CANCELLATION No 48 859 C (REVOCATION)

Europak Oy, Pieni Teollisuuskatu 9, 02920 Espoo, Finland (applicant), represented by Kolster Oy Ab, Salmisaarenaukio 1, 00180 Helsinki, Finland (professional representative)

a g a i n s t

Euro-Pak 2000 SA, Avenue de Lothier, 30, 1150 Bruxelles, Belgium (EUTM proprietor), represented by Awa Benelux SA, Avenue Josse Goffin, 158, 1082 Bruxelles, Belgium (professional representative).

On 21/07/2021 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 3 121 522 are revoked as from 05/02/2021 for all the contested goods, namely:

Class 20:

Goods, not included in other classes, of wood, cork, reed, cane, wicker, or of substitutes for all these materials, or of plastics and other packaging included in this class, flexible containers (not of metal); packaging containers of plastic.

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

	Class 16:	Paper, cardboard and goods made from these materials, not in other classes; plastic materials for packing (not included in other classes); and in particular films, bags and pouches of plastic, for packaging.
	Class 22:	Sacks and bags (not included in other classes); bags for transporting and storing goods in bulk and other packaging included in this class.

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

REASONS

The applicant filed a request for revocation of European Union trade mark No 3 121 522 (figurative mark) (the EUTM). The request is directed against some of the goods covered by the EUTM, namely:

Class 20:

Goods, not included in other classes, of wood, cork, reed, cane, wicker, or of substitutes for all these materials, or of plastics and other packaging included in this class, flexible containers (not of metal); packaging containers of plastic.

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

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.

According to Article 58(2) EUTMR, where the grounds for revocation of rights only exist for some of the goods or services for which the European Union trade mark is registered, the proprietor’s rights must be revoked for those goods and services only.

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 16/01/2006.The revocation request was submitted on 05/02/2021. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 05/03/2021, the Cancellation Division duly notified the EUTM proprietor of the application for revocation and gave it a time limit of two months to submit evidence of use of the EUTM for the contested goods. This time limit expired on 10/05/2021.

The EUTM proprietor did not submit any observations or evidence of use in reply to the application for revocation within the specified 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 the contested goods 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 partially revoked and deemed not to have had any effects as from 05/02/2021 for all the contested goods. The EUTM remains valid for all the uncontested goods.

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 costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Maria José LÓPEZ BASSETS

Alina FRUNZA

Richard BIANCHI

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 submitted in writing at the Office within two months of the date of notification of this decision. It must be submitted 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 submitted 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.