Document Type

Article

Disciplines

International Law

Abstract

Since its inception, one of the primary goals of the establishment of the European Union has been to create a single internal market, providing for the free movement of goods, services, people, and capital, and to ultimately allow Europe to compete with the growing economic powers of the world. Undoubtedly, trademark law has an integral role in the development of such a system. The Community trademark system was introduced four decades after the European Economic Community was first established and was created with the aim of improving the functioning of the internal market as a single market.

Under the current interpretation of the Community Trademark Regulation ("the Regulation"), genuine use in one EU member state is sufficient to demonstrate genuine use of a Community trademark and warrants trademark protection throughout the EU.2 When the Regulation first became operational in 1996, the EU consisted of a mere twelve Member States; however, since that time, it has expanded significantly to its current size of twenty-seven Member States. In light of the European Union's continued expansion, the existing framework of the Community trademark must be adjusted to cater to a significantly larger internal market. While use in a very limited portion of the Community is not necessarily sufficient to warrant protection throughout the EU, a requirement of use in all twenty-seven member states would be far too restrictive and would conflict with the purpose and intentions of the internal market system.

This article examines the need for a shift in the EU's current framework of its Community trademark system, specifically the applicable genuine use requirements. Section I provides an overview of the current trademark system within the EU, specifically focusing on the Community trademark system and how such a system contributes to the goals of the EU. The CTM system advances the functioning of the EU's internal market by enabling registrants to adapt their activities to the scale of the Community and acquire exclusive trademark rights throughout the entire EU.

Section II introduces the current dilemma regarding how to interpret the relevant legislation that defines the genuine use requirements of a Community trademark. The recent case law forming the center of this controversy is introduced and various approaches to the debate are discussed. A final interpretation on the issue of CTM use requirements is critical for maintaining the system's societal and practical advantages and ensuring the continued advancement of the EU's internal market.

Section III describes the trademark system in the United States and presents a comparison between the American system and the European system, specifically focusing on use requirements. The U.S.'s solutions to universal issues that are also inherent in the EU's CTM system may provide guidance for the EU in designing a functional use requirement.

Section IV concludes by discussing the need to redefine the use requirements of Community trademarks in light of an expanding EU It is suggested that, rather than using a quantitative approach based on national borders to define genuine use requirements, a market-penetration approach, based on the tests utilized in the United States, should be applied to the internal market as a whole. Reforming the EU's traditional concept of territoriality by applying a market approach will ensure the flexibility necessary to apply the current CTM legislation well into the future, while satisfying the original goals of the CTM system and the broader goals of the EU.

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