A collective trade mark indicates that the goods and services displaying the mark originate from members of a particular association. The collective trade mark in this case was Der Grune Punkt - Duales System Deutschland GmbH’s ('DGP') 'Der Grüne Punkt' trade mark (the 'Green Dot'). The mark consists of two curved arrows forming a circle (either in black and white or two shades of green). It originally covered a wide range of goods and services from beverages, industrial products, advertising and transport. The purpose of the mark was to indicate to consumers that the packaging was included in the collective mark owner’s recycling system and to distinguish them from other goods and services.
In 2012, the EUIPO revoked all rights connected to the mark for all goods expect those specifically for packaging, for lack of genuine use. DGP filed an appeal to the EUIPO Board of Appeal and later the General Court. The appeals were dismissed on the basis that DGP had failed to provide proof that the mark was being used to guarantee the origin of the goods themselves and that consumers did not associate the mark with the packaged goods themselves.
The CJEU’s judgment
The Court of Justice of the European Union ('CJEU') set aside the judgment of the General Court and annulled the decision of the EUIPO Board of Appeal. The CJEU confirmed the approach to examining genuine use of a collective mark which looks at:
- Whether use of the mark in the particular sector created or maintained a share in the market for the goods and services protected by the mark
- The nature of those goods or services
- The characteristics of the market
- The scale and frequency of use of the mark.
The CJEU commented that with regards to some types of goods which, by their nature, result in daily packaging waste (e.g. food, drinks, personal care and housekeeping products), a consumer could be influenced by the association of the mark with the recycling system and the environmentally-friendly disposal of the packaging. The CJEU concluded that it cannot be said that the mark did not contribute to preserving an outlet for the goods themselves (i.e. the presence of the Green Dot mark on the packaging might influence the consumer’s buying decision of that particular product).
This case highlights the importance of examining the use of a collective mark in the context of the sector with which it is associated. In this case, the court recognised the apparent shift in consumer purchasing patterns towards environmentally-friendly packaging for products.