The matter at hand

The appellant in this case, the Landeskammer für Land- und Forstwirtschaft in Steiermark (Styria, Austria), is a body governed by public law, the task of which is to ensure the sustainability of agriculture and forestry in Styria. On 15 October 2007, its international registration designating the EU for a figurative mark containing the word elements ‘Steierisches Kürbiskernöl’ (meaning: Styrian pumpkin seed oil), was published by EUIPO. The registration covered the following goods in class 29: ‘Pumpkin seed oil produced in accordance with the specifications of Regulation No 1263/96’.

The trade mark was used, under license from the appellant, by the Styrian Pumpkin Seed Oil Association, which is an association aimed to protect the interests of its members in connection with the use of the designation of origin for Steierisches Kürbiskernöl. In this context, the association allows its members to use the trade mark, provided that they undergo checks to ensure that they comply with the specifications of the designation of origin.

On 18 October 2013, Ms Schmid applied to EUIPO for the revocation of the trade mark on the basis of Article 51(1)(a) of Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark, claiming the trade mark had not been put to genuine use. The application was upheld by the Cancellation Division, but the Fourth Board of Appeal annulled that decision, after which the General Court, in turn, annulled that decision, holding that the trade mark had not been used in accordance with its essential function to guarantee the identity of origin of the marked goods, but to guarantee their geographical origin. The appellant subsequently appealed to the ECJ.

The judgment of the ECJ

The ECJ recalls that it is settled case law that there is ‘genuine use’ of a trade mark, where the mark is used in accordance with its essential function to guarantee the identity of origin of the marked goods or services to the end user, by enabling him to distinguish those goods or services from those of another origin. The ECJ recalls that a trade mark must therefore offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality.

The ECJ rules that it follows that the General Court correctly held that there is no genuine use where a trade mark is used in such a way as to guarantee the geographical origin and the characteristics attributable to the origin of the goods of different manufacturers, as such use does not indicate to consumers that the goods are manufactured under the control of a single undertaking that can be held responsible for their quality. Although the Styrian Pumpkin Seed Oil Association allows only members whose goods comply with the specifications of the association to use the trade mark, the fact remains that the association is not involved in the manufacture of the goods and the responsibility for their quality remains with the various manufacturers.

The ECJ concludes that the General Court was right in holding that the use of the mark in question does not fulfil the essential function of an individual mark and therefore does not qualify as genuine use within the meaning of Articles 15(1) and 51(1)(a) of Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark.

The ECJ adds that this finding is not invalidated by the appellant's argument that this would remove the possibility of protecting the sign in question as an EU trade mark, considering that Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark also offers the possibility of registering a collective trade mark.