British IPO just reported a new reference for prelimary ruling – Leidseplein Beheer B.V. and Hendrikus Jacobus Marinus De Vries v Red Bull GmbH and Red Bull Nederland B.V. C-65/12, which deals with following interesting question:

Is Article 5(2) of Directive 89/104/EEC [protection of a reputed trade mark] to be interpreted as meaning that there can be due cause within the meaning of that provision also where the sign that is identical or similar to the trade mark with a reputation was already being used in good faith by the third party/parties concerned before that trade mark was filed?

Importance of the trade mark functions for the ‘hard’ infringement cases was stressed repeatedly by CJEU in keyword advertising cases (also before e.g. L’Oreal v. Bellure C-487/07, Hölterhoff C-2/00, Arsenal C-206/01), most notably in regard to Article 5(2), in its Interflora C-323/09 decision. Its huge imporance was also highlighted in Budějovický Budvar v Anheuser-Busch C‑482/09, where CJEU countered a trade mark rights abuse by emphasising the role of trade mark functions also in the case of invalidity proceedings. Huťko does not know the details of this case, but from the first glance, the case looks like a good candidate for further interpretation of this doctrine (which Huťko had some difficulties to grasp after Interflora decision). Lets see ..