CANCELLATION No 35 741 C (REVOCATION)

Lidl Stiftung & Co. KG, Stiftsbergstraße 1, 74172 Neckarsulm, Germany (applicant), represented by Noerr Alicante IP, S.L., Avenida México 20, 03008 Alicante, Spain (professional representative)

a g a i n s t

Sweet Street Desserts, Inc.,722 Hiesters Lane, Reading, Pennsylvania 19601, United States of America (EUTM proprietor), represented by Kilburn & Strode LLP, Laapersveld 75, 1213 VB Hilversum, Netherlands (professional representative).

On 29/09/2020, the Cancellation Division takes the following

DECISION

1. The application for revocation is partially upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 10 223 are revoked as from 27/05/2019 for some of the contested goods and services, namely:

Class 42: Restaurant services.

3. The European Union trade mark remains registered for all the remaining goods, namely:

Class 30: Bakery goods, namely pies and cakes.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 10 223 ‘SWEET STREET DESSERTS’ (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 30: Bakery goods, namely pies and cakes.

Class 42: Restaurant services.

The applicant invoked Article 58(1)(a) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argued that the contested mark had not been used for a continuous period of five years in relation to all the goods and services for which it was registered and there had been no proper reasons for non-use.

The EUTM proprietor filed evidence of use of the contested EUTM (listed below). It argued that although part of the evidence showed use of the sign ‘SWEET STREET’, the word ‘DESSERT’ was descriptive in relation to the goods in Class 30, the dominant and distinctive element of the mark being ‘SWEET STREET’. Therefore, the evidence showed use of the contested mark in an acceptable variation. The word ‘pie’, for which the contested EUTM was registered, could have multiple meanings for foodstuffs, including both savoury and sweet pies.

In reply, the applicant reiterated that the contested mark had not been used for a continuous period of five years and there had been no proper reasons for non-use. Therefore, the contested mark should have been revoked as of 17/11/2003, which was when the five-year non-use grace period ended.

The EUTM proprietor replied that the applicant’s later request to revoke the contested mark at a date earlier than the date of the application for evocation was inappropriate.

In its final submissions, the applicant claimed that the majority of the documents featured the contested EUTM as the proprietor’s company name or included a sign which was not the mark as registered (such as ‘SS’ or ‘SWEET STREET EST. 1979’). Moreover, the use was not proven in relation to the relevant goods and services or it referred to an insignificant amount (which was a rather sporadic use and certainly not sufficient to acquire a commercial position in the relevant market). Also, most of the documents came from the sphere of the proprietor and were not supported by additional, objective and independent material, so their probative value was very low. Further, the evidence did not show use within the relevant time, at the relevant place and to a sufficient extent. Moreover, many of the documents were not in the language of the proceedings or they were undated/dated outside the relevant period, so they should have been rejected as inadmissible from the outset.

The applicant explained that it had a legitimate interest in the fixing of an earlier effective date of revocation since the proprietor had opposed the applicant’s EUTM application No 15 458 722 ‘SWEET ST.’ in opposition procedure B 2 760 570, and its UK trade mark application No 3 374 708 ‘SWEET ST.’ in opposition procedure No 417 058, based on an alleged likelihood of confusion with, among others, the contested EUTM. In support of this request, the applicant referred to the decision of the Cancellation Division of 08/09/2019 in revocation case No 11 498 C.

The proprietor replied to the applicant’s observations. Firstly, it affirmed that the evidence showed the sign in an acceptable variation. Moreover, the affidavit provided an explanation on how the sign was used with regard to the goods and services as well as the commercial strategy behind the sign and provided substantial global figures of sales in the European Union. The additional evidence (catalogues, promotional materials, articles, photographs) displayed goods, as well as goods-related services, which showed a strong presence in the market and high promotional activity. There was an immediately perceivable link between the secondary and primary evidence, since the products and product-related services being promoted were displayed on price lists (Exhibit 5) and produced and sold in purchase orders (Exhibit 6).

The witness statement filed clearly indicated the place and date where the photographs had been taken. Furthermore, the brochures clearly displayed the © year as well as the contact details for the European, UK & Ireland and Dutch offices on the final page. The proprietor therefore submitted that the applicant’s allegations regarding the time and place of use must be dismissed.

The proprietor pointed out that the numbers of the purchase orders filed as evidence of use were not consecutive, which allowed for the correct inference that these documents were just examples of sales. To that end, the claim made by the applicant that the annual turnover figures specified in the witness statement of the proprietor were not supported by the purchase orders and must be dismissed. It added that, when assessing the evidence as a whole, it must be considered that the materials submitted were sufficient to show that the EUTM proprietor had genuinely worked to maintain or create a commercial position in the relevant market and that there was sufficient information concerning the commercial volume, the duration, and the frequency of use in relation to goods in Class 30.

As regards the use of the contested sign in relation to services in Class 42, the proprietor claimed that ‘SWEET STREET DESERTS’ goods had been offered for sale in numerous restaurants, which, although they had not directly been provided by the proprietor, could be considered goods-related services.

Finally, it claimed that the applicant’s arguments were substantially based on an individual assessment of each item of evidence regarding all the relevant factors. Moreover, it pointed out that the proprietor was not under any obligation to translate the evidence of use, unless it was specifically requested to do so by the Office.

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.

Genuine use of a trade mark exists where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use requires actual use on the market of the registered goods and services and does not include token use for the sole purpose of preserving the rights conferred by the mark, nor use which is solely internal (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, in particular § 35-37, 43).

When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 38). However, the purpose of the provision requiring that the earlier mark must have been genuinely used ‘is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks’ (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 38).

According to Article 19(1) EUTMDR in conjunction with Article 10(3) EUTMDR, the indications and evidence of use must establish the place, time, extent and nature of use of the contested trade mark for the goods and/or services for which it is registered.

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 16/11/1998. The revocation request was filed on 27/05/2019. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request. The EUTM proprietor had to prove genuine use of the contested EUTMR during the five-year period preceding the date of the revocation request, that is, from 27/05/2014 to 26/05/2019 inclusive, for the contested goods and services listed in the section ‘Reasons’ above.

On 03/10/2019 the EUTM proprietor submitted evidence as proof of use.

As the EUTM proprietor requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Cancellation Division will describe the evidence only in the most general terms without divulging any such data.

The evidence to be taken into account is the following:

 a witness statement of the vice president and managing director (International) of Sweet Street Desserts, Inc., dated 03/10/2019. It includes approximate revenue figures for the sale of confectionery, chilled and frozen confections and desserts; biscuits, brownies, blondies, cakes, cheesecakes, chocolate confections, confectionary bars, cookies, cupcakes, fondants, gluten-free desserts, layer cakes, dessert bars, marshmallow bars and squares, molten cakes, pies (sweet), puddings, petit fours, sweets, tarts, tortes in the European Union in 2014-2018. The proprietor’s goods are available to distributors and wholesalers in the European Union, who then sell them to restaurants and caterers, inter alia. It further includes a list of distributors in the European Union.

The information contained in this document is supported by the following evidence:

Exhibits 1-4: brochures for the years 2016, 2017, 2018 and 2019, which display the signs and , and show pies, cakes, crumbles, cookies, brownies, cupcakes and sweet bars. All the goods are identified. In all cases, the final page of the brochure provides a copyright notice which verifies the date of publication. According to the witness statement, the brochures are distributed to customers in the European Union to provide them with a list of the available products. On the last page of all brochures are references to various sales offices in the European Union.

Exhibit 5: a selection of price lists from 2015, 2016, 2017, 2018 and 2019, allegedly used in conjunction with the brochures distributed to customers in the European Union. The lists reproduce the signs and , where prices are indicated in euros and weight in kilos. The lists are addressed to various distributors in the European Union, as specified in the headers of all lists. The goods are identified with codes which can be cross-referenced with those included in the brochures showing pictures of them.

Exhibit 6: a selection of purchase orders dated 2014-2019, which show orders from companies located in the European Union for the purchase of goods identified with codes, which can be cross-referenced with those shown in the brochures exhibited in Exhibits 1-4.

Exhibit 6A: a printout from the website Massari S.r.l., written in Italian and dated 03/10/2019, with results from the search ‘SWEET STREET’. All of them show pictures of cakes and cupcakes.

Exhibit 7: a photograph of an EUTM proprietor’s stand at SIAL Paris, 2018, which shows the sign . According to the witness statement, this is the world’s largest food innovation exhibition and was held at ‘Parc des Expositions de Paris-Nord Villepinte’ on 21-25 October 2018.

Exhibit 8: photographs of stands, magazines, food boxes/packaging showing the figurative signs and . According to the witness statement, they were taken at TUTTO food in Milan, an international food and beverage show held on 6-9 May 2019.

Exhibit 9: photographs of the proprietor’s stand showing the figurative signs ‘SWEET STREET est. 1979’. According to the witness statement, they were taken at Anuga, the world’s largest trade fair for food and beverages, in Cologne, Germany on 10-14 October 2015 and 7-11 October 2017, respectively.

The witness statement signed by the vice president and managing director (International) of Sweet Street Desserts, Inc., also includes tables with the following information:

Table 1: a list of trade shows attended by the proprietor in the UK & Ireland in 2018 and 2019.

Table 2: a list of exhibitions attended by the proprietor to promote its trade marks, namely Horesca-Horecavo, BBB Maastricht NL, Horeca Expo Gent, Horecava, Hanos Foodstore and the US Independence Day Celebrations 2019 in the Netherlands or Belgium in the period 2014-2019. It includes:

Exhibit 10: a screenshot from the Horesca website showing the entry for Sweet Street Desserts, Inc, written in Dutch.

Exhibit 11: a picture of the proprietor’s stand at the BBB Maastricht NL show.

Exhibit 12: a picture of the proprietor’s stand at the Horeca Expo Gent show.

Exhibit 13: a picture of the proprietor’s stand at the Horecava show.

Exhibit 14: a picture of the proprietor’s stand at the Hanos Foodstore.

Exhibit 15: a picture of the event ‘US Independence Day Celebrations 2019’.

Exhibit 16: an example of a distributor’s brochure, written in Dutch and French, which shows the proprietor’s product line (cupcakes, brownies, pies and cakes) being promoted. The goods are identified with the sign .

Exhibit 17: a promotional flyer dated October 2014 for www.edna.de, a production and distribution company based in Germany for, inter alia, frozen bakery products. It shows pictures of cakes and other bakery products, but none of them are identified under a specific sign.

Exhibit 18: a promotional flyer advertising the proprietor’s attendance at the Gastro Vision Roadshow in Hamburg, Germany from 13-17 March 2015, and a photograph taken at this event.

Exhibit 19: a photograph taken at the Gastro Vision Roadshow in Hamburg, Germany at which the proprietor’s company exhibited from 14-18 March 2014.

Exhibit 20: photographs taken at the Internorga International Trade Fair for the Hotel Industry in Hamburg, Germany at which the proprietor exhibited from 17-21 March 2017.

Exhibit 21: an extract in French dated October 2014 from the magazine Le Monde du Surgelé (allegedly dedicated to the frozen food industry), promoting the Sial Food Exhibition 2014 in Paris, which includes a reference to the participation of the proprietor and the image of a cake.

Exhibit 22: an extract in French from Le Monde du Surgelé dated January/February 2019. The extract references the Sial Food Exhibition 2018 in Paris, which includes a reference to the participation of the proprietor. A copy of a photograph from this exhibition showing the proprietor’s stand at position 3 F131 is attached.

Exhibit 23: an extract in French dated May 2019 from the magazine Le Monde du Surgelé promoting the proprietor’s products (brownies) under the sign .

Exhibit 24: a copy of a promotional leaflet from 2015 in German for the proprietor’s goods offered by Pier 7 Foods, a supplier of fresh and frozen foods to the hotel and catering industry.

Exhibits 25 and 26: promotional leaflets from 2014 and 2016 in German for the proprietor’s goods (cupcakes, cakes, cookies and brownies) under the sign offered by Pier 7 Foods.

Exhibit 27: a brochure from Nacho Kings Meixner International Food World, an importer and distributer of food products, showing images of cakes.

Preliminary remarks

The applicant argued that since the EUTM proprietor did not submit translations of some of the evidence of use, in particular, the purchase orders (Annex 6), the printout of the website from Massari S.r.l. (Annex 6A), the printout in Annex 10, the brochure of a distributor (Annex 16), the promotional flyers (Annexes 17 and 18), the articles in Annexes 21-23 and the leaflets of Pier 7 Foods (Annexes 24-26), this evidence should not be taken into consideration.

However, the EUTM proprietor is not under any obligation to translate the proof of use, unless it is specifically requested to do so by the Office (Article 10(6) EUTMDR, applicable by analogy to cancellation proceedings). Taking into account the nature of the documents which have not been translated and are considered relevant for the present proceedings, namely the purchase orders, the brochures, the promotional flyers and other leaflets, and their, at least partly, self-explanatory character, the Cancellation Division considers that there is no need to request a translation.

The applicant further argued that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use for the goods and services for which the EUTM is registered.

The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Cancellation Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

As far as the witness statement signed by the vice president and managing director (International) of Sweet Street Desserts, Inc. is concerned, Article 10(4) EUTMDR (applicable to cancellation proceedings by virtue of Article 19(2) EUTMDR) expressly mentions written statements referred to in Article 97(1)(f) EUTMR as admissible means of proof of use. Article 97(1)(f) EUTMR lists, as means of giving evidence, sworn or affirmed written statements or other statements that have a similar effect under the law of the State in which they were drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perceptions of a party involved in a dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all. The final outcome depends on the overall assessment of the evidence in the particular case. The probative value of such statements depends on whether or not they are supported by other types of evidence (labels, packaging, etc.) or evidence originating from independent sources.

In view of the foregoing, the remaining evidence must be assessed in order to see whether or not the contents of the declaration are supported by the other items of evidence.

Assessment of genuine use – factors

Time of use

The evidence must show genuine use of the European Union trade mark within the relevant period.

Although some documents are undated, such as the pictures of stands included in Exhibits 11-15, the rest of the evidence, in particular, the brochures, the price lists and the purchase orders are dated within the relevant period. Therefore, the evidence of use filed by the EUTM proprietor contains sufficient indications concerning the time of use.

Place of use

The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 18(1) EUTMR and Article 58(1)(a) EUTMR).

The price lists addressed at clients in several European countries, the purchase orders from clients located in different countries in the European Union as well as the evidence of participation in trade fairs in the Belgium, France, Ireland, the Netherlands and the UK show that the place of use is the European Union.

Extent of use

Concerning extent of use, it is settled case-law that account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (e.g. 08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35).

The Court has held that ‘[u]se of the mark need not … always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or service concerned on the corresponding market’ (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 39).

As mentioned above, the probative value of the affidavit depends on whether or not it is supported by other types of evidence or evidence originating from independent sources. The revenue figures provided in the affidavit are in part corroborated by the purchase orders filed by the EUTM proprietor (Exhibit 6). Indeed, as the proprietor explained, the numbers of the purchase orders filed are not consecutive and this allows for the correct inference that these documents are just examples of orders.

Furthermore, the samples of brochures and price lists demonstrate that the products have been offered for sale to numerous clients in the European Union, and the purchase orders corroborate the distribution of the goods in the European Union. The Court has stated that under certain circumstances, even circumstantial evidence such as catalogues featuring the trade mark, despite not providing direct information on the quantity of goods actually sold, can be sufficient by themselves to prove the extent of use in an overall assessment (judgments of 15/07/2015, T‑398/13, TVR ITALIA (fig.) / TVR, et al., EU:T:2015:503, § 57-58; 08/07/2010, T‑30/09, Peerstorm, EU:T:2010:298, § 42, et seq.). Indeed, the pictures, leaflets and in general, all the evidence related to the participation of the proprietor in trade fairs show that it has continuously invested in the promotion of its trade mark in many countries of the European Union throughout the relevant period.

Bearing in mind the type of goods and services and the sales figures provided in the affidavit, corroborated by the remaining documents submitted by the proprietor, the Cancellation Division considers that the evidence, taken as a whole, is therefore sufficient to prove the extent of use of the registered mark, and exceeds mere token use, at least in respect of some of the goods and services.

Consequently, the Cancellation Division finds that the documents filed provide sufficient information concerning the commercial volume, the duration and the frequency of use at least for some of the contested goods and services.

Nature of use

Nature of use requires, firstly, that the contested European Union trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers. Moreover, in the context of Article 10(3) EUTMDR, nature of use further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 18(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.

The purpose of Article 18(1)(a) EUTMR, which avoids imposing strict conformity between the form in which the trade mark is used and the form in which it was registered, is to allow its proprietor, when exploiting it commercially, to vary it in such a way that, without altering its distinctive character, enables it to be better adapted to the marketing and promotion requirements of the goods or services concerned (23/02/2006, T‑194/03, Bainbridge, EU:T:2006:65, § 50).

The images of the goods included in the brochures and the pictures of stands where the goods are promoted show that the mark is used to identify the commercial origin of these goods. Therefore, the sign is used as a trade mark.

The evidence shows that the mark has been used in a stylised form as , and . The figurative features as shown above, in particular, the stylisation of the verbal elements ‘SWEET STREET’, the brown background or the central, figurative element are decorative and do not alter the distinctive character of the contested trade mark. Further, the verbal element ‘Est. 1979’, included in a smaller size below or on the left-hand side of the element ‘SWEET STREET’ as shown above, or the word ‘DESSERTS’, refer to the characteristics (i.e. year of establishment) and nature of the products/services and they are non-distinctive. Therefore, although the use of the contested mark varies and in certain items of evidence takes a different form from that registered, this does not affect its distinctive character as the additional or omitted elements are descriptive or merely decorative, as mentioned above (29/09/2011, T‑415/09, Fishbone, EU:T:2011:550, § 63). It follows that use is shown of the contested EUTM in a form which does not alter its distinctive character.

Accordingly, the nature of use requirement has been fulfilled since use of the sign has been proven according to Article 18(1)(a) EUTMR.

Use in relation to the registered goods and services

Article 58(1)(a) EUTMR and Article 10(3) EUTMDR require that the EUTM proprietor proves genuine use for the contested goods and services for which the European Union trade mark is registered.

The contested EUTM is registered for the abovementioned goods and services in Classes 30 and 42.

An interpretation of the wording of the list of goods and services is required to determine the scope of protection of these goods and services. The term ‘namely’, used in the proprietor’s list of goods in Class 30 to show the relationship of individual goods to a broader category is exclusive and restricts the scope of protection only to the goods specifically listed.

The evidence, in particular the brochures, the price lists, the purchase orders and the pictures of promotional activities show the use of the contested mark in relation to, inter alia, cakes and pies.

However, in the whole set of evidence, there is no proof that the contested trade mark would ever be used in relation to the services in Class 42 for which it is registered. The entire set of evidence concentrates on goods in Class 30.

According to Article 58(2) EUTMR, where there are grounds for revocation in respect of only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods and services only.

The proprietor argued that although restaurant services have not been directly provided by the proprietor, they can be considered goods-related services as goods traded under the contested mark have been sold in restaurants. However, the Cancellation Division does not agree with the proprietor’s interpretation. Even though the specific goods in Class 30 might have been distributed or sold in restaurants, it does not prove the use of the mark in relation to restaurant services, which require the existence of an establishment at which meals are cooked and served to customers on the premises. Therefore, the proprietor’s claim is dismissed as unfounded.

Overall assessment

In order to examine, in a given case, whether use of the earlier mark is genuine, an overall assessment must be made taking account of all the relevant factors in the particular case. That assessment implies a certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under that trade mark may be compensated for by high intensity of use or a certain constancy regarding the time of use of that trade mark or vice versa (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 36).

An overall assessment of the evidence does allow the conclusion, without resorting to probabilities and presumptions, that the mark was genuinely used during the relevant period for part of the relevant goods and services (15/09/2011, T‑427/09, Centrotherm, EU:T:2011:480, § 43).

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the EUTM for the following goods and services, for which it must, therefore, be revoked:

Class 42: Restaurant services.

The EUTM proprietor has proven genuine use for the remaining contested goods; therefore, the application is not successful in this respect.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 27/05/2019.

The applicant requested an earlier date for the effects of the revocation, namely as from 17/11/2003, when the five-year non-use grace period ended. It did so in the observations in reply to the evidence of use submitted by the EUTM proprietor, where it also provided the reasoning for this request.

An earlier date, on which one of the grounds for revocation occurred, may be fixed at the request of one of the parties. In the present case, the applicant explained that it has a legitimate interest in this respect because the contested mark is invoked as a basis of an opposition filed against the applicant’s EUTM application No 15 458 722 ‘SWEET ST.’ in opposition procedure No B 2 760 570. To this effect, it must be stated that opposition proceedings in case No B 2 760 570 were suspended and will be resumed only when the decisions in the matter of cancellation of EUTMs No 10 223 (the contested mark) and No 11 982 816 are final. The opposition cannot succeed if it is based on trade marks that have been revoked and no longer exist at the time of taking the decision on the opposition. Therefore, the legal situation of the applicant does not change with different dates from which the marks are revoked. Consequently, in exercising its discretion in this regard, the Cancellation Division considers that it is not expedient in this case to grant the applicant’s request, since, as far as the reasons given by the applicant are concerned, the date from which the mark is revoked does not affect the situation.

The applicant further explained that it has a legitimate interest in fixing an earlier date for the effects of the revocation of the contested mark because the contested mark was also invoked as a basis of an opposition filed against the applicant’s UK trade mark application No 3 374 708 ‘SWEET ST.’ in opposition procedure No 417 058. However, the applicant has not demonstrated that the UK office applies different rules than those applied by the EUIPO as explained above. In these circumstances, it is not considered that, even in this case, the applicant proved a sufficient legal interest for fixing an earlier effective date of revocation. Therefore, the Cancellation Division does not find it appropriate to grant the applicant’s request as it has not been properly justified.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Cancellation Division

Frédérique SULPICE Ana MUÑIZ RODRÍGUEZ Carmen SÁNCHEZ PALOMARES

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 of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.