'Without Due Cause': Use of the Defendant's Sign Before the Claimant's mark is Filed-Leidseplein Beheer and de Vries v Red Bull GmbH and Red Bull Nederland BV (C-65/12)

摘要

The Court of Justice of the European Union considered the meaning of "without due cause" under art.5(2) of Directive 2008/95. The CJEU provided that if the defendant's use of a sign in good faith predated the filing date of the claimant's mark, then the claimant may have to "tolerate" the defendant's use. Whether the claimant will have to tolerate that use is a question for national courts. The CJEU also set out three broad issues that national courts must take into account when assessing "without due cause ". This article discusses the treatment of "without due cause" and comments on the CJEU's ruling.