The date with regard to which it must be determined whether the continuous period of five years has ended is the date on which the application or counterclaim in question was filed: assessment with regard to the date of the last hearing would be against the consequences of revocation as provided for in the regulation.
Husqvarna manufactures appliances and tools for gardening and landscaping and is the holder of the three-dimensional Union trade mark for the goods 'sprinklers for irrigation'. From July 2014 to January 2015, Lidl offered for sale a spiral hose set, consisting of a spiral hose, a sprinkler nozzle and a coupling sleeve. Husqvarna brought an action for infringement against Lidl before the Landgericht Düsseldorf. Lidl requested the revocation of Husqvarna’s rights in the mark at issue in the main proceedings, alleging non-use of that mark. The Landgericht Düsseldorf upheld Husqvarna's claims and dismissed Lidl's counterclaim. Lidl brought an appeal on the judgement before the Oberlandesgericht Düsseldorf which set aside that judgement. In doing so, the Oberlandesgericht Düsseldorf considered that the relevant date, for the purposes of calculating the continuous period of non-use, was not the date on which Lidl had filed its counterclaim, but the date of the last hearing before that court. Husqvarna brought an appeal on a point of law before the referring court, the Bundesgerichtshof.
The referring court wishes to know whether, in the case of a counterclaim for revocation of an EU trade mark which was filed prior to the expiry of the five-year period of non-use referred to in Article 51(1)(a) of the Community Trade Mark Regulation and Article 58(1)(a) of the Union Trade Mark Regulation, the relevant date for the purposes of calculating the five-year period is governed by those regulations and, if so, on how that date is to be determined.
The Court of Justice considers that it follows from the provisions of the Community Trade Mark Regulation that the date with regard to which it must be determined whether the continuous period of five years has ended is the date on which the application or counterclaim in question was filed. An interpretation of that regulation according to which the continuous five-year period of non-use laid down in Article 51(1)(a) of that regulation must be assessed with regard to the date of the last hearing would be inconsistent with the consequences of revocation provided for in that regulation. An assessment with regard to the date of the last hearing would lead to the revocation taking effect as from the date, in the course of the proceedings, on which the conditions referred to in Article 51(1)(a) are fulfilled, even though those conditions were not met at the time the counterclaim was filed.
Nelisa de Bruin