CANCELLATION No 12036 C (REVOCATION)

Natural Instinct Limited, 5 Admiralty Way, Camberley, Surrey, GU15 3DT, United Kingdom (applicant), represented by Irwin Mitchell LLP, 2 Wellington Place, Leeds, LS1 4BZ, United Kingdom (professional representative)

a g a i n s t

M.I. Industries, Incorporated, 6200 North 56th Street, Lincoln, Nebraska 68504, United States of America (EUTM proprietor), represented by Garreta i Associats Agència de la Propietat Industrial, Gran Via de les Corts Catalanes, 669 bis, 1º 2ª, 08013, Barcelona, Spain (professional representative).

On 26/11/2018, 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 5 208 418 are revoked in their entirety as from 03/11/2015.

3. The EUTM proprietor bears the costs, fixed at EUR 1 150.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 5 208 418 ‘INSTINCT’ (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 31: Pet foods and pet treats in Class 31.

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

Preliminary remark regarding a request for total surrender of the EUTM

The parties submitted arguments regarding a request for total surrender of the EUTM filed by the EUTM proprietor and a further request for withdrawal of the same. As far as these arguments are concerned, the Cancellation Division notes that this is a question of proceedings before the Register, as referred to in Article 57 EUTMR (former Article 50 EUTMR) and is not the subject of the present decision. As the request has been suspended by the letter of the Register of 12/04/2016, due to the present cancellation proceedings, the question of its processing will be dealt with by the Register, after the decision in the present cancellation proceedings is final.

As far as the present proceedings are concerned, the applicant was informed by the Office (on 14/03/2018) about the request for surrender of the EUTM and it was asked to state if it maintained the application for revocation. As the applicant stated (on 15/03/2018) that it did maintain the application, the Cancellation Division takes the present decision.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argued that the EUTM had not been put to genuine use during a continuous period of five years. The applicant also argued that the evidence of use submitted by the EUTM proprietor did not suffice to prove the use of the EUTM for the goods for which it was registered and that therefore it should be revoked in its entirety. The applicant also requested that an earlier date for revocation be fixed (it suggested alternative dates, the earliest being 27/07/2012, five years period immediately following the registration date of the contested registration).

The EUTM proprietor referred to a decision of the Board of Appeal (26/11/2015, R 2944/2014-5, Natural Instinct Dog and Cat food as nature intended (fig.) / NATURE’S VARIETY et al.) that was taken in opposition proceedings concerning the EUTM as one of the rights on which the opposition was based. The Board of Appeal confirmed the finding of the Opposition Division (in the opposition decision of 18/09/2014, B 2 181 272) that use had not been proven for the EUTM, which decision was then annulled by a judgment of the General Court in the decision of 15/02/2017, T‑30/16, M. I. Industries v EUIPO — Natural Instinct (hereinafter referred to as ‘the Court’s decision’). The case was remitted to the Board of Appeal for further analysis of the proof of use. In an interim decision, the Board of Appeal suspended the opposition proceedings until the decision in the present cancellation proceedings was taken and finalised. The EUTM proprietor stated that the reasoning set out in the Court’s decision should be taken into account in the present proceedings.

On 15/04/2016, the EUTM proprietor submitted evidence as proof of use, which is listed in the following section. It claimed that ‘INSTINCT’ was a mark used for pet food and pet treats manufactured in the USA by M.I. Industries, Incorporated, and that the evidence submitted demonstrated use during the period from September 2008 to November 2015. It explained that the company had entered the European Union market in 2008, selected the reseller Cats’ Country and shipped, from 2008 to 2010, large container loads of pet food. The EUTM proprietor claimed that a printout from Cats’ Country’s website from July 2011 demonstrated that the website had offered shipping to Europe and communication in German and English. It further stated that, since 2012, the EU market for the relevant goods had been served by a number of online retailers obtaining the products directly in the United States. The EUTM proprietor stated that ‘Amazon’s sales are maintaining the market and the brand will be relaunched by a new European distributor in the very near future’.

In its further submissions, the applicant stated that the evidence submitted by the EUTM proprietor was not sufficient to prove use of the EUTM and put forward its analysis of the items of evidence submitted. It claimed that the invoices, demonstrating sales to Cat’s Country, were internal and showed mere token use. It also stated that the affidavits by the EUTM proprietor’s Chief Financial Officer were not corroborated by other evidence. According to the applicant, the information from ‘Amazon’ submitted demonstrated only that certain goods were offered for sale, and not that any actual sales were made, as the goods contained raw meat, and therefore were not permitted to be shipped to the United Kingdom. For that reason, the applicant concluded, no figures were provided for actual sales. In support of its argument, the applicant explained that a purchase order had been placed with Amazon by a representative of the applicant for the goods offered under the EUTM. In this regard, the applicant submitted:

• A printout of an email that appears to be from Valomarket-Amazon Marketplace, with the email address having the extension @marketplace.amazon.co.uk, to a customer. The email explains that the order made for ‘Natures Variety Instinct Raw Frozen Chicken Chub for Dog & Cat’ could not be shipped because it contained raw meat. A full refund is offered to the customer.

In its further submissions (06/04/2017), the EUTM proprietor accepted as valid the email submitted concerning the refusal to ship goods containing raw meat. It stated, however, that the evidence nevertheless proved that products bearing the EUTM were offered in the EU market and marketed via Amazon, even if in particular instances a specific product could not be delivered for regulatory reasons. It inserted in its submissions undated screenshots showing ‘Instinct’ dog and cat food, apparently offered for sale on Amazon.com.

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 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).

Furthermore, assessing the circumstances of the case may include giving consideration, inter alia, to the nature of the goods or services, the characteristics of the market concerned and the scale and frequency of use of the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 39).

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

In revocation proceedings based on the grounds of non-use, the burden of proof lies with the EUTM proprietor as the applicant cannot be expected to prove a negative fact, namely that the mark has not been used during a continuous period of five years. Therefore, it is the EUTM proprietor who must prove genuine use within the European Union, or submit proper reasons for non‑use.

In the present case, the EUTM was registered on 26/07/2007. The revocation request was filed on 03/11/2015. 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 03/11/2010 to 02/11/2015 inclusive, for the following contested goods:

Class 31: Pet foods and pet treats in Class 31.

On 15/04/2016, the EUTM proprietor submitted evidence as proof of use.

The evidence to be taken into account is the following:

• A printout (archive) from the EUTM proprietor’s website www.instinctpetfood.com, dated 09/07/2012; the printout shows several packages of what appears to be dog food, bearing the sign .

• A label in German, dated ‘May 7/08’, which appears to be for cat food and incorporates the sign .

• Three invoices, dated between 22/09/2008 and 24/09/2010 (outside the relevant period), issued by a company (Nature’s Variety), based in the United States indicating that goods were billed and shipped to a company in Germany (with addresses in two different cities). The products sold under the mark ‘INSTINCT’, are described as ‘Can Cat Chicken’ (Lamb/Duck) and the quantities range from 500 to over 700 units per invoice. The prices are given in US dollars. A product called ‘Ins Can Cat Chix 13.2 — 12-13.2 oz cans per cs’ is also referred to in all three invoices, and it is described (in the first affidavit, listed below) as an ‘INSTINCT’ product.

• A printout (archive) from www.cats-country.de, dated 16/11/2011, relating to products for cats; the EUTM is not visible.

• First and second affidavits, dated 02/07/2014, by Robert Rubin, the EUTM proprietor’s Chief Financial Officer, originally submitted in relation to opposition B 2 181 272, explaining some of the evidence submitted. Mr Rubin states that the invoices (listed above) were issued to a customer in Germany, identified as Cats’ Country, which sells these products in Germany. He explains that the company is a retailer of cat and dog food in Germany, selling a range of pet-related products. Mr Rubin also claims that Cats’ Country is not part of the EUTM proprietor’s group of companies. It is explained that M.I. Industries, Incorporated, is the parent company of Nature’s Variety (which is the issuer of the invoices mentioned above).

• A further (third) affidavit, dated 19/01/2015, by Robert Rubin. This largely repeats information provided in the earlier second affidavit. However, it further states that certain ‘delivery problems’ occurred in relation to the 13.2 oz ‘Instinct Cat Chicken’ product, described as ‘a special item’. Mr Rubin explains: ‘We had issues getting our can manufacturer to slot in time for production on this item.’ As a result, the shipping of this item to Europe (to Cats’ Country) was delayed to reduce costs. Mr Rubin also claims that ‘[i]t is my further understanding from Cats Country that they continued selling our Nature’s Variety branded product in Europe through April 2012’. He also explains that the delivery problems ‘stopped INSTINCT branded products being a commercial success’.

• A printout from a web page the source of which is given as the website of the Nebraska Secretary of State, which points to the registration of the companies Nature’s Variety and M.I. Industries, Incorporated.

• A printout from a web page, the source of which appears to be the Nature’s Variety website, which states that M.I. Industries, Incorporated, is the parent company of Nature’s Variety.

• An affidavit, dated 19/01/2015, by Elina Sistonen, explaining that she is the owner and CEO of Cats’ Country, and confirming the statements made in the first affidavit by Robert Rubin and much of what he says in the other affidavits. Ms Sistonen also states that during 2008-2010 there were severe delivery problems regarding an item provided by M.I. Industries, Incorporated. She explains that, due to those problems, the products received in 2010 were sold to existing customers and thus the company was able to continue the supply to those customers in 2011 and up to April 2012. There is no information about the amount of products sold. Ms Sistonen appends an invoice dated 04/04/2012 for 15 cans (for a total of EUR 33) of the product, which appear to have been sold under the EUTM ‘Instinct’, and Ms Sistonen explains that these were the last products sold by the EUTM proprietor to Cats’ Country. She also confirms that the company Cats’ Country is independent of the EUTM proprietor.

• A printout from www.amazon.co.uk (with the print date 28/01/2016, outside the relevant period). The EUTM proprietor explains that, since 2012, goods bearing the EUTM have been ‘served by a number of online retailers directly acquiring their product in the US’. The EUTM proprietor refers to several online sellers about which it provides information. An entity called Daly Store offers a package of dog food marked with the sign for GBP 59.79, with the ‘date first available’ shown in the printout submitted as 06/12/2014. Rytier3 and Valomarket appear to be another two online sellers and information about them is provided in the form of a printout (bearing the print date) showing a can of cat food bearing the name ‘Nature’s Variety Instinct Grain-Free Canned Cat Food’. Daly Store and Rytier3 are listed as the sellers and prices in pounds sterling are given. Some ratings for this food have been posted by Daly Store (752 ratings ‘over the past 12 months) and Rytier3 (186 ratings ‘over the past 12 months’). The EUTM proprietor also submitted a printout headed Shop Nature’s Variety (bearing the print date and, in the top left corner, the text ‘Amazon.co.uk: Nature’s Variety: 2014’), which lists ‘Best Selling Pet Supplies Store from Nature’s Variety’ and shows offers for cans and packets of dog and cat food on which the EUTM can be seen (prices in pounds sterling are given). Another printout was submitted, which also appears to show a packet of dog food bearing the sign shown above, offered for sale by Valomarket, with the ‘date first available’ shown as 18/06/2015. The printout shows that there were 374 reviews, and those that are visible are dated between 12/12/2012 and 19/11/2014 (before the offer was posted); three of them refer to ‘Instinct’ in relation to dog food (the EUTM proprietor claims that it can be inferred ‘by the presence of reviews that the same or similar offers existed during the relevant period’). Still another printout (undated) shows ‘Nature’s Variety Instinct Grain-Free Canned Cat Food’ offered for sale. A spreadsheet, which the EUTM proprietor claims was supplied by Amazon (although the source is not indicated on the spreadsheet), relates to offers during the period 03/01/2015-06/02/2016. It lists, inter alia, ‘Instinct’, ‘Nature’s Variety Instinct’ and ‘Pride by Instinct Sherlock’s Salmon Recipe for Cats’ as cat and dog food for which sales amounted to 24 items during said period, and 18 items between 03/01/2015 and 31/10/2015 (within the relevant period).

• A printout from www.futter/und/tierbedarf.de (with the print date 15/03/2016, outside the relevant period). The following image is included: . The price given is EUR 90.84.

• A printout from www.amazon.de (with the print date 15/03/2016); it includes the above image and indicates that the offer was available on 28/11/2015. Another printout (offer available 10/12/2015) also depicts dog food bearing the earlier mark. A third printout shows several dog and cat food varieties bearing the EUTM. All the dates referred to are outside the relevant period.

• A document entitled ‘Facts & Figures 2014’ by ‘FEDIAF The European Pet Food Industry’, which provides information about the cat and dog populations in Europe and some figures such as number of pet food producing companies (650 plants) and annual sales of pet food products (volume, 9 million tons; turnover, EUR 15 billion). The proprietor also submitted a printout from www.mordorintelligence.com, headed ‘Europe Pet Food Market-Growth, Trends and Forecasts (2015-2010)’. Although it states that the ‘relatively stable and consolidated European market poses the threat of a high entry barrier’, it also explains that the ‘rise of e-commerce sector giving customers more flexibility and ease in shopping is helping both small and large scale manufacturers to expand easily’. The EUTM proprietor states that this document demonstrates that ‘[c]reating and maintaining market share is a long-term commitment’ and that ‘Europe is far from being a uniform market in terms of pet ownership and attitudes’.

Further submissions (dated 06/04/2017) only further illustrate information provided in the evidence listed above.

In relation to this additional material, the Cancellation Division notes that even though, according to Rule 40(5) Regulation (EC) No 2868/95 (applicable at the time of filing the application), the EUTM proprietor has to submit proof of use within a time limit set by the Cancellation Division, this cannot be interpreted as preventing additional evidence from being taken into account where new factors emerge (12/12/2007, T‑86/05, Corpo livre, EU:T:2007:379, § 50). The Office has to exercise the discretion conferred on it by Article 95(2) EUTMR (18/07/2013, C‑621/11 P, Fishbone, EU:C:2013:484, § 30). At any rate, in the present case the Cancellation Division notes that the information provided in the documents submitted on 06/04/2017 has little impact on the outcome of the decision, as the EUTM proprietor merely inserted some screenshots into the text of its observations, which, as seen above, show ‘Instinct’ dog and cat food apparently offered on Amazon.com.

Some of the evidence submitted by the EUTM proprietor originates from another company (Nature’s Variety), which the EUTM proprietor claims is one of its subsidiaries.

According to Article 18(2) EUTMR, use of the European Union trade mark with the consent of the proprietor will be deemed to constitute use by the proprietor.

The fact that the EUTM proprietor submitted evidence of use of its mark made by a third party implicitly shows that it consented to this use (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225), irrespective of whether or not the companies in question are economically related.

To this extent, and in accordance with Article 18(2) EUTMR, the Cancellation Division considers that the use made by this other company was made with the EUTM proprietor’s consent and thus is equivalent to use made by the EUTM proprietor.

As far as the affidavits signed by Mr Rubin are concerned, Article 10(6) EUTMDR (applicable to cancellation proceedings by virtue of Article 19(2) EUTMDR) expressly mentions written statements referred to in Article 97(1)(f) EUTMR as admissible means of proof of use. Article 97(1)(f) EUTMR lists, as means of giving evidence, sworn or affirmed written statements or other statements that have a similar effect under the law of the State in which they were drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perceptions of a party involved in a dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all.

The final outcome depends on the overall assessment of the evidence in the particular case. The probative value of such statements depends on whether or not they are supported by other types of evidence (labels, packaging, etc.) or evidence originating from independent sources.

In view of the foregoing, the remaining evidence must be assessed in order to ascertain if the contents of the affidavits are supported by the other items of evidence.

Furthermore, the EUTM proprietor refers to the Court’s decision mentioned above, annulling the decision of the Board of Appeal, regarding the proof of use of the EUTM used as a basis for opposition proceedings. The Cancellation Division takes into account the Court’s reasoning with regard to the evidence submitted in the present proceedings. It is, noted, however, that the analysis put forward by the Court, as well as the assessment made by the Board of Appeal, concerned a relevant period different from that in the present case. Therefore, the conclusions of the Court apply insofar as they are applicable to the relevant period in the present case.

Having examined the material listed above in its entirety, the Cancellation Division finds that the evidence is insufficient to establish genuine use of the trade mark.

Although some of the evidence refers to the relevant time (e.g. some of the printouts) and to the relevant territory (e.g. English and German are used, as are the country code top-level domains for the United Kingdom and Germany), and the EUTM is referred to in relation to goods that are included among the relevant goods (cat and dog food), the EUTM proprietor has failed to prove the extent of use of the EUTM during the relevant period of time.

As regards the extent of use, all the relevant facts and circumstances must be taken into account, including the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency.

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.

Evidence referring to use made outside the relevant period is disregarded unless it contains conclusive indirect proof that the mark must have been genuinely used during the relevant period as well. Events subsequent to the relevant period may make it possible to confirm or assess more accurately the extent to which the earlier mark was used during the relevant period and the applicant’s real intentions at the time (27/01/2004, C‑259/02, Laboratoire de la mer, EU:C:2004:50).

However, in the present case the majority of the sales for which evidence is provided are outside the relevant period, which can be seen from the three invoices dated between 22/09/2008 and 24/09/2010 and issued by Nature’s Variety. Furthermore, as these invoices refer to sales (transactions) that were completed well before the beginning of the relevant period, that evidence does not relate to the relevant timeframe at all. It is therefore concluded that this evidence (the three invoices) is not relevant for the present assessment.

The affidavit (dated 19/01/2015) provided by the owner of Cats’ Country (which appears to be an independent third party, as concluded by the Court’s decision, § 42 and 45) confirms that there were difficulties involving the delivery of the products, as also claimed by the EUTM proprietor. The affidavit, however, does not provide data (e.g. the amount of sales of the products concerned) that could enable the Cancellation Division to determine if the use was such as to create or preserve a market share for the relevant goods. The document gives specific information regarding one single sale, for which an invoice is attached. It should be noted that the invoice provided by this company is the only invoice that refers to the relevant period. This invoice is for only 15 cans (for a total of EUR 33); taking into account the comparatively low price of the items and the fact that for the relevant public (pet owners) these are everyday goods (or at least goods purchased on a very regular basis), the amount and quantity sold are considered insignificant.

The remaining evidence does not provide conclusive information about the extent of use of the EUTM either.

Furthermore, the majority of the remaining evidence consists of printouts from the internet. The standard applied when assessing evidence in the form of printouts from the internet is no stricter than when evaluating other forms of evidence. Consequently, the presence of the trade mark on websites can demonstrate, inter alia, the nature of its use or the fact that products or services bearing the mark have been offered to the public. However, the mere presence of a trade mark on a website is, in itself, not sufficient to prove genuine use unless the website also shows the place, time and extent of use or unless this information is otherwise provided.

In particular, the evidential value of internet extracts can be strengthened by submitting evidence that the specific website has been visited and, in particular, that orders for the relevant goods and services have been made through the website by a certain number of customers in the relevant period. For instance, useful evidence in this regard could be records that are generally kept when operating a business web page, for example records relating to the hits attained at various points in time or the countries from which the web page has been accessed.

The printouts submitted, although they show the relevant goods offered under the mark in question by various online sellers, do not change the above findings regarding the proof of the extent of use of the EUTM. Only the printouts related to offers by Valomarket and Daly Store include a date (the ‘date first available’ of the offer) that is within the relevant period. While they suggest that a product was offered for a certain price, the printouts do not provide information on any actual online transactions. From the printouts, it cannot be ascertained to how many customers (real or potential) the offer was made. There is no information on any certified means of payment, orders or confirmations thereof, registrations of safe transactions, etc., that could allow a conclusion to be drawn regarding the amount of any sales that may have been procured. While the printout related to Valomarket indicates that 374 reviews have been posted, only a few of them are actually shown, and only three of them mention the EUTM. Furthermore, it is indicated that the reviews are dated between 12/12/2012 and 19/11/2014, while the offer for the product itself was available from 18/06/2015 (long after the reviews were posted). This shows that said reviews were available before the product was offered for sale. Therefore, without any further information about the reviews’ content it cannot be concluded that they relate to the EUTM and that the three reviews that refer to the EUTM are more than merely incidental.

The printout headed ‘Nature’s Variety: 2014’ (including a list of goods) shows only depictions of the products and their prices. However, there is no information on orders/purchases made, or reactions (reviews) from any actual or potential consumers.

The printout from Amazon shows a product offered by two different sellers (Daly Store and Rytier3) and includes information about certain ratings of the product offered; these ratings appear to be based on customer reviews. However, the reviews are not listed or dated and it is only indicated that they were posted ‘over the past 12 months’. As the only date on this printout is the print date, namely 28/01/2016 (outside the relevant period), it cannot be ascertained how many of those reviews (if any) were made within the relevant period, and, without any further indication in that regard, it cannot be concluded that these reviews relate to the relevant period.

Finally, the spreadsheet submitted, which the EUTM proprietor claims originated from Amazon, does not contain any indication to confirm that claim. Without any independent data confirming its origin, it cannot be assumed to be a document originating from a third party but has to be considered information originating from the EUTM proprietor itself. Although it has to be taken into account, it needs to be supported by complementary information (regarding the actual use of the internet site by potential and actual consumers) originating from the claimed source of the document or by other material originating from independent parties. This, however, is not the case here. None of the items of evidence submitted corroborates the numbers in the spreadsheet; it is explained above that the rest of the printouts do not refer to any actual sales and that they show only three reviews mentioning the earlier mark. As the information about the sales referred to in the spreadsheet is not confirmed by any other evidence from independent sources, it cannot be concluded that the claimed sales have taken place.

The remaining printouts bear only a print date and/or refer to dates outside the relevant period without making reference to the relevant period, or are undated and therefore not relevant for the present assessment.

Taking into account the printouts submitted, it is concluded that there is no information on how long the products were offered or circulated on the web pages in question, as far as the relevant period is concerned, and there is no information (that could corroborate the information provided in the spreadsheet submitted) of any actual sales taking place. Furthermore, only three reviews clearly refer to the EUTM, while the other claimed reviews/hits cannot be related to the relevant mark and/or the relevant goods without resorting to suppositions based on probabilities. It is, however, not up to the Cancellation Division to make suppositions regarding the use of the mark; it is up to the EUTM proprietor to demonstrate such use in a manner that allows a reasoned conclusion that the use is not merely token to be made. The EUTM proprietor has failed to submit any evidence that could show how many consumers, during the relevant period, have posted reviews of or purchased the relevant goods marked with the EUTM. In the present case, no conclusion can be drawn regarding the turnover generated by the EUTM proprietor in relation to the relevant goods under the EUTM.

Finally, the remaining submitted evidence, such as the registration documents and the label, do not provide any information with regard to the extent of use either.

Therefore, an overall assessment of the evidence does not allow the conclusion, without resorting to probabilities and presumptions, that the mark was genuinely used during the relevant period for the relevant goods (15/09/2011, T‑427/09, Centrotherm, EU:T:2011:480, § 43).

The methods and means of proving genuine use of a mark are unlimited. The finding that genuine use has not been proven in the present case is due not to an excessively high standard of proof, but to the fact that the EUTM proprietor chose to restrict the evidence submitted (15/09/2011, T‑427/09, Centrotherm, EU:T:2011:480, § 46).

Considering the above, the Cancellation Division concludes that the evidence furnished by the opponent is insufficient to prove that the EUTM was genuinely used in the relevant territory during the relevant period of time.

Finally, the extracts from market reports submitted by the EUTM proprietor and the explanation that maintaining a market share poses certain difficulties do not change the above findings.

In accordance with Article 58(1)(a) EUTMR, the EUTM proprietor may either prove genuine use of the contested European Union trade mark or prove that there are justifiable reasons for non-use. These reasons cover circumstances arising independently of the EUTM proprietor’s will which prevent use of the contested European Union trade mark.

However, the concept of proper reasons must be considered to refer to circumstances arising independently of the will of the owner that make use of the mark impossible or unreasonable, rather than to circumstances associated with commercial difficulties it is experiencing (14/05/0008, R 855/2007-4, PAN AM, § 27; 09/07/2003, T‑162/01, Giorgio Beverly Hills, EU:T:2003:199, § 41; 18/03/2015, T‑250/13, SMART WATER, EU:T:2015:160, § 67-69).

Therefore, financial difficulties encountered by a company as a result of an economic recession or due to its own financial problems are not considered to constitute proper reasons for non-use within the meaning of Article 58(1)(a) EUTMR, as these kinds of difficulties constitute a natural part of running a business.

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 03/11/2015. An earlier date, on which one of the grounds for revocation occurred, may be fixed at the request of one of the parties. In the present case, the applicant has requested an earlier date, as mentioned above. It is noted, for the sake of completeness, that although the EUTM appears to be one of the rights on which opposition B 2 181 272 (mentioned above) was based, this would not be a valid reason for fixing an earlier date. The legal basis of the opposition requires the existence and validity of an earlier right within the meaning of Article 8(2) EUTMR. In this respect, if, in the course of the opposition proceedings, the earlier right ceases to exist, the final decision cannot be based on this right. The opposition may be upheld only with respect to an earlier right that is valid at the moment when the decision is taken and only on the basis of the goods and services for which this right is valid. Therefore, fixing an earlier date for the revocation in the present case would not change the outcome in the opposition proceedings mentioned above.

In exercising its discretion in this regard, the Cancellation Division considers that it is not expedient in this case to grant this request, since the applicant has not shown sufficient legal interest to justify it.

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

Liliya YORDANOVA

Irina SOTIROVA

María Belén IBARRA DE DIEGO

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.