On September 27, 2007, the European Court of First Instance was satisfied with 10 invoices covering 33 months and totalizing only 420 € of cosmetic sales. The display of the mark in a product explanatory note visible through a minute had also convinced the Court of the trademark use. This decision enlightens the quality of the evidence of use to present to the Community jurisdictions and their drastic analysis of each of the elements filed.
THE BRIDGE (trademark to be evidenced at use) & (trademark used)
The European Court of Justice (CJEC) confirmed the First Instance Court’s position by ruling on September 13, 2007 that a registered trademark could not be exempted from evidencing its use by simply raising the use of a similar trademark which is also registered. For the Court, the minimum five years’ protection afforded by a trademark registration is conferred on it only as an individual trademark even where several trademarks having one or more common and distinctive elements are registered at the same time.
In order to decide whether a contested trademark belongs to a family of series of earlier marks, the earlier marks which are part of the family or series must be present on the market. The CJEC thus maintained the difference of practice in France. The French High Court took an opposite direction in 2006 by accepting evidence of use based on another registered trademark. The judge only determines whether this other sign is substantially different from the mark whose non-use is claimed.