In issue 23/2022 of “GRUR-Prax – Gewerblicher Rechtsschutz und Urheberrecht / Praxis im Immaterialgüter- und Wettbewerbsrecht” BOEHMERT & BOEHMERT partner and attorney at law Dr. Rudolf Böckenholt discusses a judgment of the ECJ of 12.10.2022 (T-752/21, GRUR-RS 2022, 26854) on the overall assessment of evidence in the context of proof of use.
The court held that the requirement of genuine use of a mark is not intended to assess commercial success, nor to control the economic strategy of a company. In considering whether use of a mark was genuine within the meaning of the statute, a comprehensive assessment of the concrete and objective evidence on file must be made.
The evidence could be subject to an interaction and be evaluated in an overall view, but only as far as this was objectively and concretely possible without mere probabilities or presumptions.
Evidence that is unrelated to each other cannot be evaluated together.
Dr. Böckenholts articel in German is available in the printed edition of GRUR-Prax 23/2022 or for subscribers of Beck-Online here.