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<p>Directive (EU) 2015/2436 to approximate the laws of the Member States relating to trade marks significantly expanded the scope of permissible use of another’s trademark. It allows a third party to use someone else’s trademark to indicate or refer to the goods or services of the trademark owner, provided that such use is consistent with fair practices in industrial and commercial matters. The allowance for a third party to use another’s trademark to indicate or refer to the goods or services of the trademark holder introduces uncertainty regarding whether such use constitutes “use” of the trademark as interpreted by the CJEU jurisprudence. Consequently, questions arise about whether referential use is encompassed by the exclusivity granted by registration, and whether infringement should be assessed by different criteria, or if such use is outside the scope of exclusivity conferred by the trademark right. Furthermore, the decision on whether to prohibit such use could potentially broaden this exclusivity in specific instances. Depending on the resolution, the burden of proof incumbent upon the parties in any legal proceedings concerning the referential use of a trademark may differ.</p>

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Referential Use – A Limitation or Expansion of the Right to a Trademark

  • 期刊论文

  • 发表日期：

    2025年1月7日

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  • Krystyna Szczepanowska-Kozłowska

摘要

Directive (EU) 2015/2436 to approximate the laws of the Member States relating to trade marks significantly expanded the scope of permissible use of another’s trademark. It allows a third party to use someone else’s trademark to indicate or refer to the goods or services of the trademark owner, provided that such use is consistent with fair practices in industrial and commercial matters. The allowance for a third party to use another’s trademark to indicate or refer to the goods or services of the trademark holder introduces uncertainty regarding whether such use constitutes “use” of the trademark as interpreted by the CJEU jurisprudence. Consequently, questions arise about whether referential use is encompassed by the exclusivity granted by registration, and whether infringement should be assessed by different criteria, or if such use is outside the scope of exclusivity conferred by the trademark right. Furthermore, the decision on whether to prohibit such use could potentially broaden this exclusivity in specific instances. Depending on the resolution, the burden of proof incumbent upon the parties in any legal proceedings concerning the referential use of a trademark may differ.