Case C-133/20: European Pallet Association v PHZ. Preliminary questions Hoge Raad – Netherlands.
Via gov.co.uk. Preliminary questions: “1.
(a) Does successful recourse to Article 13(2) of the CTM Regulation require that the further commercialisation of the branded products concerned adversely affect or are liable to adversely affect one or more of the functions of the trade mark referred to in paragraph 3.2.4 above?
(b) If the answer to question 1(a) is in the affirmative, does that constitute a requirement that is additional to that of the existence of ‘legitimate reasons’?
(c) Does it suffice for successful recourse to Article 13(2) of the CTM Regulation that one or more of the functions of the trade mark referred to in question 1(a) above are adversely affected?
(a) In general, can it be said that, under Article 13(2) of the CTM Regulation, a trade mark proprietor may oppose the further commercialisation of goods under his trade mark if those goods have been repaired by persons other than the trade mark proprietor or persons to whom he has given consent to do so?
(b) If the answer to question 2(a) is in the negative, is the existence of ‘legitimate reasons’ within the meaning of Article 13(2) of the CTM Regulation, after repairs by a third party of goods put on the market by or with the consent of the trade mark proprietor, dependent on the nature of [Or. 9] the goods or the nature of the repair performed (as further explained in 3.2.5 above), or on other circumstances, such as special circumstances like those in the present case, set out above in 2.1 (ii) and (iii)?
(a) Is opposition by the trade mark proprietor as referred to in Article 13(2) of the CTM Regulation to the further commercialisation of goods repaired by third parties excluded if the trade mark is used in such a way that it does not give the impression that there is a commercial connection between the trade mark proprietor (or his licensees) and the party who further commercialises the goods, for example if, by the removal of the brand and/or by the additional labelling of the goods, it is clear after the repair that the repair has not been carried out by or with the consent of the trade mark proprietor or a licensee of the latter?
(b) Does that mean that significance should be attached to the answer to the question of whether the trade mark can be easily removed without compromising the technical soundness or practical usability of the goods?
4. When answering the foregoing questions, is it important whether it is a collective trade mark under the CTM Regulation that is at issue, and if so, in what respect?”