The trademark holder has an exclusive right to use his trademark sign. However, there are a number of limitations and exceptions.
Even in the event of similarity with his trademark, a trademark holder may not object to the use by a third party of certain signs in the course of trade. As such, a third party can in principle always use:
- the name and address;
- indications relating to the type, quality, quantity, destination, value, geographical origin, time of production of the product or provision of the service, or other characteristics of the products or services;
- the trademark of a third party where it is the only way to indicate the purpose of a product or service, in particular as an accessory or spare part. For example, it is accepted that an ink cartridge manufacturer may use the protected printer trademark to indicate that its cartridges are compatible with these printers.
However, the third party who used the sign must always act in good faith towards the holder of the trademark and respect honest practices in industrial or commercial matters. They may not use the trademark more than is necessary, nor give the impression of a commercial relationship with the trademark holder, nor try to take unfair advantage of the reputation of the trademark.
Earlier local use of a sign
The trademark holder may not oppose the use of a sign which, before the registration of the trademark, was already in use (for example, the trademark equals the trade name used locally prior to the registration of the trademark). Nor will the earlier user be able to extend this use territorially since the exclusive trademark right on a sign belongs to the person who registers it first.
Once the trademark holder has given permission to place goods under his trademark on the market, he exhausted his trademark right on the copies for which the authorisation is valid. He will therefore no longer have the right to control the subsequent marketing of the products, nor to prohibit parallel imports or exports of this product.
The exhaustion of trademark rights does not apply worldwide, but only to the European Union as a whole. The trademark holder may therefore not object, for example, to the import into Belgium of a copy of the product bearing the trademark sold with his authorisation in France. Exhaustion does not apply to goods that will be marketed beyond the borders of the European Union (for example, imports from India to Germany or the export of products that are available on the Belgian market to the United States). For products placed on the market outside the European Union, the trademark holder can henceforth oppose to the import or the resale in the EU.