What's the 'use'?


Raluca Vasilescu

In June 2009, the Municipal Court of Bucharest ruled on when a trademark owner’s rights are exhausted for non-use of the mark.

The importance of the decision lies in the detailed and very reasoned judgment on what constitutes use of a mark. This decision will influence future cases.

According to Romanian Trademark Law, any interested person can request in court that rights be deemed exhausted if a trademark owner hasn’t used the mark for five years. The burden of proof of use is on the trademark owner. Failure to submit proper evidence of use will result in the exhaustion of rights. As the law gives very few indications about what constitutes ‘use’ of the mark, practitioners have to rely on the guidance given by court decisions.

In a recent case, cosmetics company Danya sued a German subsidiary of L’Oréal for the exhaustion of rights of three international registrations of ‘Jade’ with a pictorial device. Danya claimed the marks were not in use on Romanian territory.

non-use, proof of use, Romania Trademark Law