Decision on Cancellation No 14165 C page: 2 of 3
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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.
GROUNDS FOR THE DECISION
According to Article 58(1)(a) EUTMR, the rights of the proprietor of the European Union
trade mark will be revoked on application to the Office, if, within a continuous period of
five years, the trade mark has not been put to genuine use in the Union for the goods
or services for which it is registered, and there are no proper reasons for non-use.
In revocation proceedings based on the grounds of non-use, the burden of proof lies
with the EUTM proprietor as the applicant cannot be expected to prove a negative fact,
namely that the mark has not been used during a continuous period of five years.
Therefore, it is the EUTM proprietor who must prove genuine use within the European
Union or submit proper reasons for non-use.
In the present case the EUTM was registered on 21/01/2009. The revocation request
was submitted on 12/12/2016. Therefore, the EUTM had been registered for more than
five years at the date of the filing of the request.
On 17/02/2017, the Cancellation Division duly notified the EUTM proprietor of the
application for revocation and gave it a time limit of three months to submit evidence of
use of the EUTM for all the goods for which it is registered.
The EUTM proprietor did not submit any observations or evidence of use in reply to the
application for revocation within the time limit.
According to Article 19(1) EUTMDR, if the proprietor of the European Union trade mark
does not submit proof of genuine use of the contested mark within the time limit set by
the Office, the European Union trade mark will be revoked.
In the absence of any reply from the EUTM proprietor, there is neither any evidence
that the EUTM has been genuinely used in the European Union for any of the goods for
which it is registered nor any indications of proper reasons for non-use.
Pursuant to Article 62(1) EUTMR, the EUTM must be deemed not to have had, as from
the date of the application for revocation, the effects specified in the EUTMR, to the
extent that the proprietor’s rights have been revoked.
Consequently, the EUTM proprietor’s rights must be revoked in their entirety and
deemed not to have had any effects as from 12/12/2016.