Loss of distinctive character
(Article 51(1)(b) CTM Regulation, see also Article 12(2)(a) Directive 2008/95)
2 preliminary rulings
Judgment of 6 Mar 2014, C-409/12 (Backaldrin) 
Article 12(2)(a) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in a case such as that at issue in the main proceedings, a trade mark is liable to revocation in respect of a product for which it is registered if, in consequence of acts or inactivity of the proprietor, that trade mark has become the common name for that product from the point of view solely of end users of the product.
Article 12(2)(a) of Directive 2008/95 must be interpreted as meaning that it may be classified as -inactivity- within the meaning of that provision if the proprietor of a trade mark does not encourage sellers to make more use of that mark in marketing a product in respect of which the mark is registered.
Article 12(2)(a) of Directive 2008/95 must be interpreted as meaning that the revocation of a trade mark does not presuppose that it must be ascertained whether there are other names for a product for which that trade mark has become the common name in the trade.
Judgment of 27 Apr 2006, C-145/05 (Levi Strauss)
Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in order to determine the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, the national court must take into account the perception of the public concerned at the time when the sign, the use of which infringes that trade mark, began to be used.
Where the competent national court finds that the sign in question constituted an infringement of the mark at the time when the sign began to be used, it is for that court to take such measures as prove to be the most appropriate in the light of the circumstances of the case in order to safeguard the proprietor’s rights deriving from Article 5(1) of Directive 89/104; such measures may include, in particular, an order to cease us of that sign.
It is not appropriate to order cessation of the use of the sign in question if it has been established that the trade mark has lost its distinctive character, in consequence of acts or inactivity of the proprietor, so that it has become a common name within the meaning of Article 12(2) of Directive 89/104, and the trade mark has therefore been revoked.
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