CANCELLATION No C 39 783 (REVOCATION) 

 

Klara Labalestra, Na Porici 12, Praha, Czech Republic (applicant)

 

a g a i n s t

 

Tomáš Pavel, Kpt. Stránského 959/39, 198 00 Praha 9, Czech Republic  (EUTM proprietor), represented by Václav Král, Mánesova 808/22, 500 02 Hradec Králové, Czech Republic (professional representative).

On 12/04/2021, the Cancellation Division takes the following

 

 

DECISION

1.	The application for revocation is upheld.

 

2.	The EUTM proprietor’s rights in respect of European Union trade mark No 7 428 519 are revoked in their entirety as from 20/11/2019.

 

3.	The EUTM proprietor bears the costs, fixed at EUR 630.

 

REASONS

 

On 20/11/2019, the applicant filed a request for revocation of European Union trade mark No 7 428 519 (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 29: Sterilized, pickled and preserved vegetables, sterilized and pickled mixtures and salads, compotes and fruit sauces, tomato purée, pickled cucumbers.

Class 31: Fresh fruits and vegetables, in particular cucumbers.

Class 35: Acquisition, marketing, sales promotion, business information and advertising, distribution of goods for advertising purposes, in particular for the sale of the Znojmo cucumber.

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

SUMMARY OF THE PARTIES’ ARGUMENTS

 

The applicant argues that the mark has not been put to genuine use in the relevant territory for a continuous period of five years. Moreover, the applicant claims that the contested mark could mislead the public as regards the nature, quality and geographical origin of the contested goods and services. She claims that the mark conflicts with the protected designation of origin (PDO) ‘Znojemské okurky’ (‘Znojmo gherkins’) registered in the Czech Republic. She puts forward that the mark was originally not misleading as it was owned, until 2016, by a cooperative seated in Znojmo, and the products sold under the mark were in compliance with the PDO, which requires the gherkins to be produced in a defined area in Znojmo and its surroundings. On the contrary, the current owner is resident in Prague and he licensed the mark to a company with registered seat in Tábor. The company does not have any facility in Znojmo or its surroundings and does not produce the gherkins in the designated area. She concludes that the contested trade mark has become misleading as to the geographical origin of the products, as the consumers will expect the products to originate in Znojmo, as indicated in the trade mark, while in fact they are not produced in that area nor are they produced from cucumbers grown in that area.

The applicant submitted the following documents to support her arguments:

 Extract from the EUIPO database regarding the contested mark.

 Extract from the database of PDOs and PGIs of the Czech IPO regarding the PDO ‘Znojemské okurky’.

 Extract from the database of PDOs and PGIs maintained by WIPO regarding ‘Znojemské okurky’.

 Extract from the trade licensing register for the company PT servis konzervárna spol. s r.o. (the licensee of the EUTM proprietor), according to which the business premises of the company are in Tábor.

 A printout from the website of the EUTM proprietor’s licensee, where it is stated that the products sold under the contested mark are produced in Tábor.

 A printout from the trade mark database of the Czech IPO regarding the EUTM proprietor’s Czech trade mark No 302504, identical to the contested trade mark.

 

The EUTM proprietor argues that he obtained the contested mark in 2015, and in the same year, he granted a license to PT servis konzervárna spol. s r.o. This company started to produce the pickled gherkins under the contested trade mark and according to the protected recipe which the owner obtained from the original owner of the trade mark. The EUTM proprietor submits documents to demonstrate the use of the trade mark (listed below) and claims that the licensee uses the mark genuinely and intends to continue using it. As regards Article 58(1)(c) EUTMR, the EUTM proprietor puts forward that the designation ‘Znojemské okurky’ is not subject to any protection corresponding to a PDO. He carried out a search in the official register of PDOs maintained by the European Commission and found no conflicting PDO or PGI. The EUTM proprietor points out that the reference to the Czech PDO is irrelevant as the only relevant register, for a potential conflict with an EUTM, is the one maintained by the Commission and it argues in detail to this effect. It concludes that the protection of the mentioned national PDO, which was not registered on the EU level, expired in 2004 and the PDO is no longer in effect. Therefore, the contested mark is in no conflict with any PDO. Furthermore, the EUTM proprietor argues that it obtained, together with the contested trade mark, the original recipe for pickling cucumbers, from the original owner of the trade mark, which is the traditional recipe used for pickling Znojmo cucumbers in the Znojmo region. Neither the EUTM proprietor nor the licensee intend to claim that the gherkins they produce originate in Znojmo. Their intention was to inform consumers that the gherkins were produced according to a recipe that is a traditional recipe originating in Znojmo region and the products are presented in this way, as seen also on the licensee’s website submitted by the applicant. The EUTM proprietor explains that in the course of time, the words ‘made in Tábor according to a traditional classic recipe’ were added to the label under the contested mark. According to the EUTM proprietor, the term ‘Znojemské okurky’, which originally applied to the place where the products were produced, has become common and serves to indicate the category of products which not necessarily originate in Znojmo. He claims that for the consumers it is more important how the gherkins are pickled, according to which recipe, than where they are grown or manufactured. He submits documents (listed below) to support these arguments. The EUTM proprietor concludes that the mark has been genuinely used and it is not liable to mislead the public and, therefore, the application for revocation should be rejected.

The applicant explains the history of gherkin growing and pickling in the Znojmo region, which dates back to the 16^th century, and emphasizes that the success of the cucumbers in that region is owed to the sunny climate and suitable soil specific to that area. Znojmo gherkins became popular and were sold not only in the Czech Republic but also exported to other countries. She claims that the name ‘Znojemské okurky’ has been the guarantee for consumers that the gherkins were grown and processed in the Znojmo region. She points out that the EUTM proprietor himself admits that the goods do not originate in the Znojmo area. According to the applicant, the addendum put to the labels (produced in Tábor according to the traditional classical recipe) does not change the misleading nature of the trade mark, as it is merely an attempt to avoid liability. The words ‘traditional classic’ reinforce the deception of the consumers, who will see this as a reassurance that the products are indeed the classic gherkins from Znojmo. The EUTM proprietor’s intentions, as he describes them, can change nothing about the perception of the consumers, who will see the designation ‘traditional classic Znojmo gherkins’ as an indication that the product is the traditional classic gherkin from Znojmo. The applicant disagrees that the term ‘Znojemské okurky’ has become a synonym to pickled gherkins and reiterates the tradition of gherkin growing and pickling in the Znojmo region. She also questions the applicant’s claim that his gherkins have been increasing in popularity and argues that they may be popular because consumers assume that they are buying the traditional quality product. She argues that by using the sign in a deceptive manner, the EUTM proprietor obtains a significant advantage over his competitors. The applicant maintains her position that the EUTM proprietor’s licensee is using the trade mark in a deceptive manner.

She submitted further documents, namely the following:

 Extract from the website http://zkraju.cz, with translation into English.

 Extract from the website of the city of Znojmo regarding the yearly gherkin festival in an article entitled ‘Znojmo gherkin, the national treasure of the Czech gastronomy, celebrates 440 years’, with translation into English.

 

The EUTM proprietor reiterates his previous arguments and insists that the average consumer does not perceive the mark as an indication of geographical origin but as a type of gherkins made according to a specific recipe. The EUTM proprietor claims that the addition of the text ‘produced in Tábor’ is sufficient to avoid the misleading of the consumers and, to support this, submits the decision of Czech Agriculture and Food Inspection Authority (hereinafter ‘SZPI’), by which the EUTM proprietor was ordered to add information about the true place of origin of the products as, according to the authority issuing the decision, without that information the consumers could be misled by the text in the contested mark, as far as the geographical origin of those goods is concerned.

The applicant points out that it is not only the name of the city of ‘Znojmo’ that is present in the contested mark but the reference to Znojmo is also made in the label by the depiction of Znojmo’s landmarks, such as the distinctive steel railway bridge. She reiterates her previous arguments. She points out that the decision of SZPI in fact concludes that, without the addendum, the mark may mislead consumers, and that the addendum is not part of the trade mark. Nevertheless, according to the applicant, the addendum is very small and consumer might not even notice it under the large inscription ‘Znojemská okurka’ and even the addendum does not prevent the mark from being deceptive. The applicant submitted photographs of Znojmo and its railway bridge and a Wikipedia printout from online sources with information about the bridge.

The EUTM proprietor claims that average consumers in the Czech Republic or anywhere else will not recognize the bridge on the label as Znojmo bridge because it is not a famous landmark. He repeats his previous arguments as to the perception of the mark by average consumers and denies that they would assume that the gherkins were grown or produced in Znojmo upon seeing the mark. He emphasizes that the addendum complies with the decision of SZPI and prevents any possible confusion. It maintains that the application should be rejected.

Article 58(1)(a) EUTMR – GENUINE USE

 

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 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 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 15/10/2009. The revocation request was filed on  20/11/2019. 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  20/11/2014 until 19/11/2019 inclusive, for the contested goods and services listed in the section ‘Reasons’ above.

 

On 29/01/2020 and 30/01/2020 the EUTM proprietor submitted the following evidence as proof of use:

 

 License agreement dated in 2015, between the EUTM proprietor and PT Servis konzervárna spol. s r.o. regarding the use of the Czech trade mark No 302 504 which is identical to the contested mark.

 Agreement of Transfer of Business Secret between the EUTM proprietor and a cooperative with registered address in Znojmo, ‘Znojemská okurka’ which involves a recipe for production of pickled gherkins.

 Production reports showing production figures from between 2015 and 2019 compiled by a licensee’s employee, showing hundreds of thousands products (Znojmo gherkins) produced each year.

 Two images of labels for a product – pickled gherkins, containing the contested mark in colours and information about the product in Czech and Slovak, one of them includes the contested mark without the addendum , the other includes also the additional text: .

 Email conversations including orders placed from an email address that appears to belong to the EUTM proprietor’s licensee to a printing company, for labels for ‘Znojemská okurka’ (among other products), dated between 2015 and 2019.

 Lists of EUTM proprietor’s licensee’s customers regarding ‘Znojmo gherkins’, dated between 2015 and 2019, and a sample translation; the clients are Czech customers and the total sales are of hundreds of thousands of products per year.

 Invoices for ‘Znojmo gherkins’ (among other products) including delivery notes dated between 2015 and 2019 and a sample translation into English; the invoices are issued by the EUTM proprietor’s licensee to different entities in the Czech Republic including known food retail chains.

 Promotional leaflets of various Czech food retail stores containing jars of pickled gherkins labeled with the contested mark, namely a Norma leaflet dated in 2016, Globus and Penny leaflets dated in 2017 and Penny Market and Lidl promotions from 2018 and 2019.

 Printouts from the websites www.znojemska-okurka.cz and www.pt-servis.cz showing jars with pickled gherkins labeled with the contested mark and photographs from events where the products under the contested mark were promoted.

 

ASSESSMENT OF GENUINE USE

  

Article 58(1)(a) EUTMR and Article 10(3) EUTMDR 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 29: Sterilized, pickled and preserved vegetables, sterilized and pickled mixtures and salads, compotes and fruit sauces, tomato purée, pickled cucumbers.

Class 31: Fresh fruits and vegetables, in particular cucumbers.

Class 35: Acquisition, marketing, sales promotion, business information and advertising, distribution of goods for advertising purposes, in particular for the sale of the Znojmo cucumber.

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 58(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.

 

In the present case, the evidence does not show any use at all for any of the registered goods or services other than pickled gherkins (in view of the list of goods in the original language, this is equivalent to the registered pickled cucumbers). All the submitted documents refer to these products and no others (as far as the contested mark is concerned). The EUTM proprietor himself admits that there has been no use of the mark for any of the goods registered in Class 31. His argument that he may, in the future, start using the mark for these products, cannot serve as evidence of genuine use of the mark for them or as a proper reason for non-use.

Moreover, the EUTM proprietor argues that the promotional leaflets of food retailers demonstrate use of the contested mark in relation to the services in Class 35. However, there is no indication that the mark was used to provide services registered in Class 35 to third parties. The fact that the EUTM proprietor or his licensee sell or distribute their own products under the contested mark is not provision of services in Class 35. This type of activity is included in the registration of the respective goods. Likewise, inclusion of products under the contested mark in a retail store’s promotional leaflet is not a service provided under the contested mark by the owner of the contested mark or his licensee. It is rather a service of promotion that the retailer provides to the producers of the advertised goods under its mark (Globus, Norma, Penny Market etc.) as part of its retail services. Consequently, it must be concluded that it was not demonstrated that the mark was used in relation to any of the registered services.

In view of the above, the mark must be revoked, pursuant to Article 58(1)(a) EUTMR, for the following goods and services:

Class 29: Sterilized, pickled and preserved vegetables (except pickled cucumbers), sterilized and pickled mixtures and salads, compotes and fruit sauces, tomato purée.

Class 31: Fresh fruits and vegetables, in particular cucumbers.

Class 35: Acquisition, marketing, sales promotion, business information and advertising, distribution of goods for advertising purposes, in particular for the sale of the Znojmo cucumber.

It appears from the evidence that the mark was genuinely used for pickled gherkins (cucumbers). Most of the dated evidence refers to the relevant time period. The mark was used in the Czech Republic (as can be inferred from the language of the documents, addresses in the invoices and prices in Czech crowns) and, therefore, within the relevant territory. It was used directly on the goods as a trade mark and in the form that does not alter its distinctive character (the addition of colours to the black and white registered version does not alter the mark’s distinctiveness). As regards the extent of use, the limited territorial extend restricted to the Czech Republic is compensated by the regularity and frequency of use, which lasted throughout the entire relevant period, and was rather significant concerning volumes and intensity. The lists of clients and the sales figures show hundreds of thousands of products sold each year and although these documents originate from the EUTM proprietor himself (or his licensee), they are supported by invoices. Overall, the evidence as a whole is sufficient to demonstrate that the contested mark was genuinely used, in the relevant time and territory, for pickled cucumbers, and the application for revocation is not successful as regards these goods, pursuant to Article 58(1)(a) EUTMR.

Therefore, the assessment of the revocation request will continue as regards Article 58(1)(c) EUTMR, as far as pickled cucumbers are concerned.

Article 58(1)(c) EUTMR – USE LIABLE TO MISLEAD THE PUBLIC

According to Article 58(1)(c) EUTMR, the rights of the proprietor of the European Union trade mark will be revoked on application to the Office, if, in consequence of the use made of the trade mark by the proprietor of the trade mark or with his consent in respect of the goods or services for which it is registered, the trade mark is liable to mislead the public, particularly as to the nature, quality or geographical origin of those goods or services. 

The contested mark contains the text ‘Tradični klasická Znojemská okurka’, which is the Czech equivalent of ‘Traditional classic Znojmo cucumber/gherkin’. Because of its size, the visually dominant part of these words is the expression ‘Znojemská okurka’ / ‘Znojmo cucumber/gherkin’. Znojmo is a town in south-east Czech Republic known, at least in the Czech Republic, for pickled gherkins. This well-known fact (also supported by the documents submitted by the applicant such as the websites containing information about the history of gherkins in Znojmo and the yearly gherkin festival) is not disputed by any of the parties. The issue of dispute is, whether or not the name of Znojmo gherkin became generic for the specific method of pickling the gherkins. The applicant argues that consumers perceive the name ‘Znojmo gherkin’ as an indication that the product originated in Znojmo, whereas the EUTM proprietor claims that consumers assume that ‘Znojmo gherkin’ is an indication of the fact that the gherkins where pickled according to the traditional recipe used in Znojmo, regardless of whether or not the gherkins themselves were grown or pickled in the region of Znojmo.

The relevant public to be taken into account for the possible misleading use is the Czech-speaking public, as the mark contains text in Czech. The relevant public for the products involved, pickled cucumbers, is the public at large, who will pay average or even lower than average degree of attention when purchasing the goods in question, as they are inexpensive goods of everyday consumption.

As a preliminary remark, the Cancellation Division notes that although both parties dedicated quite some argumentation effort into the matter of the PDO ‘Znojemské okurky’, the present revocation action is not based on a potential conflict of the contested mark with a protected designation of origin or geographical indication, a matter that would be a possible ground for invalidity pursuant to Article 59(1)(a) EUTMR in conjunction with Article 7(1)(j) EUTMR. The present application is based on revocation and its subject matter pursuant to Article 58(1)(c) EUTMR concerns exclusively the question of whether or not the contested mark is liable to mislead the public as a consequence of the use made of it by the EUTM proprietor or with his consent.

The misleading effect of a trade mark must be assessed on the basis of the message that the trade mark itself conveys to the public. A trade mark composed of, or containing, a geographical indication will as a rule be perceived by the relevant public as a reference to the place from where the goods originate. The only exception to that rule is where the relationship between the geographical name and the products is manifestly so fanciful (for example, because the place is unknown, and unlikely to become known, to the public as the origin of the goods) that consumers will not establish such a connection (12/02/2009, R 697/2008-1, MÖVENPICK OF SWITZERLAND, § 17).

 

This exception is not applicable for the present case. As stated above, the fact that Znojmo is known, in the Czech Republic, for pickled gherkins, is not disputed. However, the EUTM proprietor claims that the expression ‘Znojmo gherkin’ will not be perceived by the consumers as an indication of geographical origin but as an indication of a type of product, namely the type of pickle sauce (brine). He submitted an excerpt from Wikipedia and several other websites, which contain recipes for pickling gherkins.

According to Wikipedia, pickled gherkins are also known in the Czech Republic as Znojmo gherkins. The rest of the websites submitted by the EUTM proprietor contain recipes for pickling of gherkins, the recipes being for ‘Znojmo gherkins’. Some of them also contain chat forums where users evaluate the recipes. In the chat forums, there are also references to other pickling brines, opinions, tips and tricks for pickling are shared and vivid discussions are carried out as to which ingredients should be put in pickled gherkins and what are the ingredients for the original Znojmo pickles. The Cancellation Division notes that the Wikipedia excerpt contradicts the recipe articles, when it states that pickled gherkins are synonymous, in the Czech Republic, to Znojmo gherkins. This appears to be a rather inaccurate statement, to say the least, given that it is clear from the remaining website excerpts that there is an ongoing discussion as to what ingredients are put in the Znojmo gherkins and that not all pickled gherkins are Znojmo gherkins. This casts serious doubts on the probative weight of the Wikipedia article, the starting point of which is already lowered by the fact that Wikipedia articles, in particular those without quoted sources, can be rather easily modified and lack thorough verification, as is even expressly noted in the particular article about ‘nakládané okurky’ by Wikipedia. There is a warning that the article does not contain sufficient quotes of sources and may contain information that need to be verified.

As regards the recipes and chat forums, it appears that by sharing and discussing recipes for Znojmo gherkins, people are trying to imitate the brine traditionally used in pickles made in Znojmo. The EUTM proprietor may be correct in that certain consumers, in particular pickling enthusiasts and those who make their own pickled gherkins, consider that the traditional gherkins made in Znojmo used a specific recipe (the exact ingredients of which are not a matter of universal agreement). This, however, does not exclude the perception that ‘Znojmo gherkins’ are made in Znojmo region. The EUTM proprietor seems to ignore the possibility that consumers consider ‘Znojmo gherkins’ to be both from Znojmo and pickled according to a specific recipe. The Cancellation Division considers that this is in fact the most likely perception, in particular regarding industrially made products acquired in retail (as opposed to home made products), which are expected to contain accurate and reliable information on their labels. Moreover, the majority of the consumers who are average consumers of pickled gherkins but not enthusiasts of pickling and do not pickle gherkins themselves at home, may not know about the subtle differences in brines and merely make the logical assumption that gherkins labelled as ‘Znojmo gherkins’ originate from Znojmo or its surrounding region. To conclude, the documents submitted by the EUTM proprietor, while being indicative as regards the perception of a certain community of consumers concerning the brine used for pickling gherkins in Znojmo, do not demonstrate that average consumers do not assume that the contested mark indicates geographical origin of the goods that it labels.

The above conclusion is strongly supported by the document that has the highest probative value from all the documents in the file and that was submitted by the EUTM proprietor himself, the decision of SZPI of 14/07/2017. According to the decision, the label registered as the contested mark is liable to mislead consumers, if the products are not made in Znojmo, and the EUTM proprietor’s licensee is ordered to add information about the real place of origin of the products, and locate this information in the immediate vicinity of the trade mark and in size at least as large as the words ‘Traditional Classic’. The decision is absolutely clear on that without the addendum informing about the real place of origin of the product, the trade mark could mislead an average consumer who is reasonably informed, attentive and circumspect, as regards the place of origin of the products labelled with the mark. The Czech authority considered that consumers could assume, upon seeing the mark, that the products were manufactured in Znojmo. The Czech Agricultural and Food Inspection Authority is the Czech national authority competent to assess such matters and the Cancellation Division sees absolutely no reason to not follow its opinion regarding the perception of the Czech average consumers.

The EUTM proprietor does not argue that the products are manufactured in Znojmo or its surroundings. It argues that by fulfilling the order given by the decision of the SZPI the mark can no longer mislead the public as the label of the products now states that they were produced in Tábor (a town in south-west Czech Republic). However, this indication is not part of the trade mark. The packaging, as a whole, may not be misleading, but the trade mark is (12/02/2009, R 697/2008-1, MÖVENPICK OF SWITZERLAND, § 19).

In order to avoid revocation the EUTM proprietor should have made the manufacturing location of the contested goods coincide with the town or region named in the EUTM: it should have moved the production site from Tábor to the Znojmo area. In order to avert the revocation of an EUTM on grounds of geographically misleading use, it is necessary to demonstrate that the EUTM, as it is registered, no longer misleads the public (12/02/2009, R 697/2008-1, MÖVENPICK OF SWITZERLAND, § 23 and 25).

Since the mark was used, with the EUTM proprietor’s consent, in a manner that makes the trade mark liable to mislead average consumers in the Czech Republic as regards the geographical origin of the goods for which it has been used, namely pickled cucumbers, it must be revoked for these goods pursuant to Article 58(1)(c) EUTMR.

CONCLUSION

As seen above, the application for revocation is totally successful, partly based on Article 58(1)(a) EUTMR and partly based on Article 58(1)(c) EUTMR. The contested trade mark must be revoked for all the contested goods and services.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as from 20/11/2019. 

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(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. In the present case, the applicant did not appoint a professional representative within the meaning of Article 120 EUTMR and, therefore, it did not incur representation costs.

 

 

The Cancellation Division

 

Elena NICOLÁS GÓMEZ

Michaela SIMANDLOVA

Martin LENZ

 

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.