2 octobre 2018

(No) proper use of Styrian pumpkin seed oil?

To begin with, let me mention one thing. I am from Styria, and we take our pumpkin seed oil pretty serious. So how does it come that the above Austrian mark was deleted after 20 years?

Well, first let us point out that the mark shown above was registered as an individual mark (i.e. not a collective or certification mark). A certification mark is a type of mark that is used to show consumers that particular goods and/or services, or their providers, have met certain standards. In Austria this type of mark has been in force since September 1, 2017 and for EU marks since October 1, 2017. Before that, individual marks have been used for this purpose.

Based on the decision of the ECJ (C-689/15, Gözze) the use of an individual mark as a certification mark is no longer recognized as "serious trade mark use". This is because the use of an individual mark as a mere guarantee of a certain product quality does not fulfil its main function as a guarantee of origin from a specific company.

In the present case, the Chamber of Agriculture in Styria authorized the association "Styrian Pumpkin Oil Community" to use the mark for marketing reasons. The individual mark was made available to a large number of farmers through license agreements for the use as a seal of quality.

The Austrian Supreme Court ruled that the facts to be assessed in the present case are comparable to those decided by the ECJ (C-689/15, Gözze). Thus the individual mark was not used in its function as a guarantee of origin from a specific company.

For similar cases it should now be considered to file for a certification mark. There are two important limitations for an EU certification mark. First, it cannot be owned by a person carrying out a business involving the supply of the goods and services of the kind certified. The owner of a certification mark is precluded from using the mark for the certified goods or services covered. Second, it cannot be filed for the purpose of distinguishing goods or services certified in respect of geographical origin. Certification marks should be applied for the goods and services that will be certified by the owner of the mark.

Thus, lucky me, there is still hope for my beloved Styrian pumpkin seed oil.

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