IP case law Court of Justice

Referral C-148/17 (Peek & Cloppenburg, 24 Mar 2017)

1. Is the fact that the invalidity or revocation of a national trade mark which forms the basis of a claim for the seniority of an EU trade mark and which has been surrendered or allowed to lapse may be established a posteriori only where the conditions of invalidity or revocation are present not only at the time when the trade mark was surrendered or allowed to lapse but also at the time of the judicial decision establishing its invalidity or revocation, compatible with Article 14 of Directive 2008/95/EC?

2. If the first question is answered in the affirmative: Does claiming seniority under Article 34(2) of Regulation (EC) No 207/2009 have the effect that the right under the national trade mark lapses and can no longer be used in such a way as to maintain rights attached to it, or is the national trade mark preserved by virtue of EU law, even though it no longer exists in the register of the Member State concerned, with the result that it can and must continue to be used in such a way as to maintain the rights attached to it?

Case details on the CJEU website (external link)