21.2.2009

Official Journal of the European Union

C 44/17

Judgment of the Court (Grand Chamber) of 9 December 2008 (reference for a preliminary ruling from the Oberster Patent- und Markensenat — Austria) — Verein Radetzky-Orden v Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’

(Case C-442/07) (1)

(Trade marks - Directive 89/104/EEC - Article 12 - Revocation - Marks registered by a non-profit-making association - Concept of ‘genuine use’ of a trade mark - Charitable activities)

(2009/C 44/28)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Verein Radetzky-Orden

Defendant: Bundesvereinigung Kameradschaft ‘Feldmarschall Radetzky’

Re:

Reference for a preliminary ruling — Oberster Patent- und Markensenat — Interpretation of Article 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Trade marks used on business papers, writing paper, on advertising material and in the form of badges by a non-profit-making association in the context of its activity of seeking to preserve military traditions and collecting and distributing donations — Classification of that use as ‘genuine use’ capable of preserving the rights attached to the mark?

Operative part of the judgment

Article 12(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be construed as meaning that a trade mark is put to genuine use where a non-profit-making association uses the trade mark, in its relations with the public, in announcements of forthcoming events, on business papers and on advertising material and where the association's members wear badges featuring that trade mark when collecting and distributing donations.

(1) OJ C 283, 24.11.2007.