Turkish Law Blog
“De-Branding” as a form of Trademark Infringement: Mitsubishi v Duma Case
Trademark infringement cases are generally based on the use of a trademark; thus, the concept of the use is always focused. While both European Union Trademark Directive (hereinafter EUTM Directive) and Regulation (hereinafter EUTM Regulation) besides the Turkish Industrial Property Code bind the infringement of a trademark to the condition of the use of that trademark; the French Intellectual Property Code, on the other hand, exceptionally but expressly states that the removal of a trademark without the consent of its proprietor shall also constitute an infringement type.
In legal systems that require the use to constitute infringement like the EU and Turkish laws, infringement claims for complete removal of a trademark are not common. However, in July 2018, the Court of Justice of the European Union (hereinafter CJEU) decided on when not use becomes the use. In other words, the CJEU ruled on how the removal of a trademark may constitute infringement.
It is quite remarkable that Mitsubishi v Duma was one of the parallel import cases where the CJEU has always had a strict attitude against parallel imports from third countries to the EU. During the last 20 years, the CJEU prevented several strategies of parallel importers by many decisions. However, Mitsubishi v Duma may be the most controversial one of such decisions of the CJEU. In this regard, it seems the reasoning of the decision may cause arising out of new debates that may even go beyond the parallel importation.
This article will first briefly explain the exhaustion regime of the EU and the CJEU’s precedent about the parallel importation from third countries to the EU before the assessment of Mitsubishi v Duma decision. Because, it is not possible to correctly understand the ratio and the difference of Mitsubishi v Duma ruling without examining the CJEU’s (former) similar decisions on rebranding.
II. Rulings of the CJEU on De-branding
A. Exhaustion Regime of the European Union and Parallel Imports
According to the exhaustion of rights or the first sale doctrine, once products bearing a trademark are put on a particular market by or with the concept of the trademark's proprietor, the control of that proprietor over the further movements (commercialisation) of the products is exhausted. Art. 15 of the EUTM Directive, Art. 15 of the EUTM Regulation and Art. 152 of the Turkish Industrial Property Code regulate the exhaustion principle and its exceptions.
The exhaustion principle is formed as three basic models as national, regional and international exhaustion regimes. While the national exhaustion regime refers to that once a trademark proprietor puts the products on a specific country's market, the trademark rights of the proprietor are, in principle, exhausted within the borders of this country. On the contrary, if a country applies the international exhaustion regime, the trademark rights are exhausted upon putting the products on the market no matter where the market is in the world. On the other hand, borders of a region are regarded as a single whole border regarding the exhaustion principle under the regional exhaustion regime. The exhaustion occurs throughout the region, once wherever the products are put on the market within that region.
Parallel importation arises out when the genuine (original) goods that were first put in a foreign market by or with the consent of the trademark proprietor are imported without authorisation of the proprietor. The legality of parallel imports is strictly conditioned to the type of exhaustion regime. The national exhaustion doctrine seeks to prevent parallel imports whilst the international exhaustion principle makes parallel imports legal. On the other hand, regional exhaustion regimes permit parallel imports within countries belonged to a specific region but also entitle the trademark proprietor to block parallel imports from third countries.
In this regard, the regional exhaustion regime is applied in the EU, contrary to Turkish law which imposes international exhaustion principle. In other words, parallel imports from third countries to the EU constitute trademark infringement, unlike parallel imports between the EU countries. In Turkey, parallel imports are entirely legal. It is essential to highlight that the CJEU set the EU-wide exhaustion doctrine even before the first trademark directive, and then, the EU trademark directives and regulations, which also constitutes a source of Turkish trademark law, just codified principles established by the CJEU about the exhaustion.
Until today, various defences have been propounded by parallel importers, including GATT and TRIPS agreements, vertical agreements restricting competition by the use of trademark rights, abuse of dominant position by the trademark proprietor and abuse of rights. Nevertheless, the CJEU accepted only a few of such defences under extremely exceptional circumstances.
B. The CJEU’s Former Decisions on Rebranding
Before Mitsubishi v Duma, the CJEU has created relatively extensive precedent about changes in packagings and labels and trademarks in the course of parallel imports between the EU countries. It is because that Articles 15/2 of EUTM Directive and EUTM Regulation describe changes in the condition of goods as a typical example of legitimate reasons to oppose to the parallel imports.
In this regard, the CJEU has had to reason out on cases about the repackaging of pharmaceuticals because repackaging poses also the risk of influencing the condition of sensitive pharmaceuticals in addition to the assumption of influence on the guarantee and advertising functions. In Hoffman-La Roche v Centrafarm case, the CJEU established criteria to explain under which conditions the repackaging is legal. After the codification of the Community-wide (EU-wide) exhaustion principle by the first trademark directive, the CJEU continues to hold Hoffman-La Roche v Centrafarm ruling and, even clarified it further in the Bristol-Myers Squibb case. In this context, the repackaging of goods is permitted for parallel imports between the EU member states under the following cumulative conditions:
- The opposition of trademark proprietor objectively contributes to portion the EU market (necessity of repackaging) artificially;
- The repackaging shall not adversely affect the existing condition of goods;
- The manufacturer of goods and who repackaged the goods shall clearly be shown on the new package.
- The new package shall not harm the reputation of the trademark
- A notice shall be given to the trademark proprietor by the importer before the commercialisation of the repackaged goods.
The base of the Hoffman-La Roche v Centrafarm and Bristol-Myers Squibb formulas is the origin function (guarantee of origin), which is regarded as the specific subject-matter of trademark rights. It is significant for understanding the logic of Mitsubishi Duma ruling to emphasise the first and third criteria. The CJEU has never allowed to freely interfere with the package of products because the origin function also guarantees no unauthorised interference at the previous stages of marketing from the perspective of the CJEU.
After the stabilisation of repackaging rules, European trademark proprietors began to endeavour for inventing new strategies to prevent parallel importation between the EU member states. The first oppositions, against repackaging by importers, were followed by the use of similar but not the same trademarks in different EU countries. While objective requirements sometimes caused the use of softly differentiated trademarks, the differentiation was sometimes made to shape the consumer preferences artificially and to create de facto barriers against the parallel imports. The CJEU dealt with the oppositions of trademark proprietors against importers who rebranded products before importation in the Centrafarm v American Home Products and Pharmacia & Upjohn v Paranova cases.
In the first case, American Home Products registered “Serenid D” in the UK and “Seresta" in the Netherlands for the pharmaceuticals that were considered as identical products by Advocate General (hereinafter AG) Capotorti. Centrafarm imported products bearing “Serenid D” from the UK to the Netherlands but, reaffixed “Seresta” instead of “Serenid D” before the importation. According to Centrafarm, such a practice could not harm the origin function because the proprietor American Home Products was using both trademarks. Neither AG Capotorti nor the CJEU agrees with Centrafarm’s view. According to AG Capotorti’s, the use of differentiated trademarks in different member states should be regarded as lawful in principle. However, if the trademark proprietor tries to portion the market artificially, which means, in the eyes of AG Capotorti, not having an objective and sufficient justification for using different trademarks, the opposition to the repackaging should be regarded as unlawful. The CJEU also shared the same point of view that the use of differentiated trademarks shall be considered as lawful in principle unless it is formed as a mechanism for artificial partitioning the market. However, the CJEU indeed did not clarify what artificial partitioning is.
In Pharmacia & Upjohn v Paranova, almost the same question was placed before the CJEU again. However, trademark proprietor Pharmacia & Upjohn had an objective justification for registering differentiated trademarks. Contrary to AG Capotorti, AG Jacobs suggested that subjective intent of the proprietor should be taken into account and be enough to reject the proprietor’s opposition but must not be mandatory to be proven. Instead, the objective test of Bristol-Myers Squibb should be applied to rebranding cases as well, according to AG Jacobs. The CJEU also followed almost the same reasoning and underlined the necessity criterion. Nevertheless, the CJEU raised that rebranding seeking purely commercial advantages shall not be considered as the necessity.
The position of parallel imports with repackaging or rebranding (with another trademark of the proprietor) from third countries arises out as another question debatable in this section. The author of this article could not reach any judgement of the CJEU answering this question. Indeed, it is evident even in the absence of a CJEU’s judgement. First, parallel importation from third countries, itself and without repackaging or rebranding, is already unlawful. In addition, while the base of prohibiting repackaging in principle is the origin function of trademark rights as mentioned above, the logic to permit repackaging under Bristol-Myer Squibb principles is the free movement of goods throughout the EU. Parallel imports from third countries are also deprived of the aid of the free movement of goods principle.
After the background explained above, the main issue of this article will be examined under the next section: Shall it be considered as an infringement if a parallel importer entirely de-brands the proprietor’s trademark, reaffix its own trademark and then, import these goods from a third country to the EU?
III. Mitsubishi v Duma Case
A. The Facts, Questions, and Ruling
A dispute where the CJEU answered the question mentioned above recently was recently arisen out by Mitsubishi against Duma and GSI. Duma is a former official sub-dealer of Mitsubishi in Belgium. From 2009, Duma ad GSI started to acquire forklift trucks that had never been commercialised in the EU (EEA indeed) from a Mitsubishi group company outside the EU and placed forklift trucks under a customs warehousing procedure. Duma and CSI modified those trucks to adapt them to the EU standards. Additionally, they totally removed the Mitsubishi trademark, identification plates, and serial numbers and reaffixed their own trademarks. Finally, these goods were marketed within the EU.
Thereupon, Mitsubishi brought an infringement action against Duma and GSI; based on the origin, investment, and advertising functions of trademark and right to initial marketing within the EU. According to Mitsubishi, Duma and GSI tried to circumvent the EU-wide exhaustion principle. Besides, it asserted that forklifts were still recognisable by costumers even without the Mitsubishi sign.
On the contrary, Duma and GSI defended that they should have been regarded as manufacturers due to modifications they did. Thus, they should have the right to affix their own trademarks from the perspectives of Duma and GSI. Furthermore, they claimed that the exhaustion the proprietor’s rights do not involve products not bearing the proprietor’s trademark.
The difference of Mitsubishi v Duma from the previous repackaging and rebranding cases is that the registered sign of Mitsubishi was totally removed and it was not used.
In this context, the Belgian court asked the following questions:
- “Whether de-branding of goods which have never been placed on the EU market, to import these goods into the EU, would infringe the trademark rights?
- Would it make any change if the situation was rebranding with the distinctive sign of the parallel importer?
- Would it make any difference if the relevant average consumer could still identify the outward appearance of these goods?”
The CJEU first remembered the functions of the trademark by giving a specific emphasise to the function of guarantee and proprietor’s right to initial marketing. According to the CJEU’s precedent, “it serves in particular to guarantee that all the goods or services bearing it (the trademark) have been manufactured or supplied under the control of a single undertaking which is responsible for their quality, which it does in order to fulfil its essential role in the system of undistorted competition”. The Court paradoxically held that such removal of a trademark deprives the right to “control the initial marketing […] of goods bearing that mark (emphasis added)”.
Aside from the discrepancy in the sentence mentioned above, the Court even went further. In the eyes of the CJEU, the essential function of the trademark may be damaged regardless of the recognisability of products without the (removed) trademark. Nevertheless, the recognisability is likely to heighten the effects of damage.
Moreover, functions of investment and advertising were also underlined by the CJEU. According to the Court, such action deprives the possible opportunities of:
- Being associated with the (removed) trademark by consumers to gain a reputation (the function of advertising) and,
- Getting the economic value of goods by putting them on the EU market for the first time (function of investment).
However, the Court also highlighted that these functions may be harmed "where, as in the present case, the product in question is not still marketed under the trade mark of the proprietor on that market by him or with his consent”.
Consequently, the CJEU raised its judgement in favour of Mitsubishi and regarded de-branding (followed by rebranding) in a customs warehouse proceeding to import goods to the EU as trademark infringement.
B. The Opinion of Advocate General Sánchez-Bordona
In comparison with the Court, AG Sânchez-Bordona approached the dispute more analytically.
He first summarised the opinions of the German Government and the Commission. In contrast with the Court, the German Government stressed that the right to initial marketing of goods does not entitle the proprietor to bring an infringement action against putting the goods not bearing the trademark to the market for the first time. In other words, the trademark right does not protect the proprietor’s products independently from the trademark. Thus, Duma and GSI did not infringe Mitsubishi’s trademark rights, according to the German Government . On the contrary, the Commission alleged the infringement by highlighting the prohibition of international exhaustion within the EU.
AG Sánchez-Bordona anatomised whether “non-use” of a trademark may be an infringement by using several kinds of interpretation methods. According to him, both literal and systematic interpretations require the use of a trademark for the existing of an infringement. He underlined Duma’s examples about where the absence of a sign can be qualified as the use:
- Three-dimensional products registered as a trademark
- Colours registered as a trademark
According to AG Sánchez-Bordona’s purposive interpretation, the removal of a trademark may lead to confusion among customers, but it does not convert the non-use to the use. Thus, it does not fall within the scope of trademark law but, may be covered by unfair competition law.
AG Sánchez-Bordona also benefited from comparative and historical methods. He claimed that member states are competent to regulate the situation of non-use because the EU legislature abstained from regulating the non-use of a trademark. Different regulations of the UK, Germany, and France on the non-use issue are the indications of member states’ competence according to him.
Another relevant issue investigated by AG Sánchez-Bordona is the claim of abuse. He reminded two conditions that are required to detect the abuse in the EU law:
- It is understood, from objective circumstances, that the purpose of rules under consideration is not achieved by concrete practice;
- There must be an intention to gain an improper advantage by artificially created conditions.
Nevertheless, the conditions mentioned above were not presented in the given case in the eyes of AG Sánchez-Bordona He also observed that the former rulings of the CJEU about circumventing do not apply to this case. From his perspective, it is likely to direct importation, rather than parallel importation, after de-branding and rebranding, because the Mitsubishi trademark was not visible to consumers when the goods were put on the EU market.
Consequently, AG Sánchez-Bordona negatively answered questions of the Belgian court and suggested not to judicially extend the scope of trademark law due to the not regulating the non-use issue at the EU level or the lack of harmonisation of European unfair competition law.
IV. Assessment of the CJEU’s Ruling in Mitsubishi v Duma and Its Possible Implications on Turkish Law
First of all, the conclusion raised by the CJEU should not be regarded as surprising in the light of the Court’s previous judgements about parallel imports from third countries.
On the other hand, Mitsubishi v Duma decision can be criticised at many points. First, as AG Sánchez-Bordona stated, the EU trademark legislation expressly requires “the use” of the trademark as a condition of infringement. However, examples pointed out by AG Sánchez-Bordona do not appear completely appropriate. If he meant the removal of the logo that is also registered, there would be no difference between registered or unregistered three-dimensional trademarks as long as the consumer is likely to associate the product and the logo. Nevertheless, he was entirely reasonable about the requirement of "the use".
As it is understood from the repackaging cases, the CJEU has never positively approached changing packagings freely. It is because of the the assumption that repackaging generates, without any need to discuss its actual effects case by case, a risk of adverse effects on the specific subject matter of trademarks including functions of origin and advertising. Nevertheless, the function of origin was not discussed in terms of total de-branding or total rebranding. In other words, the function of the origin principle has enhanced through cases where signs of the proprietor and the importer were visible to consumers together. The Court developed, for the repackaging by European parallel importers, Bristol-Myers Squibb conditions that prevent confusion about the origin of goods. In this regard, it is arguable that the reasoning of Mitsubishi v Duma about the origin function does not fully conform to the CJEU’s previous jurisprudence.
About the attitude of the CJEU on the advertising functions of the trademarks, it is remarked that the Court regards the advertising function as protection of the reputation of trademarks “irrespective of the existence of a risk of confusion”. In this respect, it may seem consistent in itself that the Court did not consider the recognisability of forklift trucks as the decisive factor. Nevertheless, The CJEU grounded on the functions of advertising and investment in a broader way. According to the Court, de-branding with a view of importation to the EU deprives proprietor’s opportunities of realising the economic value of products by initial marketing of them and of making his trademark associated with these products. In the literature, the CJEU’s view is interpreted like that “the goodwill of a trademark […] can transpose from the trade mark into the goods that contain or once contained that trade mark”. Yet, how can goods that do not bear any sign of a specific trademark and are not recognisable by relevant consumers without that sign carry the goodwill of that trademark?
Mitsubishi v Duma has also revealed other questions which have not yet been perfectly answered. In the literature, it is stated that the Court limited itself by only giving decision about original defendant but not about forklift trucks. In this regard, whether the products may be regarded as infringing goods and be subject to infringement is questionable.
Another question arises out as to whether such rebranding following the de-branding of products that have already been put on the EU market also constitutes infringement? In other words, does de-branding cause infringement only in the course of (parallel) importation from third countries, or is it the same for parallel imports between member states of the EU? Even, does it make any difference for de-branding cases which are not related to the parallel importation? Those are quite essential questions because the answers would result in the interpretations mentioned below:
- If the CJEU considered the actions of Duma as the circumvention of the EU-wide exhaustion principle, it would be valid reasoning only for imports from third countries and does not directly affect imports between member states.
One of the CJEU’s reasons is circumvention, in addition to that the CJEU points out the phrase “where they (products) have never yet been marketed” as a part of its ruling in the conclusion. It should also be kept in the mind that the CJEU ruled on according to the circumstances of the case and reflected them in its ruling. However, it is arguable, as AG Sánchez-Bordona criticised, that such action may be considered as wholly out of the scope of exhaustion theory and as a direct importation instead of the circumvention of the prohibition of parallel importation from third countries.
- On the other side, if the CJEU deduced to infringement from the origin, advertising, and investment functions more than the circumvention theory, it would make no difference for other cases not relating to parallel importation. In other words, if the de-branding deprives such functions irrespectively of the right to initial marketing and the circumvention doctrine, it would again be infringement in the cases not including importation and cases about goods for which trademark rights had already exhausted. For example, if a local Belgian retailer -in order to (re)sale in Belgium- modified, de-brand and reaffixed his own sign to products that had already been marketed in Belgium by the proprietor, then he would again infringe the proprietor’s rights.
However, it seems that the CJEU does not asses the adverse effect on such functions separately from the right to initial marketing. Because, the Court expressly underlined that such functions are affected “where, as in the present case, the product in question is not still marketed under the trade mark of the proprietor on that market by him or with his consent”.
It is significant, to understand the logic of Mitsubishi v Duma, that the Court also highlighted the economic value which is expected by the proprietor and which would be realised by first marketing within the EU. Indeed, it is also the answer of question mentioned above: "How can goods that do not bear any sign of a specific trademark and are not recognisable by relevant consumers without that sign carry the goodwill of that trademark?” It seems the CJEU has extended the trademark protection even to potential goodwill. However, it may be far-reaching for trademark law and may even become the protection of speculative goodwill unless conditions of Mitsubishi v Duma ruling are much specified.
Consequently, the CJEU has unveiled imperfectly-answered-questions and uncertainties to some degree. For this reason, it appears that the CJEU will most probably face a similar case or cases in the near future.
Possible implications of Mitsubishi v Duma on Turkish trademark law is also another blurred area in this context. The author of this article could not find any infringement dispute relating to de-branding before the Turkish Court of Cassation. Nevertheless, the Court of Cassation decided on a relabelling in 2018. According to the Court, relabelling following the elimination of original labels (de-labelling) has not been regarded as infringement because:
- It was done to generate price advantage by preventing the detection of the distributor from whom the goods had been purchased and,
- It was done without any adverse effect on the appearance and reputation of products.
In this respect, the Court of Cassation ruled in a parallel line with the CJEU’s view on the same topic. However, Turkey applies international exhaustion regime. Thus, if the first interpretation of Mitsubishi v Duma mentioned just above (i.e., regarding de-branding as the circumvention of the exhaustion rules under specific circumstances) was accepted, it would have no significant effect on Turkish trademark law. In that case, Mitsubishi v Duma ruling might exceptionally apply in Turkish law, where a third person de-brands and commercialises goods that have never been marketed anywhere on the world by or with the consent of trademark proprietor.
However, if the second interpretation was preferred (i.e., considering de-branding as infringement irrespective of parallel importation and the right to initial marketing), it might have an essential influence on the Turkish Court of Cassation’s precedent.
In the final analysis, Mitsubishi v Duma ruling is in need of being explained in more detail by the CJEU in its further decisions. It prima facie seems, according to the author of this article, the CJEU is likely to limit Mitsubishi v Duma ruling to the cases related to (parallel) importation from third countries. Thus, it may probably not have appreciable effects on Turkish trademark literature and precedent.
Mitsubishi v Duma shows that the CJEU still maintains the strict enforcement of the EU-wide exhaustion regime. Beyond sustaining the CJEU’s view about parallel imports from third countries, Mitsubishi v Duma has the potential to expand horizons of trademark law. In particular, if the CJEU expressly assesses such de-branding as an infringement independently from the right to initial marketing within the EU in its further decisions, the functions of advertisement and investment will be reshaped and unusually widened. However, the exact current outcomes of Mitsubishi v Duma are even criticisable, especially by the reasoning of AG Sánchez-Bordona.
On the other side, such cases relating changes in packages or trademarks are not frequently brought before Turkish courts. Despite of the international exhaustion regime applied in Turkey, it is observed that the Turkish Court of Cassation has recently given a decision about relabelling in the same line with the CJEU.
It seems the CJEU is likely to limit its ruling to (parallel) importation cases or where the proprietor has not yet exhausted its rights. In this context, it does not seem that Mitsubishi v Duma ruling will have significant effects on Turkish trademark law.
 Directive (EU) 2015/243 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade mark  OJ L336/1, Art. 10.
 Regulations (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark  OJ L154/1, Art. 9.
 6769 sayılı Sınai Mülkiyet Kanunu, RG. 10.01.2017 29944, Art. 7.
 Code de la propriété intellectuelle Art. L713-2(b), <https://wipolex.wipo.int/en/legislation/details/19143>, 01.10.2019.
 Case C-129/17 Mitsubishi Shoji Kaisha Ltd, Mitsubishi Caterpillar Forklift Europe BV v Duma Forklifts NV, G.S. International BVBA  EU:C:2018:594.
 The term "first sale doctrine" is mostly used in US literature. See for the first cases on the first sale doctrine in the US law: Yiğit Türker Çoban, “The EU-Wide Exhaustion of Trademark Rights in Relation to Parallel Imports From Third Countries”, Banka ve Finans Hukuku Dergisi, Volume 7, Issue 28, 2018, Legal Yayıncılık, p. 879.
 Idem., p. 880.
 See Idem., pp. 884 - 887.
 Idem., p. 906 ff.
 Case 102/77 Hoffmann-La Roche & Co. AG v Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse mbH  ECR 1139 para. 14.
 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks  OJ L40/1, Art. 7.
 Joined Cases C–427; 429 and 436/93 Bristol-Myers Squibb v Paranova A/S; Boehringer Sohn, Boehringer Ingelheim KG and Boehringer Ingelheim A/S v Paranova A/S; and Bayer Aktiengesellschaft and Bayer Danmark A/S v Paranova A/S  ECR I–3457 para. 79; see Lazaros G. Grigoriadis, Trade Marks and Free Trade A Global Analysis, 2014, Springer, paras. 342 ff.; Çoban (n. 6), pp. 895 - 897.
 Case 3/78 Centrafarm BV v American Home Products Corporation  ECR 1823.
 Case C-379/97 Pharmacia & Upjohn SA v Paranova A/S  ECR I–6927.
 See Case 3/78 (n 14), Opinion of AG Capotorti, p. 1845.
 Case 3/78 (n. 14) , pp. 20 - 22.
 Case C-379/97 (n. 15), Opinion of AG Jacobs, paras. 42, 45.
 Idem., paras. 37 - 39.
 Case 379/97 (n. 15), para. 44.
 Çoban (n. 6), p. 932.
 Case C-129/17 (n. 5), paras. 13 - 16.
 Case C-129/17 (n. 5), Opinion of AG Sánchez-Bordona, para. 29.
 Case C-129/17 (n. 5), para. 18.
 Case C-129/17 (n. 5), Opinion of AG Sánchez-Bordona, para. 33.
 Case C-129/17 (n. 5), para. 41; Also, see Case C-129/17 (n. 5), Opinion of AG Sánchez-Bordona para. 48.
 Case C-129/17 (n. 5), para. 21; Çoban (n. 6), p. 933.
 Case C-129/17 (n. 5), para. 21.
 Idem, 42 - 43.
 Idem, para. 45.
 Idem, para. 46.
 Case C-129/17 (n. 5), Opinion of AG Sánchez-Bordona, para. 34 - 35.
 Idem, para. 36.
 Idem, paras. 50 ff.
 Idem, para. 53.
 Idem, paras. 59, 71.
 Idem, paras. 62 - 67.
 Idem, para. 77; also see for other current and feasible application of the abuse of rights theory in the EU trademark law: Çoban (n. 6), paras. 924 ff.
 Case C-129/17 (n. 5), Opinion of AG Sánchez-Bordona, paras. 80 - 81.
 Idem, paras. 91, 96.
Grigoriadis (n. 13), p. 165.
 Idem, pp. 165 - 166.
 Willem Leppink, Arnoud Martens & Martijn Poulus, “How not using a trade mark becomes use of a trade mark”, Journal of Intellectual Property Law & Practice, Volume 13, Issue 12, 2018, Oxford University Press, p. 927
 Idem, p. 927.
 Case C-129/17 (n. 5), paras. 47, 53.
 Case C-129/17 (n. 5), Opinion of AG Sánchez-Bordona, para. 81.
 Case C-129/17 (n. 5), para. 46.
 Yargıtay 11. HD (11th Civil Chamber of the Court of Cassation), 10.07.2018, 2016/11969 E. 2018/5029 K.; also, see Uğur Çolak, Türk Marka Hukuku, 2018, 4. Baskı, On Iki Levha Yayıncılık, Istanbul, p. 625.
 See Grigoriadis (n. 13), pp. 376 - 379.
 See Annette Kur, “Trademark Functions in European Union Law - Also Containing a Comment on CJEU case C-129/17, Mitsubishi v. Duma”, Max Planck Institute for Innovation and Competition Research Paper Series No. 19-06, 2019, p.21, < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3425839## >, 12.11.2019.