February 12 2018 Facts Primagaz, a company which sells gas in tanks bearing the trademark PRIMAGAZ, let a 1,200-litre gas tank to a customer based on an agreement that the gas tank could be used for Primagaz gas only. However, the customer allowed a third party to fill the tank with a different brand’s gas. Primagaz ordered the third party not to refill the Primagaz tank with non-Primagaz gas, claiming that this constituted trademark infringement. The third party did not comply with the request. Thus, Primagaz issued a writ requesting the court to order the third party to stop all infringements of the PRIMAGAZ mark, including refilling the 1,200-litre gas tank. First-instance court The third party defended itself by referring to the European Court of Justice (ECJ) in Viking Gas v Kosan Gas (C‑46/10) and Winters v Red Bull (C-119/10). Viking Gas In Viking Gas the ECJ interpreted Articles 5 and 7 of the EU Trademark Directive (89/104/EEC). It found that the holder of an exclusive licence for the use of composite gas bottles intended for reuse – whose shape is protected as a three-dimensional mark and to which the holder has affixed its own name and logo which […]

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