CANCELLATION No 11 715 C (REVOCATION)

G.MC. Kenzie, S.L., c/Agustin de Betancourt 21, Planta 8, Negocenter, 28003 Madrid, Spain (applicant)

a g a i n s t

Michael Kors (Switzerland) International GmbH, Via Cantonale 18, 6928 Manno, Switzerland (EUTM proprietor), represented by Baker & McKenzie Barcelona, Av. Diagonal, 652 Edif. D, 8^a Planta, 08034 Barcelona, Spain (professional representative).

On 08/02/2017, 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 3 201 118 are revoked as from 01/09/2015 for part of the contested goods and services, namely:

Class 3: Soaps.

Class 9: Eyeglass cases.

Class 14: Clocks.

Class 18: Suitcases; umbrellas; leather and leather imitations included in class 18.

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory; whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Small domestic utensils and containers; glassware, dishes, cups, mugs, bowls and basins; soaptrays; combs and sponges; brushes (other than paint brushes) including tooth and hair brushes, but excluding make-up brushes; household articles of porcelain and earthenware.

Class 24: Table cloths, napkins and placemats; bed covers, bedding including sheets and pillow cases; towels and wash cloths, and textiles (piece goods) and textile household articles not included in other classes.

Class 25: Headgear.

Class 35: Advertising and publicity services and retail store services.

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

Class 3: Cosmetics and perfumery; toilet preparations.

Class 9: Eyeglass frames, eyeglasses, sunglasses, eye shades, protective eye wear and eye wear for sports.

Class 14: Jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches and timers.

Class 18: Carrying cases, bags, luggage except suitcases; handbags, purses, wallets.

Class 21: Make-up brushes.

Class 25: Clothing, footwear; belts.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 3 201 118 (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 3: Cosmetics and perfumery; soaps and toilet preparations.

Class 9: Eyeglass frames, eyeglasses, sunglasses, eyeglass cases, eye shades, protective eye wear and eye wear for sports.

Class 14: Jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches, clocks and timers.

Class 18: Carrying cases, bags, luggage, suitcases; umbrellas; handbags, purses, wallets; leather and leather imitations included in class 18.

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory; whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Small domestic utensils and containers; glassware, dishes, cups, mugs, bowls and basins; soaptrays; combs and sponges; brushes (other than paint brushes) including tooth, hair and make-up brushes; household articles of porcelain and earthenware.

Class 24: Table cloths, napkins and placemats; bed covers, bedding including sheets and pillow cases; towels and wash cloths, and textiles (piece goods) and textile household articles not included in other classes.

Class 25: Clothing, footwear and headgear; belts.

Class 35: Advertising and publicity services and retail store services.

The applicant invoked Article 51(1)(a) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

In the application for revocation filed on 01/09/2015, the applicant claims that the EUTM was not put to genuine use for a continuous period of five years.

On 29/02/2016, the EUTM proprietor submits evidence of use (listed below). Aside from detailing the evidence, the EUTM proprietor raises a preliminary legal point in relation to the admissibility of the application for revocation. Specifically, the proprietor points out that the official form used by the applicant for filing the application for revocation was in Spanish which did not correspond to the languages of the contested EUTM (English or German). The proprietor invokes the provisions laid down in Article 119(6) EUTMR and Rule 38(1) EUTMIR and claims that, since the applicant failed to submit a translation of the application for revocation into one of the pertinent languages of the contested EUTM, the request for revocation is inadmissible.

The EUTM proprietor points out that the contested EUTM has not been used during the relevant period in connection with goods in Classes 21 and 24, without, however, expressing an explicit surrender of its trade mark rights for those goods. In addition, the EUTM proprietor presents a list of goods and services, covered by the EUTM, in relation to which genuine use has been shown in the evidence:

Class 3: Cosmetics and perfumery; soaps and toilet preparations.

Class 9: Eyeglass frames, eyeglasses, sunglasses, eyeglass cases, eye shades, protective eye wear and eye wear for sports.

Class 14: Jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches, clocks and timers.

Class 18: Carrying cases, bags, luggage, suitcases; umbrellas; handbags, purses, wallets; leather and leather imitations included in class 18.

Class 20: Compact mirrors.

Class 25: Clothing, footwear and headgear; belts.

Class 35: Advertising and publicity services and retail store services.

In this list, apart from omitting goods in Classes 21 and 24, the EUTM proprietor strikes out some goods and services implying that the evidence does not show use for those. As regards the specification in Class 20, instead of the general indications used in the list of goods as registered, the EUTM proprietor specifies compact mirrors.

In its reply of 14/05/2016, the applicant emphasises that the evidence does not show use of the EUTM in its registered form and claims that the omission of the element ‘MK’ alters the distinctive character of the mark as registered. The applicant criticises some pieces of the evidence submitted by the EUTM proprietor stating that they do not show use in the relevant territory (for instance, catalogues being printed in the U.S.A., or some documents showing prices in U.S. dollars), that they are undated, and that they only refer to Michael Kors as a fashion designer, but not to the goods or services at issue. The applicant also notes that the evidence shows use for a very limited range of goods covered by the EUTM and that no sales figures have been provided to establish the exact quantities of the products sold.

In its rejoinder of 11/10/2016, the EUTM proprietor reiterates its observations in relation to the inadmissibility of the application for revocation and points out that the applicant did not contest this issue in its observations. As regards the factor of nature of use, the EUTM proprietor argues that the omission of the element ‘MK’ in the actual manner of use does not constitute a significant alteration to the mark’s distinctive character as the letters ‘MK’ are a mere acronym of the words ‘MICHAEL KORS’ which present the most distinctive and visually preponderant part of the EUTM. The proprietor highlights some explanatory details in relation to the pieces of evidence criticised by the applicant (for instance dates, sums of the sales transactions shown in the invoices) and concludes that the evidence shows genuine use for part of the goods and services as listed in the proprietor’s initial submissions.

Preliminary remark on the admissibility of the application for revocation

According to Article 119(5) EUTMR, an application for revocation shall be filed in one of the languages of the Office.

According to Article 119(6) EUTMR, if the language chosen, in accordance with paragraph 5, for the application for revocation is the language of the application for a trade mark or the second language indicated when the application was filed, that language shall be the language of the proceedings. The second sentence of this Article stipulates that, if the language chosen, in accordance with paragraph 5, for the application for revocation is neither the language of the [contested] trade mark nor the second language indicated when the application [for the contested trade mark] was filed, the party seeking revocation shall be required to produce, at his own expense, a translation of his application either into the language of the application for [the contested] trade mark, provided that it is a language of the Office, or into the second language indicated when the application [for the contested trade mark] was filed.

Concerning the use of official forms, the second sentence of Rule 95(b) EUTMIR states that when the form provided by the Office is used, it may be used in any official language of the Union, provided that it is completed in one of the languages of the Office as far as textual elements are concerned.

In the present proceedings, the first language of the contested EUTM is English, and the second language is German. Admittedly, the official form of application for revocation used by the applicant is in Spanish. Nevertheless, the language of the proceedings that is expressly indicated by the applicant on the form is English. Aside from the mandatory indications that are self-explanatory (e.g. identification of the parties, the number and registration date of the contested EUTM, ‘EN’ being chosen as the language of proceedings, the sufficiently clear indication of the grounds for the cancellation) the application for revocation does not contain any additional textual information relevant for the case. Since all the textual elements in the application form were comprehensible in English and the indication of language was English, there was no need to submit a translation of the official form.

Consequently, the Cancellation Division finds that the application for revocation has been correctly deemed admissible and the EUTM proprietor’s claim in that regard is rejected as unfounded.

GROUNDS FOR THE DECISION

According to Article 51(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 and 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) EUTMIR in conjunction with Rule 22(3) EUTMIR, 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 13/07/2004. The revocation request was filed on 01/09/2015. 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 01/09/2010 to 31/08/2015 inclusive, for the following contested goods and services:

Class 3: Cosmetics and perfumery; soaps and toilet preparations.

Class 9: Eyeglass frames, eyeglasses, sunglasses, eyeglass cases, eye shades, protective eye wear and eye wear for sports.

Class 14: Jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches, clocks and timers.

Class 18: Carrying cases, bags, luggage, suitcases; umbrellas; handbags, purses, wallets; leather and leather imitations included in class 18.

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory; whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Small domestic utensils and containers; glassware, dishes, cups, mugs, bowls and basins; soaptrays; combs and sponges; brushes (other than paint brushes) including tooth, hair and make-up brushes; household articles of porcelain and earthenware.

Class 24: Table cloths, napkins and placemats; bed covers, bedding including sheets and pillow cases; towels and wash cloths, and textiles (piece goods) and textile household articles not included in other classes.

Class 25: Clothing, footwear and headgear; belts.

Class 35: Advertising and publicity services and retail store services.

On 29/02/2016, the EUTM proprietor submitted evidence as proof of use.

List of evidence

The evidence to be taken into account is the following:

• The EUTM proprietor claims that Michael Kors is a world-renowned, award winning designer of luxury accessories and ready-to-wear products, and that his namesake company, established in 1981, produces a wide range of products under his signature ‘MICHAEL KORS’ Collection and ‘MICHAEL KORS’ labels. The EUTM proprietor submits printouts from various websites listing the awards won by Michael Kors, some of them outside of the relevant period (Exhibit A), and a printout from Wikipedia, the Free Encyclopaedia dedicated to Michael Kors (Exhibit B).

• By way of example, the EUTM proprietor submits three product catalogues: general catalogue of Fall 2015, jewellery catalogue of Spring 2015 and watches catalogue of Spring 2015 (Annexes 1-3). The cover pages of the catalogues display the words ‘MICHAEL KORS’ as in the following example: . The catalogues feature a range of fashion articles, including various items of women’s clothing (shirts, trousers, dresses, coats and other outerwear etc.), footwear (boots, shoes), belts and one hat; various bags and small leather goods (handbags, leather backpacks etc.), wristwatches and jewellery items (bracelets, necklaces, rings, earrings etc.), sunglasses and one bottle of perfume. The words ‘MICHAEL KORS’ are either directly affixed on them (for instance on bags, wristwatches, jewellery or the perfume), are printed inside (for instance on shoe insoles) or appear next to the photographs of the goods (for instance in relation to clothing and sunglasses).

• List of ‘MICHAEL KORS’ stores in the European Union (Annex 4), including in Italy and the United Kingdom (21 in each), Germany (17), Spain (11), France (10), the Netherlands (seven), Poland (five), Austria (four), Belgium, Hungary and Portugal (three in each), Romania (two) and in the Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania or Sweden (one in each). The evidence also contains photographs showing street views of some of those stores (Annex 5).

• Three press articles (Annex 6), published on 24/10/2012 at www.telva.com, on 26/05/2015 at www.vogue.co.uk, on 17/11/2010 at www.elle.es. The articles are dedicated to the opening of the ‘MICHAEL KORS’ stores in November 2010, May 2012 or May 2015, in Spain and the UK.

• A selection of ‘linesheets’ (tables showing products and, inter alia, their reference codes) in connection with a variety of women’s bags (handbags, shoulder bags, messenger bags, tote bags, satchels, back packs, multifunctional satchels and totes, duffel bags, flight bags etc.), and small leather goods (purses, small leather bags and cases for smart phones or tablet computers, wristlets, clutches, carryalls, card holders, bifold wallets, pencil cases, luggage tags, key fobs etc.) commercialised under various collections of the ‘MICHAEL KORS’ brand, for instance Holiday 2012, Fall 2013, Trans 2014 or Spring 2015 (Annexes 7-28). The cover pages of the ‘linesheets’ display the words ‘MICHAEL’ and ‘MICHAEL KORS’. The prices are indicated in US dollars.

• A selection of ‘linesheets’ in connection with women’s shoes (sandals, espadrilles, pumps, ankle boots, tall boots etc.) commercialised under various collections of the ‘MICHAEL KORS’ brand, including Spring 2013, Fall 2013, Spring 2014, Trans 2015, Spring 2015 and Fall 2015 (Annexes 29-34). The cover pages of the ‘linesheets’ display the words ‘MICHAEL’ and ‘MICHAEL KORS’. The prices are indicated in US dollars.

• In addition to selling the goods from its own shops, ‘MICHAEL KORS’ commercialise their goods in the European Union through a variety of retailers and online stores. To demonstrate that, the EUTM proprietor submits copies of 61 invoices, issued to different retailers located in Italy, Spain, France and the UK from 2013 to 2015 (20 invoices for 2013 in Annex 35, 21 invoices for 2014 in Annex 36, and 20 invoices for 2015 in Annex 37). The invoices contain product codes and names, quantities of the goods sold and the currency (EUR or GBP). On average, the quantities range from just a few items to several dozen per product type. The EUTM proprietor also submits tables (Annexes 35 bis, 36 bis, 37 bis) providing an overview of those sales transactions, by cross-referencing product codes, product types, names of collections or models, with (where available) the names and page numbers of the respective ‘linesheets’. The goods involved in the sales transactions are various handbags, travel bags (including back packs, satchels, pouches), multifunctional cases, cases for electronic devices, wallets, cosmetics bags, shoes, boots, sandals, phone cases, key fobs and luggage tags.

• Watches and jewellery under the ‘MICHAEL KORS’ brand are marketed in Spain, Italy, the UK, Ireland and France by Fossil S.L., Fossil Italia SRL, Fossil (UK) Ltd or Fossil France SA, respectively. The EUTM proprietor submits 28 invoices, issued to different retailers in those territories from 2012 to 2014 (Annex 38) in connection with transactions involving watches and jewellery. The invoices contain product codes and names, quantities sold (ranging from a couple of items to several dozen per type), the currencies (EUR or GBP) and, in the header of the invoices, the words ‘MICHAEL’ and ‘MICHAEL KORS’. The EUTM proprietor also submits lists showing product codes and photographs of jewellery items, including a range of women’s bracelets, rings, earrings and necklaces, both of precious and/or non-precious metals (Annex 39). The product lists contain the words ‘MICHAEL KORS’. For supporting the statement that ‘Fossil Group’ is the exclusive licensee for the manufacture, sale, distribution and promotion of watches and jewellery under the ‘MICHAEL KORS’ brand since 2004, the proprietor submits a couple of articles or news releases dated 2014 (Annex 40).

• Concerning use in relation to cosmetics and perfumery, the EUTM proprietor submits a selection of screenshots, obtained from the internet archive provider, ‘WayBackMachine’, showing that a range of cosmetics for lips, nails, face (compact powders) or body (artificial tan for legs), make-up brushes and fragrances under the ‘MICHAEL KORS’ brand (for instance ‘Very Hollywood Sparkling’, ‘Gold’ and ‘White’) were offered for sale from 14/12/2010 to 24/05/2015 by some online retailers that are based in the UK (House of Fraser, Harrods); prices are indicated in GBP (Annexes 41-42). The goods bear the words ‘MICHAEL KORS’ and the screenshots show that the goods appearing on the screen are filtered by this brand.

• Concerning use in relation to eyewear, the EUTM proprietor submits screenshots, captured by ‘WayBackMachine’, showing various ‘MICHAEL KORS’ sunglasses and eyeglass frames being offered for sale from 12/03/2013 to 09/05/2015 by some online retailers of optical goods (Sunglass Hut, Vision Express); prices are indicated in GBP (Annexes 43-44). The words ‘MICHAEL KORS’ are displayed next to the items, or at least the documents show that the products shown on the screen are filtered by this brand.

• Concerning use for jewellery, the EUTM proprietor submits screenshots, captured by ‘WayBackMachine’, showing a range of jewellery articles (bracelets, rings, earrings and necklaces) being offered for sale from 19/04/2014 to 16/08/2015 by some online retailers (House of Fraser, Ernest Jones, Goldsmith) that are based in the UK; prices are indicated in GBP (Annexes 45-47). The words ‘MICHAEL KORS’ are displayed next to the items, or at least the documents show that the products displayed on the screen are filtered by this brand.

• Concerning use for clothing, footwear, bags and other fashion accessories, the EUTM proprietor submits many screenshots, captured by ‘WayBackMachine’, showing a wide range of different items being offered for sale by the Spanish online retailer ‘Zalando’ from 03/06/2012 to 26/12/2014; prices are indicated in EUR (Annex 48). Next to each item, the words ‘MICHAEL KORS’, sometimes in addition to ‘MICHAEL’, appear. It is also clear that the items displayed on the screen are filtered by the ‘MICHAEL KORS’ brand. The documents mainly show women’s dresses, tops, trousers, outerwear, swimwear, shoes, sandals, boots, handbags, tote bags, clutch bags, purses, key fobs, sunglasses and smart phone covers.

• The EUTM proprietor submits a large selection of screenshots, captured by ‘WayBackMachine’, from the www.michaelkors.com global website, showing ‘MICHAEL KORS’ collections of women’s clothing (dresses, tops, trousers, outer clothing etc.), footwear (shoes, sandals, boots etc.), headgear (hats), belts, gloves, different types of bags, purses and wallets, key fobs, card cases, pencil cases, sunglasses, jewellery, wristwatches, cosmetics (lipsticks, skin beautification preparations, nail polishes, compact powders) and fragrances from 27/10/2010 to 18/06/2015 (Annex 49). In addition, the documents show fashion collections for men, including shirts, trousers, outerwear, wristwatches, sunglasses, headwear and scarves. The screenshots show the website as intended for customers in the U.S.A.

• For showing marketing efforts in the relevant period, the EUTM proprietor submits a selection of articles and press clips from fashion magazines, published in English or Spanish, for instance in the Spanish editions of Elle and Marie Claire online, the English edition of Vogue online, dated from 2011 to 2015 (Annex 50). These articles are dedicated to ‘MICHAEL KORS’ cosmetics (lipsticks, nail polishes, powder compacts, shimmers for face or body, make-up brushes) and fragrances from the collections of 2013/2014. Concerning the promotional activities for sunglasses of the 2013/2014 collections, the EUTM proprietor submits printouts from the Spanish edition of Marie Claire online (Annex 51). For showing promotion of jewellery items and watches, the proprietor submits press articles, published in 2011 and 2014, in the Spanish edition of Marie Claire online (Annex 52). In connection with the promotion of footwear (sports shoes, leather shoes, sandals etc.), the proprietor submits press articles as published in April 2015 in the Spanish edition of Elle online, and printouts, dated 23/11/2015 (outside of the relevant period), from the Spanish edition of Marie Claire online (Annex 53). Concerning promotion of clothing, including scarves, outerwear and belts, the proprietor submits printouts from the Spanish edition of Marie Claire online, in some instances it is mentioned that the goods are from the 2013 collection (Annex 54).

• For supporting the statement that ‘MICHAEL KORS’ goods are well recognised by the public, the EUTM proprietor submits excerpts from a market study covering Germany, the UK and Italy, as conducted by ‘GfK’ (Annex 55). The data shown in the documents covers the period from 2013 to March 2015 and relates to women’s watches.

In its submissions of 11/10/2016, and in reply to the applicant’s observations regarding the evidence, the EUTM proprietor presents the total amounts of the sales transactions shown by the invoices (Annexes 35-38 of the initial submissions). In particular, it is stated that the transactions shown by the invoices submitted for 2013 amount to EUR 330.501,13; for 2014 the amount is EUR 876.087,70; and for 2015 the amount is EUR 183.123,90; the total for the period from 2013 to 2015 is EUR 1.389.712,67.

Assessment of genuine use – factors

Time of use

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

Most of the evidence is dated within the relevant period, or refers to events that took place within that period (for instance, the press articles in Annexes 50-54, albeit printed outside the relevant period, nevertheless show promotion of fashion collections for 2013/2014).

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 15(1) EUTMR and Article 51(1)(a) EUTMR).

The invoices (Annexes 35-38) show that the place of use is Italy, Spain, France, the UK and Ireland. This is clear from the customer-specific information included in the invoices (particularly the addresses, also their legal forms of business), and the currency (EUR or GBP). In addition, the list of ‘MICHAEL KORS’ stores (Annex 4), when seen in conjunction with the press articles reporting on the opening of such stores (Annex 6), show that the place of use (besides the foregoing countries) is Germany, the Netherlands, Poland, Belgium, Hungary and Portugal, just to name those countries in which there are at least three ‘MICHAEL KORS’ stores. Moreover, the online retailers’ offers (Annexes 41-48) and the press articles showing promotion of the ‘MICHAEL KORS’ goods (Annexes 50-54) are intended for customers in the UK or Spain. Those serve as indirect proof of the EUTM proprietor’s commercial presence and marketing communication activities in those markets.

Some pieces of the evidence (for instance the ‘linesheets’ in Annexes 7-28, or the printouts from the www.michaelkors.com website in Annex 49) suggest that they refer, or relate to the United States market. 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. Therefore, the mere facts that a catalogue was printed in the U.S.A., or that the prices are specified in US dollars, do not mean that such evidence will be automatically dismissed. Furthermore, such aspects are far less relevant than the convincing evidence, in the form of invoices, showing sales transactions in several Member States of the European Union.

Therefore, a substantial part of the evidence relates to the relevant territory.

Nature of use: use as a trade mark

Nature of use requires, inter alia, 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.

The evidence clearly shows use of the words ‘MICHAEL KORS’ in connection with a range of goods (for a detailed analysis on use in relation to the registered goods and services, see the relevant section below). Those words are either directly depicted on the goods (for instance on handbags, jewellery items and wristwatches) or are displayed next to the product names, prices and photographs showing those goods (for instance in relation to clothing). Thus, it is clear that the words ‘MICHAEL KORS’ are used in a trade mark sense, in order to distinguish the goods of the EUTM proprietor (or its licensees) from those of other undertakings.

Nature of use: use of the mark as registered

‘Nature of use’ in the context of Rule 22(3) EUTMIR further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 15(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.

The purpose of Article 15(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 GC has held that the assessment of the distinctive or dominant character of one or more components of a complex trade mark must be based on the intrinsic qualities of each of those components, as well as on the relative position of the different components within the arrangement of the trade mark (24/11/2005, T-135/04, Online Bus, EU:T:2005:419, § 36).

It is appropriate to consider whether the form in which the contested trade mark is used contains differences which affect its distinctive character or whether, despite the differences, the mark used and the contested EUTM have the same distinctive character. First, the distinctive character of the EUTM must be clarified. Then, it must be considered whether or not the mark as used alters this distinctive character.

The registered form of the contested EUTM and some examples of actual use as demonstrated in the evidence are presented in the following table.

	MICHAEL KORS
EUTM as registered	Examples of actual use (e.g. Annexes 1, 19, 43)

The question is whether use shown in the evidence constitutes an acceptable variation of the EUTM in the form as registered.

The Cancellation Division finds it appropriate to establish at this point of the assessment that the EUTM proprietor operates in the fashion industry. In that market sector, it is customary for fashion designers to use their name (full name, first name only, or surname only) as a badge of commercial origin. Moreover, it is not uncommon that initials of the fashion designer’s full name are used along with their full name, or depicted in a logotype.

In the present case, the actual manner of use reproduces the words ‘MICHAEL KORS’ in the same, very slightly—almost imperceptibly—stylised typeface. What the actual use does not reproduce is the element ‘MK’ that appears in the upper part of the contested mark’s registered form and features a certain stylisation (the graphemes, ‘M’ and ‘K’, are coalesced).

The applicant argues that this is the critical point of the proof of use submitted by the EUTM proprietor and because of this alleged substantial alteration of the mark the evidence does not show genuine use of the EUTM.

The Cancellation Division notes, however, that the EUTM comprises a first name and a surname of a person, ‘MICHAEL KORS’, that are juxtaposed with an embellished depiction of the initials of that first name and surname, ‘MK’ (a monogram).

There is interdependence between the strength of the distinctive character of a mark and the effect of alterations. Marks of strong distinctive character may be less influenced by changes than marks of limited distinctiveness. Adding elements to, or omitting elements from, the mark are more likely to affect the distinctive character of marks of limited distinctiveness.

In the present case, there is no room for doubt that the element ‘MICHAEL KORS’ is endowed with an average degree of inherent distinctiveness. The same applies to the element showing the monogram. However, the distinctiveness of the EUTM is largely dominated by the words ‘MICHAEL KORS’ and only marginally influenced by the monogram, despite the fact that the monogram appears in the upper part of the sign. Essentially, this is because, in the relevant market sector, the full name of a person (fashion designer) is a more straightforward and certain identifier of commercial origin than the mere initials. Furthermore, when referring to the mark aurally, it would be cumbersome to enunciate the initials, ‘MK’. It can be reasonably assumed that the public would skip the initials and would only pronounce the full name, ‘MICHAEL KORS’. Therefore, the omission of the initials does not alter the distinctive character of the EUTM’s registered form.

In view of the foregoing, the Cancellation Division concludes that the use shown in the evidence constitutes an acceptable variation of the EUTM.

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).

The assessment of genuine use entails 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 documents filed, particularly the invoices in conjunction with the supporting overview tables and product lists (Annexes 35-39), the product catalogues (Annexes 1-3), the evidence in relation to ‘MICHAEL KORS’ shops in the European Union (Annexes 4 and 6), the evidence from the third-party online stores (Annexes 41-48) and the press clips showing marketing communication of the ‘MICHAEL KORS’ brand (Annexes 50-54) provide the Cancellation Division with sufficient information concerning the commercial volume, the territorial scope, the duration, and the frequency of use in relation to some of the contested goods and services, namely:

• cosmetics, toilet preparations and perfumery (the latter featured in product catalogue in Annex 1, and all of them being offered for sale online as shown in Annexes 41-42);

• eyeglass frames, eyeglasses, sunglasses, eye shades, protective eye wear and eye wear for sports (featured in product catalogue in Annex 1, offered for sale online as shown in Annexes 43-44);

• jewellery (featured in product catalogues in Annexes 1-2, sales proven by invoices and cross-referenced in product lists in Annexes 38-39, offered for sale online as shown in Annexes 45-47);

• watches with in-built timers (featured in product catalogues in Annexes 1 and 3, sales proven by invoices in Annex 38, brand awareness survey shown in Annex 55);

• carrying cases, bags, handbags, purses, wallets, various travel bags, back packs, satchels being encompassed by the term luggage (featured in product catalogue in Annex 1, sales proven by invoices in Annexes 35-37 and cross-referenced by the ‘linesheets’ in Annexes 35 bis-37 bis, offered for sale online as shown in Annex 48);

• make-up brushes (offered for sale online as shown in Annexes 41-42, featured in press clips in Annex 50);

• clothing, belts (featured in product catalogue in Annex 1, offered for sale online as shown in Annex 48, mentioned in press clips in Annexes 53-54);

• footwear (featured in product catalogue in Annex 1, sales proven by invoices in Annexes 35-37 and cross-referenced by the ‘linesheets’ in Annexes 35 bis-37 bis, offered for sale online as shown in Annex 48).

As regards the goods for which the EUTM proprietor submits invoices showing actual sales transactions, namely various bags, purses, wallets, multifunctional cases, some luggage items, shoes, boots, sandals, watches and jewellery, the quantities shown in the invoices are not particularly high per transaction. However, an overall assessment of the invoices show a substantial volume of sales that is clearly sufficient for creating and maintaining a position on the market by commercialising those goods under the contested EUTM. Although the EUTM proprietor did not submit turnover figures (as criticised by the applicant), the information presented in the invoices indicates that the physical volumes of sales, whilst not very high, are not merely token, but sufficient for establishing a commercial scale of transactions related to the abovementioned goods. In that regard, it is recalled that use of the mark need not be quantitatively significant for it to be deemed genuine. Moreover, the invoices submitted by the EUTM proprietor are only examples and do not represent the total sales (which can be inferred from the non-consecutive numbering of the invoices). Therefore, the evidence does show a sufficiently high commercial volume of sales of the abovementioned goods.

Admittedly, some of the contested goods, such as cosmetics, toiletries (including cosmetics for lips, nails, face and body, make-up brushes), perfumery, eyewear and clothing (including belts) are not featured in the sales transactions shown in the invoices. However, the Court has found that, under certain circumstances, even circumstantial evidence such as catalogues featuring the trade mark, while not providing direct information on turnover, can also be sufficient for proving extent of use in an overall assessment (08/07/2010, T-30/09, Peerstorm, EU:T:2010:298, § 42 et seq.). The catalogues, press clips and screenshots from the online store websites submitted by the EUTM proprietor, show that the goods were actually offered for sale to the public in the relevant territory either by the proprietor itself or with its consent by its distribution partners. It is considered that the circumstantial evidence shows a satisfactory extent of commercial use of the EUTM even in relation to the goods that are not mentioned in the invoices.

In relation to all of the abovementioned goods, the territorial scope is sufficiently indicated by the fact that the goods were sold, or at least were made available, to customers that are based in several countries within the European Union, in particular Spain, France, Italy, the UK and Ireland. The sufficient degree of the duration of use is clearly indicated by the fact that the EUTM proprietor submitted a number of invoices for years 2013, 2014 and 2015, and many screenshots of online stores captured within the relevant period. With regard to the frequency of use, the invoices, the ‘linesheets’, the quarterly product collections, the evidence showing the EUTM proprietor’s goods being offered for sale to customers in the EU and the promotional efforts clearly demonstrate regular and visible use of the contested EUTM.

All in all, the Cancellation Division considers that the EUTM proprietor has provided sufficient indications concerning the extent of the use of the EUTM in relation to some of the contested goods, as indicated above.

Those findings do not apply, however, to the rest of the goods or services at issue:

• there is no evidence whatsoever showing any use of the EUTM in connection with soaps; eyeglass cases; umbrellas; leather and leather imitations; all goods included in Classes 20, 21 and 24, except for make-up brushes in Class 21; all services in Class 35;

• with respect to clocks the Cancellation Division notes that they must be distinguished from watches. In that regard, it is recalled that clocks refer to timepieces that are free-standing, hanging on the wall or built in towers. Although the evidence has more than sufficient indications of use for wristwatches, there are no documents showing use for timepieces other than wristwatches;

• there is no evidence showing any use of the EUTM in connection with suitcases. Although the evidence contains sufficient indications in relation to other types of luggage (such as travel bags, back packs, satchels, duffel bags), suitcases do not appear to be included in the range of the proprietor’s travel collections presented in the evidence;

• the evidence does not reach the threshold for showing genuine use in relation to compact mirrors in Class 20, contrary to the EUTM proprietor’s claim. The Cancellation Division accepts that it is not uncommon that mirrors are integral parts of compact powder boxes. However, the entirety of the evidence submitted does not show a single instance of such use (the photographs of the compact powder boxes only show the lid and the powder; the mirror is not visible in any of the pictures);

• concerning headgear, the Cancellation Division notes that the evidence submitted contains some indications of hats being included in the ‘MICHAEL KORS’ fashion collections. However, the mere facts that hats appear in the general product catalogue (Annex 1) or that hats are featured on the EUTM proprietor’s global website (Annex 49) are insufficient in themselves for showing sufficient extent of use that would allow establishing that use for headgear reached the threshold for creating or maintaining a commercial outlet for such goods in the relevant period and in the relevant territory.

Therefore, the evidence does not reach the threshold for demonstrating sufficient extent of use for soaps; eyeglass cases; clocks; suitcases; umbrellas; leather and leather imitations; all goods included in Classes 20, 21 and 24, except for make-up brushes in Class 21; headgear and all services included in Class 35.

Use in relation to the registered goods and services

Article 51(1)(a) EUTMR and Rule 22(3) EUTMIR 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 following goods and services:

Class 3: Cosmetics and perfumery; soaps and toilet preparations.

Class 9: Eyeglass frames, eyeglasses, sunglasses, eyeglass cases, eye shades, protective eye wear and eye wear for sports.

Class 14: Jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches, clocks and timers.

Class 18: Carrying cases, bags, luggage, suitcases; umbrellas; handbags, purses, wallets; leather and leather imitations included in class 18.

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory; whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Small domestic utensils and containers; glassware, dishes, cups, mugs, bowls and basins; soaptrays; combs and sponges; brushes (other than paint brushes) including tooth, hair and make-up brushes; household articles of porcelain and earthenware.

Class 24: Table cloths, napkins and placemats; bed covers, bedding including sheets and pillow cases; towels and wash cloths, and textiles (piece goods) and textile household articles not included in other classes.

Class 25: Clothing, footwear and headgear; belts.

Class 35: Advertising and publicity services and retail store services.

However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the goods and services for which it is registered.

According to Article 51(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.

According to case-law, when applying the abovementioned provision the following should be considered:

… if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the subcategory or subcategories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or subcategories.

[Furthermore,] allowing an earlier trade mark to be deemed to be registered only in relation to the part of the goods or services in respect of which genuine use has been established … must be reconciled with the legitimate interest of the proprietor in being able in the future to extend his range of goods or services, within the confines of the terms describing the goods or services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him.

(14/07/2005, T‑126/03, Aladin, EU:T:2005:288)

Since consumers are searching primarily for a product or service to meet their specific needs, the purpose of the product or service in question is vital for determining their choice. Consequently, it is of fundamental importance when defining a subcategory of goods or services (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 29).

Each class of goods and services will be dealt with separately.

Goods in Class 3

In connection with Class 3, the evidence contains sufficient indications of use for various cosmetics articles, including make-up and nail polish, and perfumes. As established hereinabove, the evidence does not contain any indications whatsoever concerning soaps.

Genuine use for perfumes (several fragrances) satisfies the requirements of use for perfumery.

Turning to cosmetics and toilet preparations, it is impossible to clearly separate those broad categories as they overlap. Although these categories can be seen as sufficiently broad for several subcategories to be identified within them, the evidence shows that the contested EUTM has been used for a range of cosmetics both for the face and body, covering a sufficiently broad spectrum of cosmetics and toilet preparations.

Therefore, the evidence shows use for cosmetics and perfumery; toilet preparations in Class 3.

Goods in Class 9

In connection with Class 9, the evidence contains sufficient indications of use for various types and models of sunglasses and eyeglass frames. As established hereinabove, the evidence does not contain any indications whatsoever concerning use for eyeglass cases. Even though it is customary, in the relevant market sector, to present eyewear in specially adapted or designed cases, in the absence of any evidence showing such use it is impossible, without resorting to probabilities and presumptions, to establish that the EUTM was genuinely used for eyeglass cases.

The evidence shows use for some other goods that belong in this class, such as covers for smart phones and tablet computers. However, in that regard it has to be clarified that the EUTM is not registered for smart phone or tablet covers. Therefore, use for the goods that are not protected by the contested trade mark registration is irrelevant for the present assessment of genuine use.

Genuine use for numerous models of spectacle frames satisfies the requirement of use for eyeglass frames.

As regards eyewear, it is noted that it is impossible to clearly separate the categories of sunglasses, eye shades, protective eye wear and eye wear for sports, because of the overlap that exists among them. Therefore, the Cancellation Division considers that the instances of use showing different models of sunglasses, ranging from fanciful items that are purely fashion-driven, to practical aviator-style eye-shades that are used for protecting the eyes from UV rays, including during sporting activities, cover a broad spectrum of the foregoing, mutually overlapping, categories.

Finally, the EUTM is registered for the general category of eyeglasses which encompasses the foregoing types of goods. In view of the above considerations, it is considered that the use for a broad spectrum of sunglasses and other eyewear satisfies the requirement of use for eyeglasses.

Therefore, the evidence shows use of eyeglass frames, eyeglasses, sunglasses, eye shades, protective eye wear and eye wear for sports in Class 9.

Goods in Class 14

In connection with Class 14, the evidence contains sufficient indications of use for various types of jewellery, including articles made of precious and non-precious metals, and watches. As established hereinabove, the evidence does not contain any indications of use for clocks.

The evidence shows use for some other goods that are made from precious metals or coated therewith, such as key fobs. However, these goods are not covered by the specification of the EUTM. Therefore, use for the goods that are not protected by the contested trade mark registration is irrelevant for the present assessment.

Genuine use for numerous models of wristwatches, including with in-built timers, satisfies the requirement of use for watches and timers.

Turning to jewellery, it is noted that this category can be seen as broad enough for several subcategories to be identified within it. However, the evidence shows that the contested EUTM has been used for necklaces, bracelets, rings, earrings and jewellery charms, made both of precious and non-precious metals, covering a broad spectrum of jewellery.

Therefore, the evidence shows use for jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches and timers in Class 14.

Goods in Class 18

In connection with Class 18, the evidence shows sufficient indications of use for a large variety of bags, multifunctional cases, purses and wallets. As established hereinabove, the evidence does not contain any indications whatsoever of use for umbrellas or leather and leather imitations, the latter referring to raw materials that are used for the manufacture of leather goods, but that does not mean that use for finished articles would suffice for showing genuine use for those raw materials. As regards suitcases, it was already shown above that the evidence does not contain sufficient indications regarding this specific type of luggage.

It is clear that the evidence shows genuine use in relation to handbags, purses and wallets.

Turning to carrying cases, the evidence shows use for multifunctional cases that are obviously intended for carrying one’s belongings, documents or electronic devices, even though they are not adapted to hold such devices. Therefore, use for carrying cases is sufficiently proven.

Although bags are a broad category, it is considered that the extensive use in connection with different kinds of handbags, shoulder bags, clutch bags, messenger bags and so on is more than sufficient for covering a broad spectrum of bags.

As regards luggage, the evidence shows use for back packs, duffel bags, travel bags and other carriers for travellers which cover a broad spectrum of luggage. However, bearing in mind that genuine use is not shown in relation to suitcases, it is concluded that the evidence shows genuine use for the category of luggage except suitcases.

Therefore, the evidence shows use for carrying cases, bags, luggage except suitcases; handbags, purses, wallets in Class 18.

Goods in Class 20

The evidence does not contain any indications whatsoever of use for any of the goods in this class.

The EUTM proprietor claims that its mark is used in relation to compact mirrors belonging in this class. Indeed, the EUTM is registered for, inter alia, mirrors. However, as established in relation to the factor of extent of use, the evidence does not reach the threshold for proving genuine use of the EUTM in connection with such mirrors.

Goods in Class 21

The evidence does not contain any indications whatsoever regarding use for any of the goods in this class, except for make-up brushes. The latter are expressly mentioned in the contested list of goods. Therefore, the evidence shows use for make-up brushes in Class 21.

Goods in Class 24

The evidence does not contain any indications whatsoever regarding use for any of the goods in this class.

Goods in Class 25

As established hereinabove, the evidence does not contain sufficient indications of extent of use in connection with headgear.

The evidence suffices for satisfying the requirements of use in connection with belts that are expressly mentioned in the contested list of goods.

As regards clothing and footwear, the Cancellation Division finds it impossible to clearly identify coherent subcategories based on the purpose of those goods, since the purpose of any given item of clothing or footwear is to cover a part of the body, to protect against the elements or to serve as a fashion statement. Taking into account the fact that the evidence shows use of the EUTM for a number of different types of garments (dresses, tops, trousers, various types of outerwear and so on) and footwear (shoes, boots, sandals), it is considered that the evidence shows genuine use of those categories of goods for which the mark is registered.

Therefore, the evidence shows use for clothing, footwear; belts in Class 25.

Services in Class 35

The evidence does not contain any indications regarding use for any of the services in this class.

Admittedly, there is some evidence showing that the words ‘MICHAEL KORS’ are displayed on the signs of brick-and-mortar stores and in the headers of online shopping websites. Whilst it is clear that those stores are outlets for ‘MICHAEL KORS’ goods, there is no evidence that would even remotely suggest that goods of other brands are sold in those stores. Such use does not constitute use in connection with retail store services. That is because the activity of retailing consists of the bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods. It must be emphasised that the mere fact that ‘MICHAEL KORS’ goods obviously are offered for sale does not lead to the finding of genuine use of the EUTM in relation to retailing services which must be interpreted as services rendered for third parties.

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).

On an overall assessment of all the facts and circumstances relevant to establishing whether the commercial exploitation of the EUTM was real, the Cancellation Division concludes that the evidence is sufficient to show that the use was such as to create or maintain a share in the market, in the relevant territory and within the relevant period, for some of the goods and services protected by the EUTM. Therefore, genuine use of the contested mark has been sufficiently demonstrated for the following:

Class 3: Cosmetics and perfumery; toilet preparations.

Class 9: Eyeglass frames, eyeglasses, sunglasses, eye shades, protective eye wear and eye wear for sports.

Class 14: Jewelry belonging in class 14 including jewelry made of precious and non-precious metals; watches and timers.

Class 18: Carrying cases, bags, luggage except suitcases; handbags, purses, wallets.

Class 21: Make-up brushes.

Class 25: Clothing, footwear; belts.

Therefore, the Cancellation Division declares the EUTM to be revoked for the remaining goods and services for which it is registered.

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 3: Soaps.

Class 9: Eyeglass cases.

Class 14: Clocks.

Class 18: Suitcases; umbrellas; leather and leather imitations included in class 18.

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory; whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics.

Class 21: Small domestic utensils and containers; glassware, dishes, cups, mugs, bowls and basins; soaptrays; combs and sponges; brushes (other than paint brushes) including tooth and hair brushes, but excluding make-up brushes; household articles of porcelain and earthenware.

Class 24: Table cloths, napkins and placemats; bed covers, bedding including sheets and pillow cases; towels and wash cloths, and textiles (piece goods) and textile household articles not included in other classes.

Class 25: Headgear.

Class 35: Advertising and publicity services and retail store 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 55(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 01/09/2015.

COSTS

According to Article 85(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 85(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

Oana-Alina STURZA

Solveiga BIEZA

Michaela SIMANDLOVA

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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.