Non-original car spare parts and trade mark infringement: is there no room for referential use? The AG Opinion in C-334/22 Audi

Abstract

Abstract In her Opinion in C-334/22 Audi, Advocate General (AG) Medina found that provisions of the EU trade mark law must be interpreted as meaning that an element placed on a non-original automotive spare part (radiator grille) for fitting the original mark of the car manufacturer would not constitute ‘use of a sign in the course of trade’. She ruled out, however, the possibility of relying on the referential use limitation in such circumstances. This gives rise to concerns that the AG’s Opinion construes the scope of the referential use limitation too narrowly. The author submits that the AUDI case, which is now to be decided by the Court of Justice of the European Union (CJEU), calls for attributing greater relevance to the catalogue of limitations and exceptions to exclusive trade mark rights, notably the referential use limitation. Moreover, a recalibration of the approach towards the 'honest practices' clause, which serves as a filter for all limitations and exceptions under EU trade mark law, is also needed in the context of non-original spare parts.