CANCELLATION No 35 267 C (REVOCATION)

All Nuts s.r.l., Str. Lanternci nr. 89, Sector 2, Bucharest, Romania (applicant), represented by Paula Adriana Acsinte, 17, Decebal, BL S16 Entrance 2 Floor AP 30 Sector 3, 030964 Bucharest, Romania (professional representative)

a g a i n s t

Velikov & Co OOD, Han Krum Str., No.7, 7060 Slivo pole, Bulgaria (EUTM proprietor), represented by IP Consulting Ltd., 6-8, Mitropolit Kiril Vidinski Str., entr. 8, floor 2, office 2, 1164 Sofia, Bulgaria (professional representative).

On 02/04/2020, the Cancellation Division takes the following

DECISION

1. The application for revocation is partially upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 7 562 408 are revoked as from 17/05/2019 for some of the contested goods, namely:

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked vegetables; eggs; including potato chips and crisps, dried vegetables.

Class 30: Sugar, rice, tapioca, sago; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices.

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables (except nuts); seeds (except for human consumption), natural plants and flowers; foodstuffs for animals; malt; including maize, sesame, coconuts, fresh vegetables, fresh fruit (except nuts).

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

Class 29: Preserved, dried and cooked fruits; including prepared nuts, almonds, peanuts, dates, raisins, fruit chips, roasted nuts, processed nuts, edible nuts, mixtures of fruits and nuts.

Class 31: Fresh nuts; seeds for human consumption; including nuts [fruits], almonds, hazelnuts, peanuts.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 7 562 408 ‘SOLEI’ (word mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; eggs; including prepared nuts, almonds, peanuts, dates, raisins, fruit chips, potato chips and crisps, dried vegetables.

Class 30: Sugar, rice, tapioca, sago; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices.

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals; malt; including nuts [fruits], almonds, hazelnuts, peanuts, maize, sesame, coconuts, fresh vegetables, fresh fruit.

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

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant filed a request for revocation on 17/05/2019 on the grounds that the contested EUTM has not been put to genuine use in the EU for a continuous period of five years in relation to all the goods for which it is registered. The applicant also explains that the EUTM proprietor filed an infringement action against it before the Bucharest Tribunal (docket no.44871312018) and that it filed a counterclaim for revocation of the contested EUTM. On 01/04/2019, the Bucharest Tribunal decided that the applicant must also file the application for revocation at the EUIPO, pursuant to Article 128(7) EUTMR, setting a time-limit to that effect (01/06/2019). Consequently, in compliance with that and within the respective term, the applicant filed the present request for revocation. The applicant attached the summons for the next hearing by the Bucharest Tribunal.

The Office notified the parties of the admissibility of the application for revocation on 30/05/2019 and set a time limit for the EUTM proprietor to submit evidence as proof of use until 04/08/2019. In addition, on 08/08/2019 the Office performed the respective recordal entry in the EUTM Register and duly informed the parties and the Bucharest Tribunal thereof.

The EUTM proprietor filed observations and evidence of use on 04/08/2019 (Annexes 1 to 16, listed below). It also refers to evidence submitted in other proceedings before the Office on 28/06/2018 (Annexes 1a to 4a, listed below). The EUTM proprietor gives some information as to the background of the case and the history of the relations between the parties. It claims that the mark has been used in Bulgaria, Romania and Greece in relation to different prepared and raw nuts and seeds for human consumption and nut type of snacks, including nuts with coating; raw almonds, cashew, hazelnuts, cranberries and raisins; dried fruits, such as apricots, raisins, figs; and, sweet snacks, such as choco-peanuts (peanuts coated with chocolate). Then, the EUTM proprietor provides a detailed explanation of each of the pieces of evidence filed, consisting, in the main, of invoices, advertising material and catalogues. The EUTM proprietor concludes that the revocation application should be rejected as unfounded.

Outline of the proceedings

As mentioned above, on 30/05/2019 the Office notified the parties of the admissibility of the application for revocation and set a time limit for the EUTM proprietor to submit evidence as proof of use until 04/08/2019. On 04/08/2019, the EUTM proprietor submitted observations in reply, evidence as proof of use, as well a request for extension of the time for submitting documents. On 05/08/2019 the Office sent a notification to the parties informing them that the time limit set for the EUTM proprietor to submit evidence of use was extended until 04/10/2019. On 20/08/2019 the Office forwarded to the applicant the evidence of use submitted by the proprietor on 04/08/2019 and informed the parties that the applicant had a term until 25/10/2019 to submit observations in reply if it wishes. In the absence of any further evidence or observations on the part of the EUTM proprietor and in the absence of any observations on the part of the applicant within the respective time limits, the Office informed the parties on 30/10/2019 that it will proceed to rule on the application on the basis of the evidence filed before it.

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, 43).

When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 38). However, the purpose of the provision requiring that the earlier mark must have been genuinely used ‘is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks’ (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 38).

According to 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 09/10/2009. The revocation request was filed on 17/05/2019. 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 17/05/2014 to 16/05/2019 inclusive, for the contested goods listed in the section ‘Reasons’ above.

On 04/08/2019 the EUTM proprietor submitted evidence as proof of use. In addition, the EUTM proprietor referred to evidence submitted in other proceedings before the Office, namely on 28/06/2018, which was correctly identified and duly forwarded to the applicant:

The evidence consists of the following:

Evidence of 04/08/2019

• Annex 1: Sixteen invoices and the corresponding sixteen international consignment notes showing the sale of ‘SOLEI’ products by the EUTM proprietor to a distributor in Romania in 2014. The goods itemised are pumpkin and sunflower seeds.

• Annex 2: Twenty-four invoices and the corresponding twenty-four international consignment notes showing the sale of ‘SOLEI’ goods (pumpkin and sunflower seeds, peanuts, beer peanuts) by the EUTM proprietor to a distributor in Romania in 2015.

• Annex 3: Twenty-four invoices and the corresponding twenty-four international consignment notes showing the sale of ‘SOLEI’ goods (pumpkin and sunflower seeds, peanuts) by the EUTM proprietor to a distributor in Romania in 2016.

• Annex 4: Twenty-four invoices and the corresponding twenty-four international consignment notes showing the sale of ‘SOLEI’ pumpkin and sunflower seeds by the EUTM proprietor to a distributor in Romania in 2017.

• Annex 5: Twenty-four invoices and the corresponding twenty-four international consignment notes showing the sale of ‘SOLEI’ goods (pumpkin and sunflower seeds, peanuts) seeds by the EUTM proprietor to a distributor in Romania in 2018.

• Annex 6: Ten invoices and the corresponding ten international consignment notes showing the sale of ‘SOLEI’ pumpkin seeds, sunflower seeds and peanuts by the EUTM proprietor to a distributor in Romania in 2019.

• Annex 7: Invoice dated 20/06/2019 for the purchase of 5200 kg of ‘SOLEI’ packages by the EUTM proprietor. The EUTM proprietor explains that this is equal to 5,2 million packages and that on an annual basis it purchases around 50 tons of packages, which is equal to 50 million packages used per year. The annex also includes photographs of shipments of actual ‘SOLEI’ packages to the EUTM proprietor referring to, e.g. 18/12/2019 and 25/05/2019.

• Annex 8: Price lists and offers dated in the period 2013 – 2019, in English and Bulgarian, in relation to ‘SOLEI’ products (such as pumpkin seeds, sunflower seeds, peanuts, mixtures of nuts and/or dried fruits, almonds, cashew, hazelnut, choco-nuts, dried fruits).

• Annex 9: Pictures of ‘SOLEI’ goods as they appear on stands in Kaufland, Romania.

• Annex 10: Twenty-one files containing advertising material referring to 2016, including invoices issued by different companies to the EUTM proprietor in relation to advertising services as well as samples/pictures of ‘SOLEI’ advertisements, billboards, merchandising materials, etc.

• Annex 11: Fourteen files containing advertising material referring to 2017, including invoices issued to the EUTM proprietor in relation advertising services as well as samples/pictures of ‘SOLEI’ advertisements, posters, merchandising materials, etc.

• Annexes 12, 13: Fourteen files containing advertising material referring to 2018 and 2019, including invoices issued to the EUTM proprietor in relation advertising services as well as samples/pictures of ‘SOLEI’ advertisements, posters, stickers, labels, merchandising materials, etc.

• Annex 14: Extracts from the EUTM proprietor’s company website www.solei.bg obtained through the Wayback machine. The extracts show images of various ‘SOLEI’ goods (nuts, such as almonds, peanuts, cashew, sunflower seeds, pumpkin seeds, dried fruit such as dates, prunes, figs, apricots, etc.) and refer to the period 2016 - 2019.

• Annex 15: Products catalogue in Bulgarian, Romanian and English. The catalogue showing a brief history of the EUTM proprietor’s company and various ‘SOLEI’ goods, such as different types of roasted and raw nuts (almonds, cashew, hazelnuts, chickpeas, brazil nuts, etc.), pumpkin and sunflower seeds, choco peanuts, dried fruit (cranberries, raisins) and mixes thereof.

• Annex 16: Printout from www.solei.bg showing various ‘SOLEI’ products as appearing on the company website.

In addition the EUTM proprietor enclosed:

- Decision establishing the bad faith of ‘ALL NUTS’ in Romania and a translation in English;

- Decision of the Romanian patent office rejecting the ‘SOLEI’ mark applied for by ‘ALL NUTS’.

Evidence of 28/06/2018

• Annex 1a: Offers dated 2013, 2014, 2015 and 2016 for ‘SOLEI’ products (such as pumpkin seeds, sunflower seeds, peanuts, almonds, cashew, hazelnuts).

• Annex 2a: Pictures of ‘SOLEI’ packaging.

• Annex 3a: Pictures of ‘SOLEI’ advertising materials, such as merchandising goods (hats, bags, t-shirts, mugs, pens, etc.), bags, season’s greetings card, stalls, calendars and a sponsorship banner.

• Annex 4a: Invoices and customs documents itemising the sale of ‘SOLEI’ goods throughout the period 2012 to 2018 (several invoices per year) to clients in Spain, and Romania.

Assessment of genuine use – factors

Time of use

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

While there is some evidence that is dated before and slightly after the relevant period, the majority and a sufficient amount of the documents fall within the relevant period of time. The Cancellation Division, therefore, considers that the requirements in this respect have been met and there are sufficient indications concerning the time of use.

Place of use

The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 18(1) EUTMR and Article 58(1)(a) EUTMR).

The invoices, price lists and advertising materials show that the place of use is several Member States of the European Union, in particular Romania, Bulgaria and Spain. This can be inferred from the language of the documents (Bulgarian, Romanian), the currency mentioned (EUR, BGN, Romanian Lei) and the addresses indicated. Consequently, taking into account the relevant circumstances of the case, the characteristics of the market and the territorial extent, it is considered that the evidence is sufficient to satisfy the European requirements or standards for genuine use. Therefore, the evidence relates to the relevant territory.

Nature of use: use as a trade mark

Nature of use requires, inter alia, that the contested European Union trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers.

In the present case, the evidence shows that the contested EUTM was used as a trade mark. The evidence filed by the EUTM proprietor shows a link between the goods in question and the use of the mark and that the EUTM was used in accordance with its essential function, which is to guarantee the commercial origin of the goods for which it is registered.

Nature of use: use of the mark as registered

‘Nature of use’ in the context of Article 10(3) EUTMDR further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 18(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.

The purpose of Article 18(1)(a) EUTMR, which avoids imposing strict conformity between the form in which the trade mark is used and the form in which it was registered, is to allow its proprietor, when exploiting it commercially, to vary it in such a way that, without altering its distinctive character, enables it to be better adapted to the marketing and promotion requirements of the goods or services concerned (23/02/2006, T‑194/03, Bainbridge, EU:T:2006:65, § 50).

In the present case, the registered mark is the word mark ‘SOLEI’. The evidence shows uses of ‘Solei’ and also of , , , for example. The Cancellation Division considers that all these variations do not alter the distinctive character of the mark, since the inherently distinctive word element ‘SOLEI’ is clearly legible and prominently shown, written in a fairly standard font. The addition of some figurative elements such as colours, image of a sun and the red background are not particularly striking or are purely decorative elements that appear commonly on packages and do not divert the attention from the most central and dominant verbal element. As to the use of additions, such as ‘печени ядки’ (roasted nuts), ‘sunflower seeds’, ‘peanuts’, ‘almonds’, etc. these words obviously indicate the nature of the goods and are non-distinctive and do not alter the distinctive character of the registered trade mark.

Therefore, although the use of the contested mark varies at times, this does not affect its distinctive character. Consequently the evidence gives sufficient indications of the use of the mark as registered or in a form essentially the same as that registered and, therefore, constitutes use of the contested EUTM under Article 18(1)(a) EUTMR.

Extent of use

Concerning extent of use, it is settled case-law that account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (e.g. 08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35).

The Court has held that ‘[u]se of the mark need not … always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or service concerned on the corresponding market’ (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 39).

The assessment of genuine use entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use.

The Cancellation Division is of the opinion that for part of the contested goods for which the EUTM is registered, the pieces of evidence (such as the invoices, price lists and offers, advertising materials, product catalogue and extracts from the proprietor’s website), viewed in their entirety and in combination with each other, give sufficient information regarding the extent of use of the mark. Although there are no direct sales documents such as invoices in relation to some of the goods (e.g. dried fruits), there are sufficient indications in the evidence that these goods were advertised and offered for sale regularly and throughout the whole period. The Court has found that, under certain circumstances, even circumstantial evidence such as catalogues featuring the trade mark, while not providing direct information on turnover, can also be sufficient for proving extent of use in an overall assessment (08/07/2010, T 30/09, Peerstorm, EU:T:2010:298, § 42 et seq.). The evidence shows that the EUTM proprietor has used the mark publicly and outwardly; it offered, promoted and/or sold the relevant goods uninterruptedly throughout the relevant period and in the territory of several Member States.

Consequently, the Cancellation Division considers that the evidence gives sufficient information regarding the extent of use of the mark. However, this conclusion applies only in relation to part of the registered goods (see next section).

Use in relation to the registered goods

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 various goods in Classes 29, 30 and 31. However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the contested goods.

According to Article 58(2) EUTMR, where there are grounds for revocation for only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods and services only.

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

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

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

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

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

An interpretation of the wording of the list of goods is required to determine the scope of protection of these goods. As to the term ‘including’, used in the proprietor’s list of goods, it is noted that it indicates that the specific goods are only examples of items included in the category and that protection is not restricted to them. In other words, it introduces a non-exhaustive list of examples (09/04/2003, T‑224/01, Nu‑Tride, EU:T:2003:107). In addition, in the present case, the use of a semi-colon before the term ‘including’ means that the list of examples that follow may be attributed to refer to all the preceding goods in the list (on the use of punctuation in the list of goods see EUIPO’s Trade mark Guidelines, Part B, Examination, Section 3, Classification, 4 Building a list of goods and services, paragraph 4.1.5 Punctuation and 5 Examination procedure, paragraph 5.3.2 Amendment and restriction of a list of goods and services, Examples).

Use for the goods in Class 29

The contested EUTM is registered for Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; eggs; including prepared nuts, almonds, peanuts, dates, raisins, fruit chips, potato chips and crisps, dried vegetables.

The evidence shows that the mark was used in relation to different prepared/processed nuts and seeds, dried fruit and mixtures thereof, such as: pumpkin seeds, sunflower seeds, peanuts, almonds, cashew, hazelnut, prunes, raisins, dried figs, dried apricots, dried dates, mixtures of fruits and nuts, etc.

The Cancellation Division finds that sufficient evidence was filed to prove the use of the EUTM for the following registered goods (both broad categories and individually listed goods): preserved, dried and cooked fruits; including prepared nuts, almonds, peanuts, dates, raisins, fruit chips. Although some of these goods are broadly defined (e.g. preserved and cooked fruits) and include fruits that are not merely roasted and/or salted or with a sweet-and-salty glazing, account is taken of the fact that the evidence shows use for a wide spectrum and variety of goods. The EUTM proprietor is not expected to prove use in relation to all conceivable variations of the goods concerned by the registration. This is also, in order to respect the legitimate interest of the proprietor in being able in the future to extend its range of goods, as reflected in the above-cited Aladin judgement.

Furthermore, as seen from the evidence the mark was used for a wide variety of prepared and processed edible nuts, dried fruits and mixtures of fruits and nuts, which are not explicitly listed as individual examples of items after the term ‘including’. However, bearing in mind the evidence on file and in order to better reflect the specific categories of goods for which use of the mark has been demonstrated, the Cancellation Division considers that use is also shown for the following goods: roasted nuts, processed nuts, edible nuts, mixtures of fruits and nuts pertaining to the category preserved, dried and cooked fruits.

In relation to the remaining goods in this Class, namely: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked vegetables; eggs; including potato chips and crisps, dried vegetables, the EUTM proprietor did not submit any evidence of use or any proper reasons for non-use of the contested EUTM.

Use for the goods in Class 31

The evidence shows that, apart from processed nuts which belong to Class 29, the EUTM proprietor also offers raw nuts such as raw cashew, raw almonds, raw peanuts. These goods belong to the category fresh fruit(s), which is fairly broad (e.g. it includes citrus fruits, wild fruits, stone fruits, nut fruits, etc.) and can be further subdivided into fresh nuts. Therefore, it is considered that the evidence shows use of fresh nuts. It is also considered that use is shown for the following individually listed goods: including nuts [fruits], almonds, hazelnuts, peanuts.

In addition, the evidence shows that the proprietor offers raw seeds for human consumption, such as sunflower seeds. These goods belong to the broad category seeds, which includes mostly those seeds used for planting, but can also include completely unprocessed seeds intended for human consumption. As the EUTM proprietor is not required to prove use in relation to all the conceivable variations of the categories of goods for which the contested mark is registered, it is considered that use is proven for seeds for human consumption.

Agricultural, horticultural and forestry products and grains not included in other classes in Class 31 encompass very broad categories of goods that include, amongst many others, the proprietor’s goods raw nuts and seeds. However, use for the EUTM proprietor’s raw nuts and seeds was already acknowledged through the sub-categories fresh nuts and seeds for human consumption and, therefore, the Cancellation Division considers that it is unjustified to retain the term Agricultural, horticultural and forestry products and grains not included in other classes in the list of goods for which the mark is used. In relation to the remaining goods in this Class, namely: live animals; fresh vegetables; natural plants and flowers; foodstuffs for animals; malt; including maize, sesame, coconuts, fresh vegetables, the EUTM proprietor did not submit any evidence of use or any proper reasons for non-use of the contested EUTM.

Use for the goods in Class 30

The EUTM proprietor did not submit any evidence of use or proper reasons for non-use of the contested trade mark in relation to any of the registered goods in Class 30. Indeed, the evidence shows that the EUTM proprietor also offered chocolate coated nuts that belong to Class 30. However, the contested mark is registered for Sugar, rice, tapioca, sago; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices. The goods for which the mark has been used do not fall within any of these categories in Class 30, for which the earlier mark is registered. Hence, the EUTM proprietor has not shown use for the goods for which the mark is registered in Class 30, but for others for which it has no protection. Therefore, the EUTM proprietor failed to submit any evidence of use in relation to any of the registered goods in Class 30.

Overall assessment and conclusion

In order to examine, in a given case, whether use of the contested mark is genuine, an overall assessment must be made taking account of all the relevant factors in the particular case. That assessment implies a certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under that trade mark may be compensated for by high intensity of use or a certain constancy regarding the time of use of that trade mark or vice versa (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 36).

In the present case, the Cancellation Division considers that genuine use of the contested mark has been sufficiently demonstrated for the relevant factors time, place, extent and nature of use for some of the contested goods in Classes 29 and 31 for which the mark is currently registered, namely:

Class 29: Preserved, dried and cooked fruits; including prepared nuts, almonds, peanuts, dates, raisins, fruit chips, roasted nuts, processed nuts, edible nuts, mixtures of fruits and nuts.

Class 31: Fresh nuts; seeds for human consumption; including nuts [fruits], almonds, hazelnuts, peanuts.

Therefore, the EU trade mark registration remains registered for the abovementioned contested goods and the application for revocation is not successful in this respect.

However, the evidence submitted is insufficient to prove genuine use of the contested EUTM in relation to the remaining contested goods, for which it must, therefore, be revoked, namely the following:

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried and cooked vegetables; eggs; including potato chips and crisps, dried vegetables.

Class 30: Sugar, rice, tapioca, sago; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices.

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables (except nuts); seeds (except for human consumption), natural plants and flowers; foodstuffs for animals; malt; including maize, sesame, coconuts, fresh vegetables, fresh fruit (except nuts).

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 17/05/2019.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Cancellation Division

Plamen IVANOV

Liliya YORDANOVA

Michaela SIMANDLOVA

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.