It can be argued

"Fresh off the press from the IPKat's deeply-appreciated old friend Professor Charles Gielen (NautaDutilh) comes a newsflash concerning a ruling [Onel/Omel] last Friday from the Benelux Office for Intellectual Property ("BOIP") (...) Says Charles:

"(…) The judgment is particularly likely to have a huge impact for enterprises that are active locally and have registered a CTM which they use only in one country of the Community.

It can be argued that the BOIP is implicitly also stating that a Benelux trade mark is not genuinely used if it is used in solely one Benelux country. Accordingly, such Benelux trade marks could also be in danger after five years because the BOIP could perceive the use of such trade marks in one country or province as non-use in the Benelux.

(…)  The European Court of Justice has not yet had an opportunity to rule on this issue, but we can expect a decision along similar lines as those discussed above. CTM owners will have to carefully check where their trade mark is being used before opposing later applications".

The IPKat begs to differ. He thinks this decision is wrong in principle and potentially damaging for businesses with trade marks. It would also be strange if the single territory of the Community adopted a different principle from that operating in member states, where the use of a trade mark in just one small corner of a very large jurisdiction is still regarded as genuine if it fulfils other criteria of use. The result may also be that a mark which has been used in the course of business in one member state only will fail to be regarded as genuinely used in revocation proceedings under Article 51.

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