CANCELLATION No 13 948 C (REVOCATION)

Dermavita Company Ltd, Corniche Mazraa, General Street, Al Jichy Building (Lebanon Gulf Bank) – 4th Floor, Beirut, Lebanon (applicant), represented by Krasimira Kadieva, 28 Hristo Botev Boulevard, floor 6 app. 10, 1000 Sofia, Bulgaria (professional representative)

a g a i n s t

Allergan Holdings France SAS, 12, Place de la Defense, 92400 Courbevoie, France (EUTM proprietor), represented by Carpmaels & Ransford LLP, One Southampton Row, London, City of London, WC1B 5HA, United Kingdom (professional representative).

On 04/04/2019, the Cancellation Division takes the following

DECISION

1. The application for revocation is upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 2 196 822 are revoked in their entirety as from 25/10/2016.

3. The EUTM proprietor bears the costs, fixed at EUR 1 080.

REASONS

On 25/10/2016, the applicant filed a request for revocation of European Union trade mark registration No 2 196 822 JUVEDERM (word mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 10: Medical and surgical apparatus and instruments, dermal implants, biocompatible substances for medical purposes for reducing wrinkles, artificial skin for surgical purposes, prostheses.

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

SUMMARY OF THE PARTIES’ ARGUMENTS AND EVIDENCE

The EUTM proprietor responded to the revocation action on 18/04/2017, 08/06/2017 and 15/06/2017 and commented that the present revocation request forms part of a wider trade mark dispute. It referred to parallel cancellation proceedings C 12 772 and to the documents filed therein to prove use in the respective case (which it identified for ease of reference and will be listed in the next section in the decision exhibits CC1-CC16.9) and filed CE certificates concerning its own products consisting of a combined offering of the pharmaceutical product (hyaluronic acid gel), prefilled syringes, and needles (evidence CC2). In particular it mentioned that the applicant clearly stated in that case that the proprietor used its JUVEDERM mark for goods in Class 10 (medical devices) although the mark was actually registered for goods in Class 5. In spite of its belief that the proprietor had proved use of its mark in Class 10, the cancellation applicant proceeded to file the present revocation request which, in the proprietor’s believe is an abuse of process and an act of bad faith. Further, it states that although it is clear that its goods are principally Class 5 products, Class 10 protection is also appropriate. It further requested either that the Office (i) calls upon the cancellation applicant to withdraw the present cancellation action or (ii) confirms that this cancellation action no longer has any effect.

The EUTM proprietor also referred to Decision No. RG: 17/53887 of 02/06/2017 of the Tribunal de Grande Instance de Paris granting the proprietor a preliminary injunction against the applicant preventing the latter from using the sign JUVEDERM in France on the basis that such use would infringe the registered proprietor’s EU and French registrations of JUVEDERM and would amount to unfair competition. The French Court considered that the goods under the proprietor’s mark are ‘pharmaceutical products administered by injection and devices falling within Class 10 covering apparatus and medical devices, dermal implants, biocompatible products for medical use for reducing wrinkles, artificial skin for surgical use, prosthesis’. It further mentioned some other disputes it has with the applicant in France, Turkey, Saudi Arabia, Russia or Moldova.

The applicant replied on 18/09/2017 and 03/10/2017. Commenting on the first set of evidence filed by the proprietor on 18/04/2017 (evidence CC2), it states the following: it does not relate to the EUTM proprietor but to other companies (also called ALLERGAN), it does not relate to the contested mark but rather third party trade marks (Juvéderm Volite, Volume etc) which are actually owned by Allergan INC, it cannot prove actual use of the contested mark for the contested goods. It claimed that the evidence submitted by the proprietor was previously filed in parallel proceedings to prove use of the mark for goods in Class 5.

The applicant sent a French official extract named Complete Official Report of 25/12/2016 confirming that the EUTM proprietor has zero turnover for the years 2012-2015, a copy of a trade mark assignment of some JUVEDERM trade marks (EUTMs) dated in 2017 and another document showing the registration of a licence for the contested mark on 23/05/2017, granted to Allergan France SAS.

In its submission of 03/10/2017 the applicant claimed that the Decision No. RG: 17/53887 of 02/06/2017 of the Tribunal de Grande Instance de Paris is not final being appealed by the parties involved and it is not relevant for the present proceedings. Likewise the rest of the decisions in other jurisdictions are not final either.

On 24/10/2017 the EUTM proprietor submitted evidence as proof of use consisting of the witness statement of Catherine Curutchet dated 02/05/2016, which sets out the registered proprietor’s proof of use of the mark JUVEDERM on the registered goods and the attached annexes:

CC 1 Declaration of Conformity signed on behalf of Allergan to declare that the products listed in the Declaration are manufactured in conformity with the ISO 13485:2003/EN ISO 13485:2012 standard, the dispositions of the Annex II (Full Quality Assurance System) of the 93/42/EEC Directive (14/06/1993).

CC 2 Copies of the European Conformity certificates for JUVEDERM products.

CC 3 A copy of an R&D report about the Pringy site. The report sets out the company's R&D priorities in relation to the JUVÉDERM® products, and states that around 28 million syringes were produced at the site between 2000 and the date of the report.

CC 4 A schedule of the marks Allergan owns – namely more than 220 trade mark registrations of and pending applications worldwide for the JUVEDERM® trade mark and marks containing JUVÉDERM. The EUTM proprietor provides also a table with all its trade marks in the EU (12 trade marks of which 10 are EUTMs).

CC 5 Evidence of the successful outcomes in oppositions against UK and EU similar trade mark applications.

CC 6 A schedule of the JUVÉDERM® domain names and the dates on which they were registered.

CC 7 Selections of photographs of JUVÉDERM® packaging.

CC 8 A document setting out the way in which JUVÉDERM® packaging has evolved from 2008 to 2015, boxes and carrier bags bearing the JUVÉDERM® trade mark.

CC 9 Documents in English, French and Dutch giving details of a selection of external training courses featuring JUVÉDERM in the UK, France and Benelux.

CC 10 A pricelist dated 2014 from one of the EUTM proprietor’s authorised accounts in the UK. The term JUVÉDERM is listed under the category ‘Fillers’ and is accompanied by other denominations such as Hydrate, Ultra, Voluma, Volbella, Ultra smile or Volift with Lidocaine.

CC 11 Selection of invoices from 2015, in various languages, from different companies such as Allergan S.A.U, Allergan Services International ltd, Allergan SP.Zoo, Alergan BV, for the sale of JUVEDERM® products to authorised users in 25 EU member states: Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom. The mark appears as JUVÉDERM accompanied with other terms such as Ultra, Volbella, Voluma with Lidocaine, Volift with Lidocaine, Hydrate. The prices per unit vary from under EUR 100 to more than EUR 360. The amount is high, and some invoices amount to more than EUR 100.000 for JUVÉDERM products.

CC 12 -Selection of marketing material for professionals and general public concerning JUVÉDERM products in several Member States of the European Union from April 2011 to March 2016 for different member states: UK, Benelux, Bulgaria, Italy, France, Slovenia, Slovakia and Croatia, Spain, Portugal, Greece, Austria, Germany, Sweden, Denmark. The evidence is structured by targeted public (professionals or general public) and territory (EU and by Member States). It contains brochures for Juvéderm, , products accompanied by other denominations such as VYCROSS®, VOLUMA®, VOLIFT®, VOLBELLA®, ULTRA, ULTRA SMILE, screenshots of interactive promotional material of the JUVÉDERM® product family to general consumers, photographs of Allergan's exhibits at the Aesthetic & Anti-Aging Medicine World Congress held in Monte-Carlo, Monaco in March 2012, April 2014, March 2015 (the names JUVÉDERM® and JUVÉDERM® VOLBELLA® appear), articles of various magazines and advertisement material (for UK for example in Woman magazine of February 2015 about JUVÉDERM®, Body Language - The UK & International Journal of Medical Aesthetics and Anti-Ageing of March 2015 about JUVÉDERM® VOLIFT™, Instyle – April 2015 - JUVÉDERM® dermal fillers, Marie Claire 2015 (monthly circulation 198 420), The Times [Raconteur] (with a monthly circulation of 389 409) etc).

-A montage of Allergan's PR-generated media coverage in the European Union during the year 2012 published in a number of the most widely spoken languages of the European Union, namely, English, French, German, Spanish and Italian and information about the total circulation figures for PR-generated coverage in the year 2012 (571 million +).

-A copy of Allergan's internal PR & Communication report on Media Highlights to date (as of 07/09/2012).

CC 13 A copy of the homepage at www.juvederm.eu.

CC 14 Screenshots dated between 2011 and 2016, of Allergan’s JUVÉDERM product websites at www.juvederm.com and www.juvederm.eu from the Internet Wayback Machine.

CC 15 A selection of reviews, reports and endorsements by third parties of the JUVÉDERM® brand (e.g. in Aesthetic Medicine magazine in April 2015 (monthly circulation 15 000 which publicises the introduction of a new product to the JUVÉDERM® family of dermal fillers - JUVÉDERM® VOLIFT™). The section ‘best of the best’ from Harper's Bazaar magazine (monthly circulation 106 089) feature on anti-ageing products mentions JUVÉDERM® dermal fillers. Furthermore, attached there are some pages from a report prepared by Cello Health Insight for Allergan. The report provides details of use of the JUVÉDERM® brand in the EU and the result is that JUVÉDERM® products perform better than competing products on every factor (e.g. overall satisfaction, value for money, patient satisfaction).

On 30/05/2018, the EUTM proprietor filed a copy of decision of the Tribunal de Grande Instance de Paris dated 25/05/2018 in case 17/10284 involving amongst others the parties in the present proceedings (claimant being the EUTM proprietor and defendant being the applicant) and a translation into English of the respective document. The decision relates to the registered proprietor’s infringement action against the applicant based on its EU and French registration of JUVÉDERM including the contested mark. The proprietor claims that in this action the registered proprietor seeks, amongst other things, a pan-EU injunction to prevent Dermavita from using the mark JUVÉDERM. It claims that ‘the decision is highly relevant to the present revocation and that the court rejected Dermavita’s application for a stay on a number of counts, notably because it finds Dermavita’s revocation action against Allergan’s French registration in Class 10 to be meritless’.

The applicant considers, in its reply of 31/07/2018, that the evidence sent by the proprietor does not prove the use of the mark for the registered goods and submits a detailed assessment of every registered good comparing it with the goods for which the mark appears to be used. It further reiterated its arguments and claimed that those documents that are not in the language of the proceedings, i.e. English, should be disregarded. The following documents were attached to the applicant’s submissions:

1. Council Directive 93/42/EEC of 14/06/1993 as amended by Directive 2007/47/EC of the European Parliament and of the Council of 05/09/2007 relating to medical devices;

2. EC certificate - EC Design examination (of the product) according to Annex II, section 4 and EC certificate of the complete quality assurance system according to DIRECTIVE 93/42/EEC, issued by the Notified body (LNE EC 0459) - Mandatory procedure to be followed by the Manufacturer before placing on the market according to Directive 93/42/EEC for medical devices;

3. EC declaration of conformity, issued by the manufacturer Allergan declared under its own responsibility - according to the mandatory procedure to be followed by the manufacturer before placing on the market of its medical devices according to Directive 93/42/EEC;

4. ANSM (French National Agency for Medicines and Health Products Safety) Report to Parliament - Review of the rules, applicable to the safety of medical devices and proposals for improvement;

5. ANSM Report for Injectable filling products;

6. Allergan's request for prior authorization of advertising materials to ANSM (for medical devices ‘injectable filling products’). With the provided document Allergan requests for prior authorization of advertising materials to ANSM for ‘injectable filling products’';

7. SOF.CPRE (French Society of Reconstructive and Aesthetic Plastic Surgery) document about ‘Injectable filling products’;

8. EC Certificates as example for Medical and Surgical Instruments and Apparatus;

9. EC Certificates as example for syringes and needles;

10. EC Certificates as example for Facial Implant;

11. EC Certificates as example for other types of implants;

12. Explanations about different types of facial implants in cosmetic surgery;

13. Example for Body Implants;

14. EC Certificates as example for Artificial skin;

15. EC Certificates as example for Prostheses.

16. Correspondence with National Agencies for drugs/Ministries of Health in different Member States (France, Cyprus, Croatia, Denmark, Luxembourg, the Netherlands, Poland and Sweden) to find out if the JUVÉDERM products are drug/pharmaceutical products or medical devices and that the answer was that they are medical devices.

17. Document titled Report/File 6 ‘JUVÉDERM filler is not implants’ and correspondence with different medical professionals from different clinics in various Member States answering that JUVÉDERM is a dermal filler and not an implant.

18 Legal consultations for the interpretation of Judgments No. RG: 17/53887 and ‘RG: 17/10284 of 02/06/2017 and of 25/05/2018 respectively of the Tribunal de Grande Instance de Paris.

In its last submissions the EUTM proprietor considers that the applicant’s arguments are based on a false premise that the description of a product for regulatory purposes should be reflected in the wording of a trade mark registration, which of course is not and that regulatory classification and Nice classification are entirely separate regimes.

It further stated that the United States Food and Drug Administration (FDA) states that ‘Dermal fillers, also known as injectable implants, soft tissue fillers, or wrinkle fillers are medical device implants approved […] for use in helping to create a smoother and/or fuller appearance in the face’, that the cancellation applicant admitted in its previous observations that ‘the JUVÉDERM trademark has been used for production of injectable filling products, which are medical devices for the treatment of cutaneous depressions and for the restoration of volumes’ (p.3), and declared that ‘we do not doubt that the EUTM trademark has been used in class 10’ (p. 13).

On 12/03/2019, after the closure of the adversarial part, the applicant sent additional documents consisting of: a decision issued by the EUIPO’s Cancellation Division in case 12 664 (decision of 31/07/2018, currently under appeal before the EUIPO’s Board of Appeal) in which the EUTM proprietor’s rights concerning the EUTM No 6 295 638 JUVÉDERM ULTRA were partly revoked, namely for the goods in Class 10 and a decision issued on 28/02/2019 by the Board of Appeal of Intellectual Property of Norway which decided the partial revocation of the proprietor’s rights in respect to the JUVÉDERM mark No 241 048 for the goods Class 10 (namely for dermal implants, including visco-supplemental medical substances use, intended for filling wrinkles or volume increases) on the reasons of non-use. In the applicant’s opinion the Norwegian Office’s decision confirms the decision of the EUIPO’s Cancellation Division in the case 12 664 (considering the products under JUVÉDERM mark as being Class 5 products).

General remarks on the evidence

1. The applicant argues amongst other things that the EUTM proprietor did not submit translations of some of the evidence of use and that, therefore, 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 (according to Rule 22(6) Regulation (EC) No 2868/95 in the version in force at the time of filing the application for revocation, 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 website printouts, invoices, pictures from different exhibitions and their self-explanatory character, the Cancellation Division considers that there is no need to request a translation in the present case. In any event the evidence contains sufficient material in the language of the proceedings.

2) After carefully checking the last submissions of the applicant including the decision of the Norwegian Board of Appeal, the Cancellation Division does not consider it necessary to reopen the present proceedings and allow for an additional round of observations, as this evidence cannot change the outcome in the present proceedings for the reasons explicitly mentioned below in the section Nature of use of the mark (use for the goods for which the trade mark was registered).

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 Rule 40(5) in conjunction with Rule 22(3) of the Regulation (EC) No 2868/95 in the version in force at the time of filing the application for revocation (and applicable to the present proceedings), the indications and evidence for the furnishing of proof of use must consist of indications concerning the place, time, extent and nature of use of the contested trade mark for the goods and 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 25/06/2002. The revocation request was filed on 25/10/2016. 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 EUTM during the five-year period preceding the date of the revocation request, that is, from 25/10/2011 to 24/10/2016 inclusive, for the contested goods listed in the section ‘Reasons’ above.

Assessment of genuine use – factors

As already mentioned above, the indications and evidence required in order to provide proof of use must consist of indications concerning the place, time, extent and nature of use of the trade mark for the relevant goods and/or services.

These requirements for proof of use are cumulative (judgment of 05/10/2010, T-92/09, STRATEGI, EU:T:2010:424, § 43). This means that the EUTM proprietor is obliged not only to indicate but also to prove each of these requirements. However, the sufficiency of the indication and proof as to the place, time, extent and nature of use has to be considered in view of the entirety of the evidence submitted. A separate assessment of the various relevant factors, each considered in isolation, is not suitable (judgment of 17/02/2011, T-324/09, Friboi, EU:T:2011:47, § 31).

In respect of the time and the place of use, the evidence must show that the contested EUTM has been genuinely used in the relevant period (i.e. from 25/10/2011 to 24/10/2016 inclusive) and in the relevant territory (EU).

As regards the nature of use, in the context of Rule 22(3) Commission Regulation (EC) No 2868/95 (in the version in force at the time of filing the application for revocation), the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, evidence of the use of the mark as registered and evidence of its use for the goods for which it is registered.

Finally, concerning the 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). Furthermore, 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). The assessment of genuine use entails therefore a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use. The evidence cannot be assessed in absolute terms but must be assessed in relation to other relevant factors. In this respect, the evidence should be viewed in relation to the nature of the goods and services and the structure of the relevant market (30/04/2008, T‑131/06, Sonia Sonia Rykiel, EU:T:2008:135, § 53).

In the present case, in order to show the genuine use of the contested mark, the EUTM proprietor submitted the above described evidence. Nevertheless, when considered in detail and then viewed as a whole, it does not allow the Cancellation Division to reach a conclusion that the mark was genuinely used in relation to the contested registered goods.

Nature of use: use in relation to the registered goods

Article 58(1)(a) EUTMR and Rule 22(3) Commission Regulation (EC) No 2868/95 (in the version in force at the time of filing the application for revocation) require that the EUTM proprietor proves genuine use for the contested goods for which the European Union trade mark is registered, namely the goods in Class 10: medical and surgical apparatus and instruments, dermal implants, biocompatible substances for medical purposes for reducing wrinkles, artificial skin for surgical purposes, prostheses.

Both parties argued extensively on this particular criterion and each filed evidence to support its arguments. The proprietor claimed that the applicant has even acknowledged the use of the contested mark for goods in Class 10. However, the Cancellation Division considers that the applicant’s arguments were, in fact, taken out of their context. But even if the applicant’s arguments would be in the sense of the proprietor's interpretation, the Office has to make its own evaluation of the evidence of use submitted. This means that the probative value of the evidence submitted is evaluated independently of the observations submitted by the applicant in this respect. Assessment of the relevance, pertinence, conclusiveness and efficacy of evidence lies within the discretion and power of judgment of the Office, not the parties, and falls outside the adversarial principle which governs inter partes proceedings (decisions of 01/08/2007, R 201/2006-4, OCB, § 19; 14/11/2000, R 823/1999-3, SIDOL).

A declaration by the applicant concluding that use has been proved does not, therefore, have any effect on the Office’s findings. It is solely up to the Office to carry out the procedure and evaluate whether the evidence submitted by the proprietor is to be regarded as of sufficient probative value.

This is not contrary to Article 95(1) EUTMR, which stipulates that in inter partes proceedings the Office is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought. However, although the Office is bound by the facts, evidence and arguments provided by the parties, it is not bound by the legal value that the parties may give thereto. Hence, the parties may agree as to which facts have been proved or not, but may not determine whether or not these facts are sufficient to establish genuine use (decisions of 01/08/2007, R 201/2006-4, OCB, § 19; 14/11/2000, R 823/1999-3, SIDOL, § 20; 13/03/2001, R 68/2000-2, NOVEX PHARMA).

The Cancellation Division considers the issue is in fact quite straightforward. The evidence submitted by the proprietor shows that the contested EUTM was used as an umbrella mark for prefilled syringes (obviously with needles included to be used with the syringes) with a pharmaceutical preparation meant to be injected for enhancement of lip and perioral areas and reduction of fine lines, filling medium-deep depressions, restore facial volume, etc.. Such goods belong to Class 5 because the purpose of buying them is in fact the use of the pharmaceutical product contained by those syringes and not the use of the syringes and needles as such with other products. The medical instruments/devices have the only purpose of storing the medication and, after they are purchased, they form the means by which the pharmaceutical preparation is inserted into the skin. The syringes as such indeed belong to Class 10 but only when they are sold and purchased empty with the intention to be used with different pharmaceutical preparations.

The parties largely disputed the nature of the goods for which the mark was registered and of the goods for which the mark was in fact used. The EC certificates for conformity might refer to the goods of the proprietor as medical devices or instruments, but this classification should not be confused with the trade mark classification of goods and services which is done according to the Nice Classification. The Cancellation Division underlines, for example, that according to Nice Classification artificial implants are classified in Class 10 and that living tissues used as surgical implants are classified in Class 5. Nevertheless, all the injectable dermal fillers as the ones for which the contested mark is used are classified in Class 5 and not in Class 10. In other words, the fact that under the EU Directives for CE marking, the proprietor’s injectable dermal fillers are considered to be medical devices or instruments cannot be accepted as justification for a genuine use of the EUTM’s registered goods in Class 10, since according to the Nice Classification such dermal fillers are classified in Class 5. Such distinction between the Class 5 and Class 10 goods has been properly explained above and it is clear also in the Nice Classification. Consequently, no evidence proves that the goods for which the mark JUVEDERM was used are artificial implants or medical or surgical apparatus and instruments and even less that they might be biocompatible substances for medical purposes for reducing wrinkles, artificial skin for surgical purposes or prostheses that are classified in this class, but rather refer to goods in Class 5.

As for the judgments of the Tribunal de Grande Instance de Paris, it is noted that, as far as the Cancellation Division understood from the translated parts, the decisions are not based on the genuine use of the mark JUVEDERM and concern actually completely different issues: an interim measure, an interlocutory infringement, or a likelihood or imminence of counterfeiting. In any event, in these cases the Tribunal provided only provisional measures of prohibition against Dermavita concerning goods in Class 3 (decision of 02/06/2017) and a pre-trial judgment in an action for infringement filed by Allergan (the EUTM proprietor) against Dermavita (the applicant) in which it was requested the stay of the respective proceedings in view of the pending decisions of the Cancellation Division in the present case and other parallel proceedings. The judgment in the second case (decision of 25/05/2018) is made without having to prejudge the substance of the proceedings. Consequently, the abovementioned cases cannot influence the Cancellation Division in deciding whether or not the contested EUTM has been genuinely used in the EU and neither can constitute reasons for non‑use.

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the contested EUTM for any of the goods for which it is registered. As a result, the application for revocation is wholly successful and the contested EUTM must be revoked in its entirety.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 25/10/2016.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the applicant are the cancellation fee and the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Oana-Alina STURZA

Ioana MOISESCU

Michaela SIMANDLOVA

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.