The following, inter alia, may be prohibited under paragraph 1: (c) any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.Ģ. (b) any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public the likelihood of confusion includes the likelihood of association between the sign and the trade mark (a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered
The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: trade mark shall confer on the proprietor exclusive rights therein. – the European Commission, by G. Braun, É. Gippini Fournier and S.L. Kalėda, acting as Agents,Īfter hearing the Opinion of the Advocate General at the sitting on 28 November 2019,ġ This request for a preliminary ruling concerns the interpretation of Article 9(2)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the trade mark (OJ 2009 L 78, p. 1), in the version prior to its amendment by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21), and of Article 9(3)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).Ģ The request has been made in proceedings between Coty Germany GmbH (‘Coty’), on the one hand, and Amazon Services Europe Sàrl, Amazon Europe Core Sàrl, Amazon FC Graben GmbH and Amazon EU Sàrl, on the other concerning the sale, in a marketplace of the website of bottles of perfume in respect of which the rights conferred by the trade mark have not been exhausted, by a third-party seller who did not have authorisation from Coty to do so.ģ Article 9 of Regulation No 207/2009, entitled ‘Rights conferred by trade mark’, in the version prior to its amendment by Regulation 2015/2424, provided, in paragraphs 1 and 2 thereof: – the German Government, by J. Möller, M. Hellmann and U. Bartl, acting as Agents, – Amazon Services Europe Sàrl and Amazon FC Graben GmbH, by V. von Bomhard, C. Elkemann and A. Lambrecht, Rechtsanwälte, – Coty Germany GmbH, by M. Fiebig, B. Weichhaus and A. Lubberger, Rechtsanwälte,
Having regard to the written procedure and further to the hearing on 19 September 2019,Īfter considering the observations submitted on behalf of:
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 26 July 2018, received at the Court on 7 September 2018, in the proceedingsĬomposed of E. Regan, President of the Chamber, I. Jarukaitis, E. Juhász, M. Ilešič (Rapporteur) and C. Lycourgos, Judges,Īdvocate General: M. Campos Sánchez-Bordona, (Reference for a preliminary ruling - EU trade mark - Regulation (EC) No 207/2009 - Article 9 - Regulation (EU) 2017/1001 - Article 9 - Rights conferred by a trade mark - Use - Stocking of goods for the purposes of offering them or putting them on the market - Storage with a view to dispatching goods sold in an online marketplace which infringe trade mark rights)