CANCELLATION No 20 123 C (REVOCATION)

Harboes Bryggeri A/S, Spegerborgvej 34, 4230 Skælskør, Denmark (applicant), represented by Patrade A/S, Ceresbyen 75, 8000 Aarhus C, Denmark (professional representative)

a g a i n s t

Michael Behr, Sophie Cahn Str. 3, 55122 Mainz, Germany (EUTM proprietor), represented by Dietrich Bezzenberger, Querstr. 4, 60322 Frankfurt am Main, Germany (professional representative).

On 25/10/2018, the Cancellation Division takes the following

DECISION

1. The application for revocation is rejected as inadmissible.

2. The fee for the application for revocation will not be refunded.

REASONS

The applicant filed an application for revocation of European Union trade mark No 8 921 901, ‘BerryBear’ (word mark), hereinafter the EUTM. The application is directed against all the goods covered by the EUTM.

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

GROUNDS FOR THE DECISION

The EUTMR only foresees the possibility of filing an application for revocation against a registered EUTM, and not against one that has already ceased to be registered.

On 27/02/2018, the applicant filed an application for revocation. However, on that date the contested EUTM had already ceased to exist, since it was surrendered on 25/01/2018.

Therefore, the application must be rejected as inadmissible.

REVOCATION FEE

The fee for the application for revocation is due for filing the application, regardless of the outcome of the proceedings. Therefore, in cases of inadmissibility, it is not refunded to the applicant. The only provision that allows for the refund of the cancellation fee is Article 15(1) EUTMDR, applicable only where the application is deemed, as a result of late payment, not to have been filed.

Therefore, in the present case, the fee for the application for revocation will not be refunded.

The Cancellation Division

Arkadiusz GORNY

Cindy BAREL

Ana MUÑÍZ RODRÍGUEZ

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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.