"HEITEC II
Regulation (EC) No. 207/2009 Art. 8 Paragraphs 2 and 4, Art. 54 Paragraphs 1 and 2, Art. 101 Paragraph 2, Art. 110 Paragraph 1 Sentence 2, Art. 111 Paragraph 2; RL 2008/95 / EG Art. 9 Para. 1 and 2; MarkenG § 21 Paragraph 1 and 2, § 125b No. 3
The Court of Justice of the European Union is asked to interpret Art. 9 Para. 1 and 2 of Directive 2008/95 / EC of the European Parliament and of the Council of October 22, 2008 on the approximation of the laws of the Member States relating to trademarks and Art 1 and 2 and Art. 111 (2) of the Council Regulation (EC) No. 207/2009 of February 26, 2009 on the Community trade mark submitted the following questions for a preliminary ruling:
1. Can a toleration within the meaning of Article 9 Paragraph 1 and 2 of Directive 2008/95 / EC as well as Article 54 Paragraph 1 and 2 and Article 111 Paragraph 2 of Regulation (EC) No. 207/2009 be excluded not only through an appeal to be lodged with an authority or a court, but also through conduct that takes place without the intervention of an authority or a court?
2. In the event that question 1 is answered in the affirmative: Provides a warning, with which the owner of the older logo requires the owner of the newer logo to refrain from using the logo and to conclude a contractual penalty in the event of an infringement before legal proceedings are initiated , a toleration within the meaning of Article 9 Paragraph 1 and 2 of Directive 2008/95 / EC as well as Article 54 Paragraph 1 and 2 and Article 111 Paragraph 2 of Regulation (EC) No. 207/2009 Behavior?
3. Does the calculation of the five-year tolerance period within the meaning of Art. 9 Paragraph 1 and 2 of Directive 2008/95 / EC as well as Art. 54 Paragraph 1 and 2 and Art. 111 Paragraph 2 of Regulation (EC) No. 207/2009 in the case of a judicial remedy to the submission of the legal remedy to the court or the access of the legal remedy to the defendant? Is it important in this context that the access of the legal remedy to the opposing party is delayed beyond the five-year period due to the fault of the owner of the earlier trademark?
4. Includes the forfeiture according to Art. 9 Para. 1 and 2 of Directive 2008/95 / EC as well as Art. 54 Para. 1 and 2 and Art. 111 Para. 2 of Regulation (EC) No. 207/2009 in addition to injunctive relief claims also follow-up claims under trademark law aimed at compensation, information and destruction?
BGH, decision of July 23, 2020 - I ZR 56/19 - Higher Regional Court Nuremberg
Regional Court Nuremberg-Fürth
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