Amicus Brief

C-361/22, Industria de Diseno Textil, S.A. (Inditex) v. Buongiorno Myalert, S.A.

Published: September 29, 2022

Our Position

The Court should not read the amended wording on referential trademark use (as included in the 2015 Trademark Directive) as implicitly included in the prior version of the Directive. The amended Directive intentionally has a wider scope and therefore allows for a broader exception to the rights of the trademark owner.

Furthermore, the Court should provide additional guidance on whether the referential trademark use at issue is in accordance with “honest practices in industrial and commercial matters.” This term should be interpreted regarding the purpose of referential use which is to communicate an information into the public. Over-excessive referential use creates a risk of association as it is not in line with the communicative function of referential use.

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