Actual use of a trade mark is relevant for consideration of invalidity because of a technical result
06-03-2014 Print this page
When examining whether a sign consists exclusively of the shape of goods which is necessary to obtain a technical result, the competent authority may take into account the actual use made of the trade mark following its registration.
"60. None the less, as OHIM has stated in the second part of its second ground of appeal, the Court has held on a number of occasions that material which, although subsequent to the date of filing the application, enables conclusions to be drawn with regard to the situation as it was on that date can, without error of law, be taken into consideration (see orders in Alcon v OHIM, paragraph 41, and Torresan v OHIM, paragraph 84).
61. It follows that, in holding that the provisions at issue preclude consideration of the actual use made of the trade mark following its registration, the General Court erred in law."
IPPT20140306, CJEU, Pi-Design v OHIM
C-337/12 P and C-339/12 P - ECLI:EU:C:2014:129
