, judgments of 6 October 2005, Medion, C‑120/04, EU:C:2005:594, paragraph 26; of 10 April 2008, adidas and adidas Benelux, C‑102/07, EU:C:2008:217, paragraph 28; and of 25 March 2010, BergSpechte, C‑278/08, EU:C:2010:163, paragraph 38).
37


As regards Article 15(1), it is settled case-law that there is ‘genuine use’ of a trade mark, within the meaning of that provision, where the mark is used in accordance with its essential function, which is to guarantee the identity of 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 conferred by the mark (see, inter alia, judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43; of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 72; and of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 29).
41


As regards individual marks, the essential function is to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin. For the trade mark to be able to fulfil its essential role in the system of undistorted competition which the Treaty seeks to establish and maintain, it must offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality (see, inter alia, judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 28; of 12 November 2002, Arsenal Football Club, C‑206/01, EU:C:2002:651, paragraph 48; and of 6 March 2014, Backaldrin Österreich The Kornspitz Company, C‑409/12, EU:C:2014:130, paragraph 20).
42


The requirement, when applying Article 15(1) of Regulation No 207/2009, of use in accordance with the essential function of indicating origin reflects the fact that, while a mark may, admittedly, also be used to fulfil other functions, such as that of guaranteeing the quality of that product or service or that of communication, investment or advertising (see, inter alia, to that effect, judgments of 18 June 2009, L’Oréal and Others, C‑487/07, EU:C:2009:378, paragraph 58, and of 22 September 2011, Interflora and Interflora British Unit, C‑323/09, EU:C:2011:604, paragraph 38), it is nevertheless subject to the sanctions provided for in that regulation where it has not been used in accordance with its essential function for an uninterrupted period of five years. In that case, the rights of the proprietor of the mark are declared to be revoked, in accordance with the rules laid down in Article 51(1)(a) of Regulation No 207/2009, unless he is able to invoke proper reasons for failing to make use of the mark in a way that enables it to fulfil its essential function.
54


As regards the specific case of a risk of deception, it should be noted that that situation presupposes the existence of actual deceit or a sufficiently serious risk that the consumer will be deceived (judgments of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraph 41, and of 30 March 2006, Emanuel, C‑259/04, EU:C:2006:215, paragraph 47).
55


Furthermore, in order to find that a mark had been registered in breach of the ground for refusal relating to the risk of deception, it must be established that the sign filed for the purposes of registration as a trade mark creates per se such a risk (see, to that effect, judgment of 4 March 1999, Consorzio per la tutela del formaggio Gorgonzola, C‑87/97, EU:C:1999:115, paragraphs 42 and 43).