eCHARGE | Decision 0015341

Fashion TV Brand Holdings C.V., Keizersgracht 62, 1015 CS Amsterdam, the
Netherlands (applicant)
a g a i n s t
Peek & Cloppenburg KG, Berliner Allee 2, 40212 Düsseldorf, Germany (EUTM
proprietor), represented by Bird & Bird LLP, Carl-Theodor-Str. 6, 40213 Düsseldorf,
Germany (professional representative).
On 01/12/2017 the Cancellation Division takes the following
1. The application for revocation is rejected as inadmissible.
2. The fee for the application for revocation will not be refunded.
Preliminary remark
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431,
subject to certain transitional provisions. All the references in this decision to the
EUTMR, EUTMDR and EUTMIR shall be understood as references to the Regulations
currently in force, except where expressly indicated otherwise.
The applicant filed an application for revocation of European Union trade mark
No 289 207 (figurative mark), hereinafter the EUTM. The
application is directed against all the goods covered by the EUTM.
The applicant invoked Article 58(1)(a) EUTMR.
In the present case, the contested EUTM had expired on 17/06/2016. The request for
revocation was filed on 22/07/2016. Therefore, the contested EUTM had already
expired when the request for revocation was filed.
On 11/11/2016, the Office suspended the proceedings until the end of the period
provided for in Article 53(3) EUTMR to renew the contested EUTM.
Decision on Cancellation No 13 321 C page: 2 of 2
On 30/08/2017, the Office informed the applicant that the application was inadmissible
because it was filed against a EUTM which no longer existed at the time of filling, since
it had expired. The applicant was given until 04/11/2017 to comment on the matter.
No comments were received by the Office.
An application for revocation based on lack of genuine use can only be filed against a
EUTM that is registered for at least five years at the time of the application. Therefore,
in the present case, as the contested EUTM is no longer registered the application for
revocation must be rejected as inadmissible.
The fee for the application for revocation is due for filing the application, regardless of
the outcome of the proceedings. Therefore, in cases of inadmissibility, it is not refunded
to the applicant. The only provision that allows for the refund of the cancellation fee is
Rule 39(1) EUTMIR (in the version in force at the time of filing the application for
revocation), applicable only where the application is deemed, as a result of late
payment, not to have been filed.
Therefore, in the present case, the fee for the application for revocation will not be
The Cancellation Division
Raphaël MICHE Cindy BAREL José Antonio
According to Article 67 EUTMR, any party adversely affected by this decision has a
right to appeal against this decision. According to Article 68 EUTMR, notice of appeal
must be filed in writing at the Office within two months of the date of notification of this
decision. It must be filed in the language of the proceedings in which the decision
subject to appeal was taken. Furthermore, a written statement of the grounds for
appeal must be filed within four months of the same date. The notice of appeal will be
deemed to have been filed only when the appeal fee of EUR 720 has been paid.

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