Trademark rights in Europe are under threat!

TAE warns: a dispute over the trademark rights to a small bread roll could have repercussions for the European economy.

Brussels. The European Taxpayers’ Association (TAE) is following a trade mark dispute (Case C-409/12) before the European Court of Justice (ECJ) with great concern. In this test case concerning the rights to a bread roll, the judges must primarily address the question of whose understanding of a trade mark name is decisive, and the related question of whether a freely available generic term exists or whether the rights to the trade mark in question are worthy of protection. Until now, it has been sufficient for retailers and intermediaries to be familiar with the trade mark name. Unlike the practice in most EU countries, the Advocate General in charge of the case considers the general interpretation by the end consumer to be decisive for the validity of a trade mark.

“Very few have so far realised that this case could have enormous implications for the entire European economy. Depending on the outcome of the proceedings, the trade marks of countless European companies are under threat,” warns Rolf von Hohenhau, President of the TAE. The proceedings before the ECJ (Case C-409/12) concern the intellectual property rights of the Austrian company ‘backaldrin’, which invented and protected its ‘Kornspitz’ bread roll. As the case has been covered almost exclusively in the Austrian media, it appears that few have considered the potential implications of the CJEU’s ruling for the European economy. “Companies can continue to assert their intellectual property rights against other companies and the retail sector,” says Rolf von Hohenhau. However, should these rights in future depend entirely on consumer perception, it will be simply impossible for the companies concerned to exert any significant influence over that perception – small and medium-sized enterprises (SMEs) in particular would then be at risk of losing their trade marks, the protection of which has been costly.

The protection of trade marks and ideas is the foundation of successful entrepreneurship. Rolf von Hohenhau: “Our European companies must be able to rely on legal protection for their trade marks, ideas and innovations.” The rules must be clear and comprehensible and must not depend on the “random perception” of consumers. “We hope that the judges at the ECJ are aware of the far-reaching implications of their decision, particularly for our SMEs. I can only ask the judges to weigh up all the consequences very carefully.” Depending on the outcome of the proceedings, the legislator would otherwise have to establish clear trade mark protection, concluded von Hohenhau.