The Court of Justice of the EU has ruled that, where a European Community Trade Mark ("CTM") is only used in a single EU country, the trade mark owner may still be able to establish "genuine use" of that ctM in the EU. CTMs which have not, within five years of registration, been put to "genuine use" in the EU in connection with the goods or services in respect of which they are registered may be subject to revocation.

Hagelkruis Beheer applied for a Benelux registration for the word mark OMEL. Leno Merken, owner of a Community word mark ONEL for two of the same classes, opposed the registration. In response, Hagelkruis requested that Leno provide proof of use of the ONEL mark. Leno had proved use of the earlier mark ONEL in the Netherlands, but not in the rest of the EU.

The Court rejected an arbitrary rule on territorial scope of genuine use, stating territorial borders should be disregarded.

The Court concluded that an assessment of genuine use should take account of "all relevant facts and circumstances". These include the characteristics of the market concerned, the nature of the goods or services protected by the mark, and the territorial extent, scale and frequency of use.

Brand owners who have taken the trouble to register a CTM must ensure they have a strategy in place to maintain it, through genuine EU use on a sufficient scale.

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