And we have a date! A date on which the long-awaited decision of the Court of Justice in the Onel-case will appear, namely December 19.
On this date it will be clear whether or not the Court of Justice will follow the opinion of the Advocate General Sharpston. This very reasonable opinion on the Onel-issue gave some important conclusions: crossing borders is not a requirement per se and use is all about creating market share. And all aspects of use should be assessed in a case by case basis, whereas the geographical scope of use is just one of the factors. Sharpston rightly stressed that the assessment of genuine use depends on the type of products sold as this influences the type of market, the sales channels etc.
In the event this Opinion will be followed by the ECJ the main question will be, what is creating market share? Sharpston describes this as use that has to have effects on the internal market.
In practice many European trademarks are filed while use only takes place within the borders of one Member State. The Onel-case brought this question up. Sharpston is clear: yes, local use can be sufficient. However, this use has to have “effects on the internal market by, for example, ensuring that the goods are known – in a commercially relevant manner – by participants in a market that is larger than that corresponding to the territory where the mark is used.”
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