Overview

Austrian company Maselli-Strickmode GmbH (“Maselli”) manufactures and sells clothing. In 1989 it registered the Austrian word mark WELLNESS in classes 16 (printed matter), 25 (clothing) and 32 (alcohol-free drinks). In 1999 and 2000,Maselli used the mark to designate an alcohol-free drink which it handed out as a gift with sales of clothing, in bottles marked ‘WELLNESS-DRINK’. In its promotional documents, Maselli also made reference to the free gifts. Maselli had not used the mark for drinks sold separately.
Silberquelle GmbH (“Silberquelle”), an Austrian company selling alcohol-free drinks, applied for cancellation of the WELLNESS mark for class 32 on the grounds of non-use. On 7 November 2006, the Austrian Patent Office cancelled the mark for goods in class 32. Maselli appealed the decision and the Austrian Oberster Patent- und Markensenat made a reference to the ECJ for a preliminary ruling.

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