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CANCELLATION DIVISION |
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CANCELLATION No 41 360 C (REVOCATION)
Valsoia S.p.A., Via Ilio Barontini 16/5, 40138 Bologna, Italy (applicant), represented by Perani & Partners S.p.A., Piazza Armando Diaz 7, 20123 Milano, Italy (professional representative)
a g a i n s t
Robert Klingel oHG, Sachsenstr. 23, 75177 Pforzheim, Germany (EUTM proprietor), represented by Dipl.-Ing. Dr.techn. Waldemar Leitner, Zerrennerstrasse 23-25, 75172 Pforzheim, Germany (professional representative).
On 06/11/2020, 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 9 015 215 are revoked in their entirety as from 12/02/2020.
3. The EUTM proprietor bears the costs, fixed at EUR 1 080.
REASONS
The applicant filed a request for revocation of European Union trade mark No 9 015 215 'wellsana' (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:
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Class 3: |
Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps, shaving soaps; perfumery, essential oils; scents for air conditioning apparatus, air purifying apparatus and air humidifiers; cosmetics, in particular creams, gels, deodorants, sun milk, cleansing milk, body lotions, face masks, hair and shower shampoos, foam baths; hair lotions, aftershave; dentifrices, in particular for false teeth; hand care preparations; foot care preparations, in particular nail oils, foot bath salts, foot lotions, foot baths, foot creams; preparations for finger and nail care; parts and fittings for the aforesaid goods, included in class 3.
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Class 5: |
Pharmaceutical, veterinary and sanitary preparations, in particular hand and foot care preparations for medical and therapeutic purposes; hygienic articles for health and sanitary purposes; dietetic substances adapted for medical and therapeutic use, dietetic substances, not adapted for medical use, with a base of food vitamins, minerals, trace elements, in particular in the form of dietetic foodstuffs; health food; food for babies; plasters, in particular plasters with permanent magnetic films, materials for dressings, bandages, in particular elbow bandages, neck bandages, back bandages; incontinence linings; clothing for incontinents; napkins and pads for incontinents; sanitary pants, sanitary towels and panty liners, both of paper and cellulose, including of textile material; material for stopping teeth, dental wax; disinfectants, in particular disinfectant creams; preparations for destroying vermin; fungicides, herbicides; parts and fittings for the aforesaid goods, included in class 5.
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Class 10: |
Surgical, medical, dental and veterinary apparatus and instruments, therapeutic apparatus and instruments; inhalers, acupuncture equipment; heated cushions, heated blankets, neck and back warmers for medical purposes; artificial limbs, eyes and teeth; cleaning equipment for medical purposes, in particular for artificial teeth, in particular including ultrasound cleaners; hand mirrors for medical and dental purposes; orthopaedic articles, in particular cushions for medical purposes, in particular including neck cushions; suture materials; massage equipment, foot massage tubs, foot baths for medical and therapeutic purposes; pressure relieving devices, in particular relieving devices of silicon; orthopaedic shoe insoles; protective gloves for medical, therapeutic and sanitary purposes; sphygmomanometers and pulse meters; bathtub mats for medical and therapeutic purposes; supports for flat feet; inner soles for medical and therapeutic purposes; parts and accessories for the aforesaid goods, included in class 10.
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Class 35: |
Advertising; business management services; business consultancy; office functions; retail and wholesale services, in particular by mail order and via the Internet, in relation to bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices, pharmaceutical and veterinary preparations, sanitary preparations for medical purposes, food for babies, plasters, materials for dressings, disinfectants, preparations for destroying vermin, fungicides, herbicides, hand tools and implements (hand-operated), scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments, apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity, apparatus for recording, transmission or reproduction of sound, images and/or information, magnetic data carriers, recording discs, automatic vending machines and mechanisms for coin-operated apparatus, cash registers, calculating machines, data processing equipment and computers, fire-extinguishing apparatus, surgical, medical, dental and veterinary apparatus and instruments, orthopaedic articles, therapeutic instruments and apparatus, other than for surgical or endoscopic purposes, inhalation apparatus, acupuncture apparatus, heated pads, heated blankets, neck and back warmers for medical purposes, artificial limbs, eyes and teeth, cleaning apparatus for medical purposes, in particular for artificial teeth, in particular including ultrasound cleaners, hand-held mirrors for medical and dental purposes, orthopaedic articles, in particular cushions for medical purposes, in particular including neck cushions, suture materials, massage apparatus, foot massage tubs, foot baths for medical and therapeutic purposes, pressure-relieving devices, in particular silicon pressure-relieving devices, orthopaedic shoe insoles, protective gloves for medical, therapeutic and sanitary purposes, sphygmomanometers and pulse meters, bath tube linings for medical and therapeutic purposes, supports for flat feet, insoles for medical and therapeutic purposes, textiles and clothing, shoes and headgear for medical and therapeutic purposes, in relation to apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes, precious metals and their alloys and goods in precious metals or coated therewith, jewellery, precious stones, horological and chronometric instruments, paper, cardboard and goods made from these materials, printed matter, book binding material, photographs, stationery, adhesives for stationery or household purposes, artists' materials, paint brushes, typewriters and office requisites (except furniture), instructional and teaching material (except apparatus), plastic materials for packaging, printers' type, printing blocks, leather and imitations of leather, and goods made of these materials, animal skins, hides, trunks and travelling bags, umbrellas, parasols and walking sticks, saddlery, furniture, mirrors, picture frames, goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, household or kitchen utensils and containers, combs and sponges, brushes (except paint brushes), brush-making materials, articles for cleaning purposes, steelwool, unworked or semi-worked glass (except glass used in building), glassware, porcelain and earthenware, textiles and textile goods, bed and table covers, in particular for allergy and rheumatism patients, carpets, rugs, mats and matting, linoleum and other materials for covering existing floors, wall hangings, games and playthings, gymnastic and sporting articles, decorations for Christmas trees, meat, fish, poultry and game, meat extracts, preserved, frozen, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats, coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee, flour and preparations made from cereals, bread, pastry and confectionery, ices, honey, treacle, yeast, baking powder, salt, mustard, vinegar, sauces (condiments), spices, ice, agricultural and forestry products and grains, fresh fruits and vegetables, seeds, natural plants and flowers, foodstuffs for animals, malt, beers, mineral and aerated waters and other non-alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages, alcoholic beverages (except beers), tobacco, smokers' articles, matches; Mail order sale services; assortment of the aforesaid goods (except the transport thereof) to facilitate the viewing and purchase of the aforesaid goods and the use of the aforesaid services by consumers; compilation of service providers, for others, to facilitate the use of the aforesaid services by consumers.
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Class 44: |
Medical services; hygienic and beauty care for human beings or animals; pharmacy services, in particular mail order pharmacy services, including via the Internet; consultancy, for others, in the medical and veterinary sector, and in the field of hygienic and beauty care.
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The applicant invoked Article 58(1)(a) EUTMR.
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.
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 29/03/2014.The revocation request was submitted on 12/02/2020. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.
On 27/02/2020, the Cancellation Division duly notified the EUTM proprietor of the application for revocation and gave it a time limit of two months to submit evidence of use of the EUTM for all the goods and services for which it is registered. This time limit was extended and finally expired on 03/09/2020.
The EUTM proprietor did not submit any observations or evidence of use in reply to the application for revocation within the specified time limit.
According to Article 19(1) EUTMDR, if the proprietor of the European Union trade mark does not submit proof of genuine use of the contested mark within the time limit set by the Office, the European Union trade mark will be revoked.
In the absence of any reply from the EUTM proprietor, there is neither any evidence that the EUTM has been genuinely used in the European Union for any of the goods and services for which it is registered nor any indications of proper reasons for non-use.
Pursuant to Article 62(1) EUTMR, the EUTM must be deemed not to have had, as from the date of the application for revocation, the effects specified in the EUTMR, to the extent that the proprietor’s rights have been revoked.
Consequently, the EUTM proprietor’s rights must be revoked in their entirety and deemed not to have had any effects as from 12/02/2020.
COSTS
According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.
Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.
According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the applicant are the cancellation fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.
The Cancellation Division
Maria José LÓPEZ BASSETS |
Alina FRUNZA |
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 submitted in writing at the Office within two months of the date of notification of this decision. It must be submitted 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 submitted 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.
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