This is an interesting question - in particular as the second hand market is growing and growing. You might remember my recent post when I predicted an increase in trademark disputes around such seconds (see https://viewpoints.bakermckenzie.com/post/102gkd3/will-the-growing-second-hand-market-for-fashion-fuel-trademark-disputes). One of these disputes arose about genuine use (and/or lack thereof) by Ferrari of its well-known "Testarossa" brand - a trademark used for a car model marketed until 1996. Thereafter, Ferrari used the mark in dispute merely to identify spare parts and accessories for the cars previously marketed under the mark. The ECJ answered my above question with a clear "yes"; resale of goods by the trademark holder can constitute “genuine use,” even if the rights would have otherwise been exhausted as a result of the initial sale. The ECJ was not the ECJ if it had not left open the question when such use indeed does constitute genuine use. This is a question which the Higher Court in Düsseldorf will now have to deal with - and it remains to be seem what criteria the court will define that (can) establish use in accordance with the essential function of the trademark in question. In any event, the decision will not only be awaited by the automotive industry where models regularly are discontinued, but it will also be highly relevant for luxury brands - where relaunches of iconic "vintage" styles and trademarks go hand in hand with the introduction of second-hand goods as part of brand initiatives.
“The resale of a second-hand product bearing a trademark” does not, on its face, translate to “genuine use” of that mark. However, the judges held, in Ferrari’s favor, that if the trademark holder “actually uses the mark, in accordance with its essential function … when reselling second-hand goods, such use is capable of constituting ‘genuine use.’”