DECISION

of the Fifth Board of Appeal

of 28 October 2019

In case R 178/2019-5

M.I. Industries, Incorporated
6200 North 56th Street Lincoln, Nebraska 68504 United States of America	EUTM Proprietor / Appellant

represented by Garreta I Associats Agència De La Propietat Industrial, S.L., Gran Via de les Corts Catalanes, 669 bis, 1º 2ª, 08013 Barcelona, Spain

v

Natural Instinct Limited
5 Admiralty Way Camberley, Surrey GU15 3DT United Kingdom	Cancellation Applicant / Defendant

represented by Irwin Mitchell Llp, 2 Wellington Place, Leeds LS1 4BZ, United Kingdom

APPEAL relating to Cancellation Proceedings No 12 036 C (European Union trade mark registration No 5 208 418)

The Fifth Board of Appeal

composed of G. Humphreys (Chairperson and Rapporteur), A. Kralik (Member) and A. Pohlmann (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 19 July 2006, M.I. Industries, Incorporated (‘the EUTM proprietor’) sought to register the word mark

INSTINCT

for the following list of goods:

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

2. The application was published on 15 January 2007 and the mark was registered on 26 July 2007.

3. On 3 November 2015, Natural Instinct Limited (‘the cancellation applicant’) filed a request for the revocation of the registered mark for all the above goods. 

4. The grounds of the request for revocation were those laid down in Article 58(1)(a) EUTMR (non-use).

5. In reply to the request, the EUTM proprietor filed the following evidence relating to the use of the contested mark:

• 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 the number of pet food producing companies (650 plants) and annual sales of pet food products (volume, 9 million tons; turnover, EUR 15 billion). The EUTM 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’.

6. The EUTM proprietor also referred to the General Court’s judgment in a parallel opposition case (15/02/2017, T-30/16, NATURAL INSTINCT Dog and Cat food as nature intended (fig.) / NATURE'S VARIETY et al., EU:T:2017:77). By this judgment, the Court annulled the Board’s decision in the opposition proceedings where the Board found that genuine use for the same ‘INSTINCT’ trade mark had not been shown. The case has been remitted to the Boards and is now suspended pending the outcome of the present proceedings.

7. By decision of 26 November 2018 (‘the contested decision’), the Cancellation Division revoked the EUTM proprietor’s rights in respect of European Union trade mark No 5 208 418 in their entirety as from 3 November 2015. The Cancellation Division gave, in particular, the following grounds for its decision:

• The EUTM was registered on 26 July 2007. The revocation request was filed on 3 November 2015. Therefore, the EUTM proprietor was required to prove genuine use of the contested EUTM from 3 November 2010 to 2 November 2015;

• Regarding the Court’s judgment referred to by the EUTM proprietor, the Cancellation Division notes that the present case concerns a different relevant period. Therefore, the conclusions of the Court apply in so far 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;

• 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 September 2008 and 24 September 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, so 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 January 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 so 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 amounts and quantities sold are considered insignificant;

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

• Taking into account the printouts submitted, it is concluded that there is no information on for 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 to be drawn that use is not merely token. The EUTM proprietor has failed to submit any evidence that could show how many consumers, during the relevant period, have posted reviews 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.

• In so far as the EUTM proprietor refers to financial difficulties encountered by a company as a result of an economic recession or due to its own financial problems, these circumstances do not constitute proper reasons for non-use within the meaning of Article 58(1)(a) EUTMR.

8. On 24 January 2019, the EUTM proprietor filed an appeal against the contested decision, requesting that the decision be entirely set aside. The statement of grounds of the appeal was received on 26 March 2019.

9. In its response received on 10 June 2019, the cancellation applicant requested that the appeal be dismissed.

Submissions and arguments of the parties

10. The arguments raised in the statement of grounds may be summarised as follows:

• It is first recalled that the General Court annulled a previous decision of the Office relating to proof of use of the same mark (15/02/2017, T-30/16, NATURAL INSTINCT Dog and Cat food as nature intended (fig.) / NATURE'S VARIETY et al., EU:T:2017:77). The Court found, on the basis of the same evidence, that the mark had been genuinely used;

• The evidence of use should be considered in its entirety. That means that, although some factors may lack in some pieces of evidence, the combination of all the relevant factors in all the pieces of evidence may still indicate genuine use;

• The evidence submitted shows that the contested mark had been used in Germany, within the relevant period, for the goods for which the contested mark is registered and in the same form as registered;

• Regarding the extent of use, the affidavit of Robert Rubin (Chief Financial Officer) of 2 July 2014 verifies all the proof of use submitted as true evidence and shows that the use has been duly extended. The extent of use is also proved by the broad list of products available at Amazon.co.uk in 2014, where the ‘INSTINCT’ trade mark appears to distinguish a large variety of dog and cat food products and the large list available at Amazon.de. Reference is made to the Office’s Guidelines which indicate that ‘even circumstantial evidence such as catalogues featuring the trade mark, despite not providing direct information on the quantity of goods actually sold, can be sufficient by themselves to prove the extent of use in an overall assessment.’

• It is also recalled that, in accordance with the Office’s Guidelines, the use does not have to be continuous during the relevant five-year period and it is not necessary to file evidence for every year of the relevant period. This has also been confirmed by the Court (16/12/2008, T-86/07, Deitech, EU:T:2008:577, § 52);

• Contrary to the Cancellation Division’s findings, which gives affidavits a lower evidentiary value, affidavits done and signed before a notary public comply with strict legal requirements and should be treated accordingly;

• In addition to the affidavit of Robert Rubin, the EUTM proprietor also submitted an affidavit of an independent retailer (Elina Sistonen, owner of a German company named Cats Country). This affidavit confirms that the company Cats Country purchased and sold ‘INSTINCT’ products until April 2012. The fact that only one invoice was attached to this Affidavit does not mean that this company only sold 15 units of the products. The invoice attached to the Affidavit was attached as a sample of the sales;

• The evidence filed is thus sufficient also to show the extent of use of the contested mark within the relevant period;

• Regarding the Cancellation Division’s finding that the parallel case where the Court found the evidence of use sufficient (15/02/2017, T-30/16, NATURAL INSTINCT Dog and Cat food as nature intended (fig.) / NATURE'S VARIETY et al., EU:T:2017:77), it has to be stressed that the conclusions of the General Court also apply in the case at hand, in so far as part of the evidence submitted in said proceedings also falls within the relevant period for this case;

• Finally, it has to be observed that the cancellation applicant is trying to obtain exclusivity for the term ‘INSTINCT’ alone since it has filed oppositions regarding all trade marks that contain the word ‘INSTINCT’ for ‘pet food’ independently of the other words accompanying the new application. This is a clear abuse of the law.

11. The arguments raised in reply to the appeal may be summarised as follows:

• In addition to the reasoning given by the Cancellation Division, it is observed that the EUTM proprietor failed to demonstrate that it consented to use of the mark by a third party. Unlike the ‘Vitafruit’ case (08/07/2004, T-203/02, Vitafruit, EU:T:2004:225), referred to by the Cancellation Division, the evidence here did not comprise invoices but evidence generally available from the Internet (amazon.co.uk and amazon.de printouts). Therefore, this evidence should not be accepted as evidence of use by the EUTM proprietor or with its consent;

• Even if the Board were to disregard these arguments and accept amazon printouts as valid pieces of evidence, they are, in any event, insufficient to show genuine use. It is recalled that, as established by the Court, there is ‘genuine use’ 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 service. It is evident from the amazon extracts that the price of the ‘INSTINCT’ products was about three times more than that of comparable products. While this price difference could be explained by the shipping costs, it cannot be reasonably argued that the offer amounted to creating or preserving an outlet for ‘INSTICT’ branded products in the European Union;

• The Cancellation Division rightly treated the customer reviews from amazon with caution. As it was observed, some of these reviews were posted before the products bearing the ‘INSTINCT’ trade mark were first offered for sale and only three of them mention the mark;

• The cancellation applicant also observes that the ratings submitted are in fact ratings regarding the sellers (such as DALY Store, Rytier3, Valomarket) and not for any specific product. The only evidence relating to an ‘INSTINCT’ branded product is the evidence relating to ‘Raw Boost Grain-Free Chicken’ (pages 60-61). However, these reviews on amazon.co.uk do not originate from UK customers which is clearly stated in the evidence (‘There are no customers reviews yet on amazon.co.uk’ and ‘Most helpful customer reviews on amazon.com’;

• The only evidence of actual sales within the relevant period is the evidence from Cats Country referring to 15 units of an ‘INSTINCT’ branded product sold in April 2012 for a total of EUR 33;

• Furthermore, it has to be stressed that the last sale of the ‘INSTICNT’ branded product by the EUTM proprietor took place in September 2010. Subsequent downstream sales by the third party do not amount to ‘preserving or creating a market share for the goods or services protected by the mark’;

• The Court’s judgment referred to by the EUTM proprietor did not establish a lower threshold for the assessment of proof of use. Contrary to the EUTM proprietor’s arguments, the contested decision is not incompatible with this judgment. The Cancellation Division made a clear reference to the contested decision and explained that the relevant periods for proving genuine use were different.

Reasons

12. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

13. As a transitional measure, Article 80 EUTMDR foresees that the CTMIR and BoA-RoP shall continue to apply to ongoing proceedings until such proceedings are completed, provided that the EUTMDR does not apply in accordance with its Article 82.

14. Pursuant to Article 82(2)(j) EUTMDR, in the present case the EUTMDR has to be applied as regards the appeal proceeding. However, pursuant to Article 82(2)(f) EUTMDR, the CTMIR has to be applied with respect to the request for revocation and, consequently, regarding the proof of use.

15. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

Revocation for non-use (Article 58(1)(a) EUTMR)

16. Pursuant to Article 58(1)(a) EUTMR, the rights of the proprietor of the trade mark shall be declared revoked on application to the Office, if, within a continuous five-year period, the trade mark has not been put to genuine use in the Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use; however, no person may claim that the EUTM proprietor’s rights in an EU trade mark should be revoked where, during the interval between expiry of the five-year period and filing of the application, genuine use of the trade mark has been started or resumed; the commencement or resumption of use within a period of three months preceding the filing of the application which began at the earliest on the expiry of the continuous period of five years of non-use shall, however, be disregarded where preparations for the commencement or resumption occur only after the EUTM proprietor becomes aware that the application may be filed.

17. According to Rule 40(5) CTMIR, if the proprietor of the EU trade mark does not provide proof of genuine use of the contested EUTM within the time-limit set by the Office, the EU trade mark shall be revoked.

18. There is genuine use of a trade mark where the mark is used in accordance with its essential function as a trade mark, which is to guarantee the identity of the origin of goods or services for which it is registered, in order to create or preserve an outlet for those goods and services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 43). Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (11/03/2003, C-40/01, Minimax, EU:C:2003:145, § 37; 30/04/2008, T-131/06, Sonia Sonia Rykiel, EU:T:2008:135, § 38; 18/01/2011, T-382/08, Vogue, EU:T:2011:9, § 27).

19. Genuine use of a trade mark in the sense of Article 58(1)(a) EUTMR in conjunction with Article 18 EUTMR must be understood to denote real use that is not merely token, serving solely to preserve the rights conferred by the mark (fictitious use). Genuine use of the mark entails use of the mark on the relevant market and not just internal use by the undertaking concerned (27/09/2007, T‑418/03, La Mer, EU:T:2007:299, § 54; 11/03/2003, C-40/01, Minimax, EU:C:2003:145, § 36-37). Genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (12/12/2002, T-39/01, Hiwatt, EU:T:2002:316, § 47).

20. As to the criteria for assessing genuine use, account must be taken of the facts and circumstances of each case, regard being had to the wording of Rule 22(3) CTMIR which states that the indications and evidence for furnishing proof of use are to consist of indications concerning the place, time, extent and nature of use.

21. In the present case, the contested EUTM was registered on 26 July 2007 and the request for revocation was filed on 3 November 2015. Therefore, the contested EUTM had been registered for more than five years at the filing date of the request. Consequently, the EUTM proprietor had to provide proof of genuine use of its mark between 3 November 2010 and 2 November 2015.

22. The EUTM proprietor filed the evidence of use described in paragraph 5 above.

23. The Cancellation Division considered the evidence insufficient to demonstrate genuine use. Even if some of the evidence referred to the relevant time and the relevant territory (the UK and Germany) and indicated use for cat and dog food, the EUTM proprietor failed to prove the extent of use of the contested EUTM.

24. The relevant evidence relating to the extent of use is the following: affidavits by Robert Rubin, the EUTM proprietor’s Chief Financial Officer, an affidavit by Elina Sistonen, the owner and CEO of Cats’ Country (distributor of the EUTM proprietor’s products), accompanied by one invoice dated within the relevant period (invoice dated 04/04/2012 for a total of EUR 33).

25. The remaining pieces of evidence are either dated outside the relevant period or do not show actual sales of the EUTM proprietor’s products and, therefore, may serve to substantiate the place or nature of use of the mark but not the extent of use.

26. Turning back to the relevant evidence, it is observed that the affidavits from Robert Rubin, the EUTM proprietor’s director do not refer to any specific sales of the ‘INSTINCT’ products in the European Union within the relevant period. The invoices referred to and attached to these affidavits are dated 22 September 2008, 10 April 2009 and 24 September 2010. They pre-date the relevant period. While these three invoices were indeed decisive for the Court’s finding that the Board of Appeal’s global assessment of the genuine use of the earlier mark ‘INSTINCT’ was vitiated by errors, the same invoices would only be relevant in the present proceedings if they were corroborated by evidence of use within the relevant period.

27. However, the evidence submitted shows that the EUTM proprietor shipped its products to EU distributors in 2008, 2009 and 2010 (cf. the third affidavit of the EUTM proprietor’s director, dated 19 January 2015, point 3). This information is also confirmed by the affidavit of Cat’s Country (cf. affidavit of Cat’s County director, dated 19 January 2015). The second document clearly states that the last delivery from the EUTM proprietor took place in September 2010 (i.e. two months before the commencement of the relevant period).

28. Therefore, even assuming that some ‘INSTINCT’ branded products could have remained in stock, there is no evidence of actual sales of these products except for one single invoice dated 4 April 2012 for the amount of EUR 33. Such an extent of sales is manifestly insufficient to demonstrate genuine use and, given the fact that no further deliveries of the EUTM proprietor’s products followed, does not amount to preserving an outlet for the goods in accordance with the essential function of a trade mark.

29. It is recalled that, in assessing the extent of use, 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 (24/05/2012, T-152/11, Mad, EU:T:2012:263, § 21). The evidence filed in the present case neither shows significant volumes nor frequent sales within the relevant period.

30. In view of the foregoing, the appeal is dismissed. The reasoning of the Cancellation Division is fully endorsed.

Costs

31. Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the EUTM proprietor, as the losing party, must bear the cancellation applicant’s costs of the cancellation and appeal proceedings.

32. As to the appeal proceedings, these consist of the cancellation applicant’s costs of professional representation of EUR 550.

33. As to the cancellation proceedings, the Cancellation Division ordered the EUTM proprietor to bear the cancellation applicant’s representation costs which were fixed at EUR 450 and the cancellation fee of EUR 700. This decision remains unaffected. The total amount for both proceedings is, therefore, EUR 1 700.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the EUTM proprietor to bear the cancellation applicant’s costs in the appeal proceedings, which are fixed at EUR 550. The total amount to be paid by the EUTM proprietor in the appeal and cancellation proceedings is EUR 1 700.

Signed G. Humphreys

Signed A. Kralik

Signed A. Pohlmann

Registrar: Signed H.Dijkema