European Union: Internal Use Not Sufficient to Qualify as Genuine Use

Published: December 4, 2024, in the INTA Bulletin

The General Court (GC) has issued a decision on whether Tertianum AG (Tertianum) and the use of its German designation of the International Registration TERTIANUM (No. 66578) in managing its own retirement homes constituted genuine use under Class 35 services (Case T-73/23). The services in that trademark include “business and commercial management of establishments, namely institutions in the health and care sectors, particularly retirement homes.”

Tertianum claimed that managing its own homes met the criteria for genuine use. However, in its decision on September 4, 2024, the GC agreed with the Board of Appeal, which found that managing one’s own retirement homes did not qualify as genuine use under Class 35. The GC clarified that such services require proof of management activities extending beyond internal use, indicating management for third parties. The decision emphasized that genuine use must align with the registered services’ commercial context and market practices, which was not sufficiently demonstrated by Tertianum’s internal operations.

The GC also dismissed Tertianum’s arguments concerning translation discrepancies in the description of services between German, French, and English. It concluded that these translations did not affect the outcome since the essence of “management” was consistent across languages.

Ultimately, the GC found that Tertianum failed to provide adequate proof that its trademark was genuinely used for the services covered in Class 35, as managing its own homes was insufficient without evidence of broader management activities provided to others​.

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