On 11 June 2009 the ECJ answered preliminary questions of the Oberste Gerichtshof in Austria in the Lindt&Sprüngli v Frans Hauswirth case with regard to the relevant criteria for establishing whether the applicant of a community trademark was acting in bad faith (Article 51(1) under b Regulation 40/94).

The ECJ ruled that all relevant circumstances that existed at the moment of application should be taken into account and that in particular the following criteria are relevant:

  • the fact that the applicant knew or should have known that a third party is using (in at least one member state of the European Community) an identical or similar sign for identical or similar goods, which use could lead to confusion with the sign that was applied for;
  • the intention of the applicant to prevent the third party from any further use of the sign; and
  • the extent of legal protection of the sign of the third party and the sign that was applied for.