Gift Mark, About Restriction On The Exercise Of A Trademark Right

In the recent judgment in Case C-361/22, Industria de Diseño Textil SA (Inditex) - owner of the trademark rights of ZARA - against Buongiorno Myalert SA, the Court addressed the scope of the restriction on the exercise of trademark rights arising from Article 6(1)(C) of Directive 2008/95/EC (Directive 2008). And although the provisions analysed by the Court have not been in force for years, they have a significant impact on the current state of the law as captured in Directive (EU) 2015/2436 (Directive 2015).

Background to the dispute

In 2010, Buongiorno, a company providing information services via the Internet and mobile phone networks, ran an advertising campaign for a subscription to a multimedia content service via SMS called 'Club Blinko'. As part of the campaign, users could enter a lottery in which one of the possible prizes to be won was a ZARA gift card worth EUR 1,000. On the organiser's website, when the user clicked on the banner enabling them to