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Case C-409/12: Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 6 September 2012 — Backaldrin Österreich The Kornspitz Company GmbH v Pfahnl Backmittel GmbH
ECLI:EU:UNKNOWN:62012CN0409
62012CN0409
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22.12.2012
Official Journal of the European Union
C 399/9
(Case C-409/12)
2012/C 399/14
Language of the case: German
Referring court
Parties to the main proceedings
Applicant: Backaldrin Österreich The Kornspitz Company GmbH
Defendant: Pfahnl Backmittel GmbH
Questions referred
Has a trade mark become ‘the common name for a product or service’ within the meaning of Article 12(2)(a) of Directive 2008/95/EC, where
(a) although traders know that the mark constitutes an indication of origin they do not generally disclose this to end consumers, and
(inter alia) on those grounds, end consumers no longer understand the trade mark as an indication of origin but as the common name for goods or services, in respect of which the trade mark is registered?
Can the conduct of a proprietor be regarded as ‘inactivity’ for the purposes of Article 12(2)(a) of Directive 2008/95/EC simply if the proprietor of the trade mark remains inactive notwithstanding the fact that traders do not inform customers that the name is a registered trade mark?
If, as a consequence of acts or inactivity of the proprietor, a trade mark has become a common name for end consumers, but not in the trade, is that trade mark liable to be revoked if, and only if, end consumers have to use this name because there are no equivalent alternatives?
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 (Codified version), (OJ 2008 L 299, p. 25).