Referral C-579/25 (DelicaSea, 2 Sep 2025)

1.

Must Article 5(1) and (3)(b) of the Trade Marks Directive 2008 and Article 9(1) and (3)(b) of the Community Trade Marks Regulation 2009 be interpreted as meaning that the terms ‘offering’ and ‘putting … on the market’ in those articles may also include the offering for sale or the sale and/or supply of original goods bearing a trade mark which have not been put on the market in the Community (now the EEA) by or with the consent of the trade mark proprietor and which have the customs status of non-Community (now non-Union) goods, when the goods are offered for sale and/or sold and/or supplied while under the external transit procedure or the customs warehousing procedure, if the (potential) buyer, at the time of the offer for sale, the sale and/or the supply, has the firm and definite intention to import those goods and put them on the market in a Member State where the trade mark proprietor has a national trade mark right or in the Community (now the EU) if the trade mark proprietor has a Community trade mark (now a European Union trade mark) and there are no concrete indications to suggest that this intention will not actually be carried out?



1a.

Is it relevant to the answer to question 1 whether this intention was actually carried out after the offer for sale, the sale and/or the supply?



1b.

Is it relevant to the answer to question 1 whether that (potential) buyer is a wholesaler or retailer established in the EU and/or has previously imported and/or sold goods of that type in the EU?



1c.

Is it relevant to the answers to the above questions whether the person offering for sale and/or selling and/or supplying those goods bearing a trade mark knew or should reasonably have understood at the time of offering for sale and/or selling and/or supplying those goods that the (potential) buyer had the firm and definite intention to import those goods and put them on the market in the EU?



2.

Must Article 13 of the Enforcement Directive, read in conjunction with Article 45 of the TRIPS Agreement, be interpreted as precluding national legislation such as that in Article 2.21(4) of the BCIP (Benelux Convention on Intellectual Property), under which the proprietor of an infringed trade mark right can claim transfer of the profits made by the infringer through the infringement only if there is bad faith?



2a.

If the answer to question 2 is in the negative, must Article 13 of the Enforcement Directive, read in conjunction with Article 45 of the TRIPS Agreement, be interpreted as precluding the interpretation of national legislation according to which the proprietor of an infringed trade mark right cannot claim transfer of the profits made by the infringer as a result of the infringement if the infringer, whose actions are subsequently found to be infringing, has contested the allegation of infringement with a defence that cannot reasonably be regarded as futile from the outset?



3.

Must Article 8 of the Enforcement Directive, read in conjunction with Article 3 of the Enforcement Directive, be interpreted as meaning that, in the case of unauthorised parallel trade in original goods bearing a trade mark, it precludes, in principle, the interpretation of a national provision according to which the measure of providing information not only relates to the provision of information on infringements established or deemed plausible by a court, but also to acts which have not been established by a court or deemed plausible as constituting an infringement?