Request for a preliminary ruling on when an individual trade mark is used in such a way as to infringe the exclusive right of a trade mark

Case C-690/17. Request for a preliminary ruling. Oberlandesgericht Dusseldorf (Germany). 

TRADE MARK LAW 

Preliminary questions: 

Is an individual trade mark used in such a way as to infringe rights for the purposes of point (b) of the second sentence of Article 9(1) of the EC Trade Mark Regulation/EU Trade Mark Regulation or point (a) of the second sentence of Article 5(1) of the Trade Mark Directive in the case where

• the individual trade mark is affixed to a product in respect of which the individual trade mark is not protected;
• the affixing of the individual trade mark by a third party is perceived by the public as a ‘test seal’, which is to say that, although the product has been manufactured and placed on the market by a third party not acting under the control of the trade mark proprietor, the trade mark proprietor has tested some of the characteristics of that product [Or. 3] and, on that basis, given it a particular rating shown on the test seal; and
• the individual trade mark is registered for, inter alia, ‘consumer information and consultancy with regard to the selection of goods and services, in particular using test and investigation results and by means of quality judgments’?

Should the Court of Justice answer Question 1 in the negative:

Is an individual trade mark used in such a way as to infringe rights for the purposes of point (c) of the second sentence of Article 9(1) of the EC Trade Mark Regulation and Article 5(2) of the Trade Mark Directive in the case where

• the individual trade mark has a reputation only as a test seal as described in Question 1; and
• the individual trade mark is used as a test seal by the third party?

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