18.6.2011

Official Journal of the European Union

C 179/10

(Case C-149/11)

2011/C 179/18

Language of the case: Dutch

Referring court

Gerechtshof te‘s-Gravenhage

Parties to the main proceedings

Applicant: Leno Merken

Defendant: Hagelkruis Beheer B.V.

Question referred

1.Must Article 15(1) of Regulation (EC) No 207/2009 (1) on the Community trade mark be interpreted as meaning that use of a Community trade mark within the borders of a single Member State is sufficient to constitute genuine use of that trade mark, provided that, had it been a national trade mark, such use would have been regarded as genuine use in that Member State (cf. Joint Statement No 10 regarding Article 15 of Council Regulation (EC) No 40/94 (2) of 20 December 1993 and the Opposition Guidelines of the OHIM)?

2.If question 1 is answered in the negative, can the use of a Community trade mark within a single Member State as described above never be regarded as genuine use in the Community as referred to in Article 15(1) of Regulation (EC) No 207/2009?

3.If the use of a Community trade mark within a single Member State can never be regarded as genuine use in the Community, what requirements must be laid down — in addition to the other factors — in respect of the territorial scope of the use of a Community trade mark when assessing genuine use in the Community?

4.Alternatively — contrary to what has been stated above — must Article 15 of the Regulation on the Community trade mark be interpreted as meaning that the assessment of genuine use in the Community should be done wholly in the abstract, without reference to the borders of the territory of the individual Member States (and that, for example, market share (product markets/geographic markets) should be taken as the point of reference)?

(1) OJ 2009 L 78, p. 1.

(2) OJ 1994 L 11, p. 1.