Prejudiciële vragen over intrekking nationaal merk waarvan prioriteit is ingeroepen

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Prejudiciële vragen over intrekking nationaal merk waarvan prioriteit is ingeroepen

Zaak C-148/17 Peek and Cloppenburg. Prejudiciële vragen. Duitsland

Merkenrecht. A request for a preliminary ruling in a case which concerns an action for invalidity or revocation of a German national trade mark which forms the basis of a claim for the seniority of an EU trade mark.

The following questions are referred to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Article 14 of 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 (OJ 2008 L 299, p. 25) and Article 34(2) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark:

“1. Is the fact that the invalidity or revocation of a national trade mark which forms the basis of a claim for the seniority of an EU trade mark and which has been surrendered or allowed to lapse may be established a posteriori only where the conditions of invalidity or revocation are present not only at the time when the trade mark was surrendered or allowed to lapse but also at the time of the judicial decision establishing its invalidity or revocation, compatible with Article 14 of Directive 2008/95/EC?

2. If the first question is answered in the affirmative: Does claiming seniority under Article 34(2) of Regulation (EC) No 207/2009 have the effect that the right under the national trade mark lapses and can no longer be used in such a way as to maintain rights attached to it, or is the national trade mark preserved by virtue of EU law, even though it no longer exists in the register of the Member State concerned, with the result that it can and must continue to be used in such a way as to maintain the rights attached to it?”

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