CANCELLATION No C 38 322 (REVOCATION) 

 

Hastings Funds Management (UK) Limited, 2nd Floor, 50 St Mary Axe, London EC3A 8FR, United Kingdom (applicant), represented by Dechert LLP, 160 Queen Victoria Street, London EC4V 4QQ, United Kingdom (professional representative)

 

a g a i n s t

 

Vantage Airport Group Ltd., Suite 1410 1200 West 73rd Avenue, Vancouver British Columbia V6P 6G5, Canada (EUTM proprietor), represented by Keltie Limited, Galway Technology Centre, Mervue Business Park, Galway, Ireland (professional representative).

On 06/08/2021, 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 10 711 612 are revoked in their entirety as from 20/09/2019.
3.	The EUTM proprietor bears the costs, fixed at EUR 1 080.

 

REASONS

 

On 20/09/2019, the applicant filed a request for revocation of European Union trade mark No 10 711 612 (figurative mark) (the EUTM). The request is directed against all the services covered by the EUTM, namely:

Class 35: Advertising; business management; business administration; provision of business information; promotional services, namely advertising of goods and services of others by means of video and promotional presentations; airport administration; provision of business assistance for airport facilities.

Class 36: Real estate affairs; operation, management and leasing of space for commercial, industrial and agricultural purposes; information relating to the aforesaid services.

Class 39: Transport; packaging and storage of goods; travel arrangements; airport services; operation of airports; airport management advisory services; airport management; provision of airport information services relating to aviation; provision of information for travellers and tourists relating to the facilities, operations and services of the airport; provision of information for travellers and tourists relating to the facilities, operations and services of the airport namely information regarding air and ground transportation; provision of information for travellers and tourists relating to the facilities, operations and services of the airport, namely automobile and truck rentals; provision of sightseeing tours to individuals and groups.

Class 43: Services for providing food and drink; temporary accommodation; restaurant, bar and catering services; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; operation of licensed and unlicensed restaurants, cafeterias, snack bars, lunch counters, cocktail lounges, taverns, bars, takeout food stands; provision of information relating to the aforesaid; provision of information for travellers and tourists relating to the facilities, operations and services of the airport, namely accommodation.

Class 45: Airport security services and information relating thereto; provision of information for travellers and tourists relating to the facilities, operations and services of the airport, namely, customs and immigration.

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

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that within a continuous period of five years, the EUTM has not been put to genuine use in the EU in connection with any of the services in respect of which it is registered, and there are no proper reasons for non-use. The applicant requests that the EUTM be revoked in its entirety and the EUTM proprietor be ordered to bear the cost.

The EUTM proprietor submits the proof of use listed in the following section of this decision.

It explains that is uses the ‘VANTAGE device’ mark within the context of the investment, management and development of airports around the world. Projects associated with the airport management and development sector are significant operations and it is not uncommon for such projects to be conducted on a major scale over many years. The scale of an operation associated with airport management and development can incorporate numerous private companies, include a lengthy bidding and proposal period and by the nature of the services to be provided, include vital safety, construction and conclusion agreements that result in far longer completion phases than most commercial contracts. Therefore, construction planning and completion of projects within the context of airport management and development warrant the enhanced scope of consideration in any assessment of trade mark use (11/03/2003, C-40/01, Minimax, EU:C:2003:145, § 38).

The proprietor states that it has over 25 years of expertise in the relevant sector and has worked with over 30 airports around the world providing its services under its ‘VANTAGE’ marks with over USD $5 billion having been managed and invested in relation to airport development and construction projects including for instance the project concerning the redevelopment of LaGuardia airport in the US (§§ 7-10 of the Witness Statement).

As regards its involvement in airport infrastructure and related services in the EU since 2006 to present (§§ 14-16 of the Witness Statement), the proprietor refers to its involvement in the UK airports Liverpool John Lennon Airport, Sheffield Airport and Durham Tees Valley Airport as being of particular importance. In 2010, the proprietor became the major shareholder in that project. It offered services under its ‘VANTAGE’ marks via its affiliate, Vantage Airports UK, a co-owned partnership (Enclosure 4 Exhibit C). The proprietor was also awarded the contract to develop and operate the Larnaka and Pafos airports in Cyprus (§ 15 of the Witness Statement and Enclosure 4 Exhibit D).

By reference to a decision of the Office (23/05/2016, C 8999) the proprietor argues that the recognition and long list of awards it obtained for services provided under its ‘VANTAGE’ marks (§ 18 of the Witness Statement and Enclosure 4, Exhibits F 1-F 4) and the numerous trade shows, both in and outside the European Union, attended by the proprietor (§ 20 of the Witness Statement) should be sufficient to prove genuine use of the EUTM within the EU.

Furthermore the number of passengers transited through the EU airports in which it has provided its services as well as the scope of use of its website and the not insubstantial amount of visitors received on www.vantageairportgroup.com are indicative of the recognition and the interaction of the public with the proprietor’s ‘VANTAGE’ marks, particularly when extrapolated over the cumulative years of operation.

The proprietor adds that representatives of its company have regularly exhibited or spoken at international trade conferences, including conferences in the EU (Enclosure 4, Exhibits H to T, V).

In support of its position, the EUTM proprietor refers to two decisions of the Office which on the one hand concerned services provided within a very defined commercial avenue that were not too dissimilar to the services at issue in the present case, namely air traffic services; airport services; flight planning (Class 39) and providing of training in the field of air traffic in Class 41 (29/06/2011, B 1 705 972, SKYWATCH Air Traffic Services (fig.) and, on the other hand, held that use shown in documents and territorially limited to one country (in that case Finland), even via one partner (in that case Finnair) does not a priori disqualify the evidence in being acceptable as genuine use (24/07/2014, 8157 C, SKYCELLER).

Taking the evidence as a whole, the various pieces of evidence considered in combination with each other prove genuine use of the EUTM in the European Union during the relevant period at least for, but not limited to, airport administration; provision of business assistance for airport facilities in Class 35, operation of airports; airport management advisory services; airport management; operations and services of the airport in Class 39 and airport security services and information relating thereto in Class 45.

If this is not accepted, the proprietor claims valid and proper reasons for non-use. Airport managing and development services fall beyond the normal commercial time periods associated with most common goods or services. It is not uncommon for deadlines to be extended by many years and a completion period may extend beyond 20 years which provides an obstacle for genuine use. In this context the proprietor refers to services provided at Larnaka International Airport with a 25-year build-operate-transfer agreement.

Whilst bound by initial tendering approaches, these time delays or constraints arise wholly independently of the will of the trade mark proprietor. As such, it may then be impossible or unreasonable for a trade mark proprietor to put its respective marks to use for reasons entirely beyond its control. Therefore, the proprietor claims that there are valid reason for non-use in instances where delays have been incurred for safety or planning reasons that have arisen independently and where such use would have been impossible. In this regard, it submits that proper reasons for non-use did not have to cover the entire five-year period (13/12/2018, T-672/16, C=commodore, EU:T:2018:926). A proprietor operating in a very specialised commercial sector under significantly higher completion periods than any other industry should not be prejudiced for non-use of its trade marks based on the norms of commercial use.

The applicant replies that the submitted evidence does not prove genuine use of the EUTM. According to its own evidence, the proprietor vacated the UK market prior to the relevant period. To the extent that any of the contested services are provided in Cyprus, those services are provided by an affiliate of the proprietor that offers such services under the brand “HERMES” and not using the EUTM. This is also confirmed by the evidence supporting the awards received in respect of airports that the proprietor is allegedly involved with which does not mention the EUTM or the proprietor where it relates to the relevant period or territory.

As there is thus no evidence to suggest that passengers travelling through such airports would have seen the EUTM or that any of the relevant services were provided to such passengers by reference to the EUTM, the number of passengers that travelled through certain airports is of little relevance.

The mere presence of the EUTM on the proprietor’s website is also insufficient to establish genuine use as is the fact that representatives of the EUTM proprietor may have attended international conferences, only part of which took place in the European Union and during the relevant time period. This is particularly so where the EUTM proprietor previously indicated its intention to focus on the North American market and the sole activities with which it was allegedly involved with in the EU were carried out under a different mark. It is not apparent from the evidence what, if any, marketing activities were carried out, to whom such activities were addressed, nor what particular services were marketed. At least part of these conferences relates to the airport development and finance space and thus not to the contested services anyway. The same applies to the proprietor’s activity under the EUTM in general which relates to airport development and construction projects.

There is no indication that any revenue or business relating to the contested services in the European Union was generated under the EUTM through attendance at any conferences or otherwise. In connection with the Cyprus Airports any revenue would have been generated under the HERMES brand not the EUTM.

As regards the submitted evidence, the applicant particularly questions the probative value of the witness statement for being given by the proprietor’s own representative, containing significant inconsistencies and errors and for not being tailored to the contested services. The statement is anyway irrelevant as far as it does not relate to the relevant territory and/or time (§§ 1-12, 14), only refers to internal use between affiliates or does not concern use of the EUTM but other marks. As only example of the alleged “leading” of Hermes Airport Limited the witness statement refers to seconded employees of the proprietor occupying executive positions at Hermes Airport Limited (CEO) and COAG (managing director). This provides no information as to their position during the relevant period and having employees as directors of an affiliate is not an indication that a mark is used in any sense either (let alone publicly and outwardly). “Directorship services, provision of staff” are not among the contested services either.

Concerning the alleged reasons for non-use, the applicant argues that this was only claimed in relation to airport management and redevelopment. In any event, there is no evidence that the EUTM proprietor made any meaningful attempts to trade under the EUTM in the European Union in relation to the relevant services during the relevant period nor that any particular obstacles arose that prevented it from trading under the EUTM. An affiliate of the proprietor carries on business in the European Union under the HERMES brand and the proprietor has not provided any reason why that affiliate is unable to use the EUTM instead.

The proprietor has not provided any information as to the characteristics of the relevant market(s) for the contested services in general. Its assertions in this regard do not concern the contested services but airport construction/development. In any event, they are not supported by any evidence but apparently based on one particular project in the US (Enclosure 2) which is unlikely to be a fair representation of the EU market.

In support of its arguments, the applicant submits the following documents:

Annex 1: Extract from the Office’s database ‘TMclass’ showing various services such as construction of airports, development of ports, building project management services and construction project management services as being classified in Class 37.

Annex 2: Printout from the website www.internationalairportreview.com with information on the event GAD World 2019, particularly the date it was held (11-14/11/2019).

Annex 3: Printout from www.routesonline.com with information about the event Routes Americas 2017 held in Las Vegas, USA from 14-16/02/2017.

Annex 4: Printout from the online encyclopedia ‘Wikipedia’ showing the entry for ‘List of the busiest airports in Europe’.

The EUTM proprietor refutes all the applicant’s statements and reiterates its previous arguments. It adds that the applicant relies on case-law that relates to goods and services of general consumption, addressed to a very large section of the public that cannot be applied to the aviation industry. The sector concerned in the present case has a limited number of operators, compared to most sectors, and its own specific channels and processes for marketing and providing services. The proprietor again refers the Cancellation Division to opposition decision of 29/06/2011, B 1 705 972, SKYWATCH Air Traffic Services (fig.).

The applicant’s argument that the relevant services in Cyprus were provided under the mark HERMES and not under the EUTM disregards the specific nature of the services concerned, which are services that are not always necessarily visible to the end-user of airports or to the visitor of the website of an airport management company. However, within the consortium of companies managing the airports in Cyprus, of which the EUTM proprietor is one, it would have been very clear under which trade mark the proprietor was providing its services and, indeed, that mark is displayed on the website printout in Exhibit D to Enclosure 4. The other airport management companies also constitute a market on which the EUTM was also used.

The applicant’s arguments regarding the conferences attended by the proprietor under the EUTM are also based on the wrong premises. Aviation is not an industry that can be compared to others and conferences on aviation topics are not as many as in other industries. Attending and speaking at a conference in the EU are well-known ways to promote one’s services and intrinsically a business development activity targeting the EU market where such conferences are (also) attended by representatives of EU companies (Enclosure 4, Exhibit I). As long as such an activity is genuine and commercial, the scale of it is irrelevant. The services promoted by the proprietor at these conferences can be inferred by the subject matter of the conferences, e.g. airport investment, airport strategy, finance and management (Enclosure 4, Exhibit I).

The proprietor contests the applicant’s statement that no meaningful attempts were made at trading in the EU under the EUTM during the relevant period. It reiterates that it has attended conferences in the EU, which is a business development activity, and has operated as part of the consortium of companies running airports in Cyprus.

The proprietor also contests that leaving the UK market in 2014 or not pursuing opportunities other than in Cyprus would be grounds to deny the applicability of the ‘proper reasons’ justification. By reference to EUIPO’s Guidelines it states that the aviation is an industry where changes in strategy to overcome obstacles cannot be implemented within the shorter timeframe and may render the use of the mark unreasonable if not impossible.

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 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). 

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 07/08/2012. The revocation request was filed on 20/09/2019. 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 20/09/2014 until 19/09/2019 inclusive, for the contested services listed in the section ‘Reasons’ above.

 

On 31/01/2020 the EUTM proprietor submitted evidence as proof of use.

The evidence to be taken into account is the following:

Enclosure 2: Extract from the website https://en.wikibooks.org showing an article with the title ‘Public-Private Partnership Policy Casebook/LaGuardia Central Terminal’, last edited on 19/08/2018 which concerns the redevelopment of the US Airport ‘LaGuardia’ and particularly mentions the involvement of the Vantage Airport Group in this project.

Enclosure 3: Witness statement of the Chief Financial Officer (CFO) of the EUTM proprietor of 30/01/2020 providing, in particular, further details on the various airport development and construction projects in which the proprietor was involved, number of visitors of its website, the number of passengers transiting through the various airports in which the proprietor claims to be using the EUTM, awards received by the EUTM proprietor and events attended by the applicant promoting the EUTM or by representatives of the proprietor giving a speech or presentation relating to the airport business. The statement adds that the EUTM proprietor is continuing to evaluate different business opportunities in Europe. As airport management and redevelopment are generally large multi-year infrastructure projects, there are only a small number of potential opportunities over a 5-year period.

Enclosure 4: The following exhibits that support the witness statement in Enclosure 3:

- Exhibit A: Printout of the article Infrastructure financing takes off in the US dated 02/08/2016 and available at the website https://wholesale.banking.societegenerale.com, mentioning the redesign project of LaGuardia, one of the major airports in New York.

- Exhibit B: Copy of the article Kennedy Airport Rehab Plan Unveiled, Along With $ 13 Billion Price Tag, published in ‘The Wall Street Journal.’ on 04/10/2018 which mentions that a new $ 3 billion terminal on this US airport’s north site ‘is being financed by a joint venture between Canadian airport management company Vantage Airport Group and New York developer RXR Realty’.

- Exhibit C: Printouts of two news articles available at the website www.liverpoolairport.com, the first of which dates from January 2013 and concerns the announcement of the company ‘Vantage Airports UK’ about a change in leadership at John Lennon Airport (JLA). The article particularly mentions that ‘Vantage Airports UK is the new name for the partnership between Vantage Airport Group and The Peel Group which jointly own Liverpool John Lennon Airport. The new branding aligns the Company more closely with majority shareholder Vantage Airport Group, an industry-leading investor, developer and manager of airports around the world. The rebranding is also linked to the formation of a new subsidiary company, Vantage Air Traffic Services (Vantage ATS) which provides Air Traffic Services for Liverpool, Doncaster Sheffield and Durham Tees Valley Airports. The distinctive branding for Liverpool John Lennon Airport remains unchanged.’ The second article dates from April 2014 and announces that “The Peel Group, which previously held a 35% shareholding in Vantage Airports UK, the current owners of JLA, has reached an agreement to acquire the remaining 65% stake in the business from Vantage Airport Group” and that “Vantage now wishes to focus on projects that position the company for growth in North America and other markets.”

- Exhibit D: Extract from the ‘Who we are’ section at the website www.hermesairports.com dated 26/02/2019 which indicates that ‘Hermes Airports Ltd assumed management and control of Larnaka International Airport and Pafos International Airport on 12 May 2006, under a 25 year BOT (Build-Operate- Transfer) concession agreement with the Republic of Cyprus. Hermes is a company registered in Cyprus - an international consortium of 9 shareholders, representing a mix of Cypriot and international partners. […] The Concession Agreement includes a plan to develop both airports through construction of a new passenger terminal building at each site and other associated infrastructure, including aprons and runway extensions. This work commenced immediately, under a rapid Design and Build Contract. The new passenger terminal at Pafos opened in November 2008, and at Larnaka, opened in November 2009. The construction contract is the biggest ever undertaken in the Republic, with the Build-Operate-Transfer project being the first privatization of its kind in Cyprus.’ The proprietor is listed as one of the shareholders in Hermes Airports Ltd as follows: .

- Exhibit E: Copy of a brochure issued by Egis Airport Operation in April 2016 with information about the Larnaka and Pafos airports in Cyprus and mentioning in particular that Egis Airport Operation and its partner Vantage Airport Group have assisted Hermes Airports, via a dedicated structure, in the development and management of Larnaka and Pafos airports. A management team was assigned to enable the assimilation of existing facilities followed by an ORAT team (Operational Readiness and Airport Transfer) to organize transfer of operations in the best conditions possible to the new terminals of Pafos in 2008 and of Larnaka in 2009. Egis and Vantage are together still carrying out their role as key players in the operation of the airports, bringing the supervision and expertise necessary to develop, operate and manage both airports.’

- Exhibit F 1: Printout from the proprietor’s webpage at www.vantageairportgroup.com listing awards won by the Owner and its network of airports, the awards Transport Aviation Deal of the Year, Europe: Project Finance and Best European Project: Public Private Finance, Human Resources Excellence: Airports Council International Europe, Outstanding Achievement in Website Development: Transportation Standard of Excellence all awarded to Hermes Airports Ltd. and Accessible Airport, Europe: Airports Council International Europe awarded to Larnaka International Airport.

- Exhibit F 2: Printout from Airport Carbon Accreditation’s website at www.airportcarbonaccreditation.org showing the Cyprus Airports being accredited at level 3+ neutrality.

- Exhibit F 3: Printout of a news release dated 14/06/2017 from the European Disability Forum announcing the Larnaka airport as the winner of the 2017 Accessible Airports Award.

- Exhibit F 4: Printout of a press release issued by ACI on 20/06/2018 which according to the proprietor announces the Pafos airport as the winner of the Accessible Airport Award in 2018. However, the Pafos airport is not mentioned in the document which only states that the Accessible Airport Award was also presented at the Gala Dinner of the joint ACI World/28th ACI EUROPE General Assembly, Congress & Exhibition.

- Exhibit G: Screenshot of the website’s homepage and a printout from the proprietor’s news page at www.vantageairportgroup.com/news/ which includes an overview of news releases issued by the EUTM proprietor from March 2016 to January 2017. Three of these releases dating 12/04/2016, 22/11/2016, 26/09/2017 concern the Hermes airports in Cyprus and one to the EUTM proprietor’s Future Travel Experience (FTE) startup hub membership being announced in the UK. The remaining releases are either general announcements concerning the management of the Vantage Airport Group or relate to airports outside the European Union such as in Canada, the United States or the Bahamas.

- Exhibit H: Printout from the webpage of the organizer of the GAD Conference listing the proprietor as a co-sponsor of the GAD Americas Conference and displaying the sign .

- Exhibit I: Copies of the agendas for the Global Airport Development (GAD) Conference in 2013 and 2015, the latter being held in Amsterdam, both listing the proprietor’s president & CEO as a speaker.

- Exhibit J: Printout from the webpage of the organizer of the GAD Conferences available at listing the EUTM proprietor and other participants at the 2018 GAD World Conference, which includes attendees from the European Union such as SEA Milan Airports, Prague Airport, Munich Airport International, Marseille-Provence Airport, Hermes Airports, Copenhagen Airport etc.

- Exhibit K: Undated photos taken at a GAD Americas event where the proprietor’s CEO is speaking and showing use of the sign in the backdrop. According to the EUTM proprietor, this picture was taken at the GAD Americas event in 2018.

- Exhibit L: Screenshot which concerns a panel discussion JFK and beyond: hybrid models for a hybrid market and shows Marie-Liesse Marc, former Chief Acquisitions Officer of the EUTM proprietor as one of the two speakers. Neither date nor source are indicated on that document which according to the EUTM proprietor is a screenshot of GAD’s website and concerns the GAD World event in 2019.

- Exhibit M: Extract of an interview with the EUTM proprietor’s CEO published on 13/05/2019 and available at https://informaconnect.com. According to the proprietor the interview was shared with the attendees of GAD Americas 2019. It contains information about the expertise of the EUTM proprietor that ‘has been involved with more than 30 airports worldwide, working on a wide range of airport development, redevelopment, management and investment projects.’ The part where the proprietor’s CEO apparently talked about ‘current projects’ can be downloaded as indicated at the end of the extract but has not been provided.

- Exhibit N: Printout of an online article available at the website of the organizer of the Routes Events www.routesonline.com reproducing an interview with the EUTM proprietor’s Director, Air Service Development before he spoke at Routes Americas 2017. He mentions that the EUTM proprietor ‘has been actively involved in 30 airports, taking 20 of them from public to private management. Rather than playing a simple consultant role, Vantage is an airport operator, with a material stake in our network airports and a strong understanding of the aviation business.’ According to the interviewee the EUTM proprietor has more than two decades of deep experience in North America and Europe. In 2016 its airports together served more than 25 million passengers. According to the bar chart included in the interview most of these passengers travelled through Hermes Airports in Cyprus. Apart from that, the interview does not relate to any specific projects or developments in the European Union, but rather concerns the United States, Canada and the Caribbean.

- Exhibit O: Printout of the Routes website with the World Routes 2018’s attendee list, which includes participants from the European Union such as Aarhus Airport, aena Bilbao Airport, Aer Lingus, Aeroporto di Genova Spa, Air France, Air Malta, Albrecht Dürer Airport Nürnberg, ANA Aeroportos de Portugal, Brussels Airport, etc. .

- Exhibit P: Printout of the online article WORLD ROUTES: Vantage Airport Group Marks 20 Years of Airport Development published on 22/09/2014 and available at the Routes website and concerning the 20th anniversary celebration of the EUTM proprietor at World Routes event in 2014. The article includes comments from the EUTM proprietor’s CEO who mentions that the EUTM proprietor offers a product suite – a menu of services – that it leverages at each site and that includes, as an example, energy management. The article elaborates that ‘the costs associated with keeping terminal buildings comfortable for passengers and staff year-round is one of the top operating expenses for an airport. To help minimise these operating costs and allow airports to allocate funds to other experience-enhancing initiatives, Vantage has developed benchmarking information to set energy consumption performance targets. This enables the company to work with its airports and identify solutions for their unique needs. In Larnaka, this meant evaluating photovoltaic solar plants; …’.

- Exhibit Q: Undated photographs which, according to the witness statement, were taken during the Owner’s 20th anniversary celebration at World Routes 2014 and illustrating use of the ‘VANTAGE’ mark as follows:

.

- Exhibit R: Undated photographs taken of the proprietor’s table at an event and illustrating use of the ‘VANTAGE’ mark on a brochure placed on the table: . According to the witness statement these pictures were taken at the FTE Startup Hub Live event held in Dublin, Ireland on 02/07/2018 where the EUTM proprietor’s representatives met with European-based startup companies.

- Exhibit S: Screenshot of the website of ACI-Europe (www.aci-europe-events.com) and a photograph mentioning and showing the EUTM proprietor’s CFO as a speaker on the 29^th ACI EUROPE Annual Assembly & Congress held in Limassol, Cyprus from 25-27/06/2019 According to the witness statement, the photograph also illustrates use of the ‘VANTAGE’ mark. However, only the HERMES Airport logo is displayed at the event. The ‘VANTAGE’ mark is only displayed on the website below the EUTM proprietor’s CFO in the list of panel members: .

- Exhibit T: Three undated photographs taken of different booths of the EUTM proprietor which allegedly correspond to the booths at the events World Routes 2014, Routes Americas 2016, and Routes Americas 2017. The VANTAGE mark is prominently displayed on the booths:

- Exhibit U: Two examples of advertising material that, according to the witness statement was used by the EUTM proprietor at World Routes 2016 and World Routes 2017 and display the sign .

- Exhibit V: Three photographs: the first was taken at the Routes World event in September 2016 (visible on the screen) and showing the VANTAGE mark used on a backdrop as follows: ; the second and third pictures are undated and show the EUTM proprietor’s Director, Air Service Development at a Networking Lunch sponsored by the EUTM proprietor at a Routes Americas event and a display listing the event supports, among the following logo is shown: . According to the witness statement these two pictures were taken at the Routes Americas event in 2017.

- Exhibit W: Copy of a brochure of the EUTM proprietor provided to attendees of GAD World 2019 and prominently displaying the VANTAGE mark as follows on the cover page: . The brochure is undated but refers to the 25^th anniversary of the EUTM proprietor. The brochure includes a world map where the airports that are currently managed by the EUTM proprietor or were managed by it in the past are indicated. In Europe two airports in Cyprus are indicated as ‘current airport/airport partnership’ and 3 airports in England are indicated as ‘past airports’. The brochure contains no other reference to the EUTM proprietor’s activities in the European Union.

- Exhibit X: Copy of a brochure mentioning the Larnaka and Pafos airports in Cyprus that according to the witness statement was provided by the EUTM proprietor to attendees at the World Routes 2016 event; proof for a post-card that according to the witness statement was used by the EUTM proprietor at Routes Americas 2016 and copies of business cards used by the EUTM proprietor.

Enclosure 5: Printout of the judgment of the General Court of 13/12/2018, T-672/16, C=commodore; EU:T:2018:926 and copy of the following decisions of the Office:

 24/07/2014, 8157 C, SKYCELLAR;

 29/06/2011, B 1 705 972, SKYWATCH / and

 23/05/2016, 8999 C, EASYJET /  .

PRELIMINARY REMARKS 

As far as the witness statement (Enclosure 3) is concerned, Article 10(4) EUTMDR (applicable to cancellation proceedings by virtue of Article 19(1) EUTMDR) expressly mentions written statements referred to in Article 97(1)(f) EUTMR as admissible means of proof of use. Article 97(1)(f) EUTMR lists, as means of giving evidence, sworn or affirmed written statements or other statements that have a similar effect under the law of the State in which they were drawn up.

As the applicant submits regarding the probative value of this kind of evidence, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perceptions of a party involved in a dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all. The final outcome depends on the overall assessment of the evidence in each case as the probative value of such statements depends on whether or not they are supported by other types of evidence (labels, packaging etc.) or evidence originating from independent sources.

The applicant submits that this statement (Enclosure 3) contains discrepancies and errors that call into question the accuracy of its content. For instance, according to the witness statement, Exhibit N demonstrates that a representative of the EUTM proprietor spoke at “World Routes 2017” whereas the article says: “Ahead of his address at Routes Americas 2017, we spoke to […]”. While these are in fact small discrepancies with a view to the supporting evidence, they are not such as to cast any serious doubt on the accuracy of the content of this statement in general that could justify depriving this document of any probative value.

In view of the foregoing, the remaining evidence must be assessed in order to see whether or not the contents of the declaration are supported by the other items of evidence.

ASSESSMENT OF GENUINE USE – FACTORS

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. 

These requirements for proof of use are cumulative (05/10/2010, T-92/09, STRATEGI / Stratégies, EU:T:2010:424, § 43). This means that the EUTM proprietor is obliged not only to indicate but also to prove each of these requirements. Genuine use cannot be established and as a consequence the EUTM must be revoked if the EUTM proprietor fails to provide sufficient indications in relation to any of these factors.

Time and Place of use

The evidence must show genuine use of the contested EUTM within the relevant period and in the European Union (Article 18(1) EUTMR and Article 58(1)(a) EUTMR).

Most of the evidence dates or refers to the relevant time period although part of the evidence does not, in particular, inasmuch as it concerns the involvement of the proprietor in the operation of airports in the area of Liverpool in the UK (Enclosure 4 Exhibit C, Enclosure 3, § 14) or relates to the GAD events that took place before or after the relevant time period (part of Enclosure 4, part of Exhibit I and Exhibits L and W)).

The proprietor is a Canadian company that seems to focus its business particularly on the North American market (Enclosure 4, Exhibit C). In 2018 the proprietor submits to have been providing services at a total of 10 airports worldwide out of which only two were located in the European Union, namely Larnaka and Pafos (Enclosure 3, § 16).

Accordingly, large part of the evidence concerns the EUTM proprietor’s activities outside the European Union, e.g. relating to other airports in the US, Canada or the Caribbean or to events clearly tailored to markets other than the European Union, such as GAD Americas or Routes Americas (Enclosure 2; Enclosure 4 Exhibits A, B, H, K, L, M, N and W as well as part of Exhibits G, T, V and X).

As these documents do not shed any light on whether the mark was used in the EU during the relevant time period, the submitted evidence is only relevant inasmuch as it concerns the EUTM proprietor’s activities in the European Union in the relevant time frame, i.e. the operation of the airports in Cyprus, or activities otherwise targeting customers in the European Union e.g. at international trade fairs.

Use of the EUTM in relation to the registered services and extent of 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.

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 (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35).

The Court has held that ‘use 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).

It is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether use is genuine or not. A de minimis rule cannot therefore be laid down. When it serves a real commercial purpose, even minimal use of the mark can be sufficient to establish genuine use (27/01/2004, C-259/02, Laboratoire de la mer, EU:C:2004:50, § 25, 27).

The condition relating to genuine use of the mark requires that the mark be used publicly and outwardly for the purpose of ensuring an outlet for the goods or services which it represents (12/03/2003, T‑174/01, Silk Cocoon, EU:T:2003:68, § 39).

The EUTM proprietor claims that the EUTM has at least been used for airport administration; provision of business assistance for airport facilities in Class 35, operation of airports; airport management advisory services; airport management; operations and services of the airport in Class 39 and airport security services and information relating thereto in Class 45.

As mentioned above, apart from the proprietor’s participation in numerous international conferences and trade fairs where the EUTM was used and part of which are also attended by European Union customers or exhibitors, the only use shown that relates to the relevant territory in the relevant time frame relates to the airports of Pafos and Larnaka in Cyprus.

In this regard, the applicant points out that the evidence does not show use of the EUTM as these airports are run by the company Hermes Airports Ltd under its own brand HERMES. The EUTM proprietor claims, however, that the services are not always visible to the end users of airports or to the visitors of the website of an airport management company. Nevertheless, the EUTM would have been used within the consortium of companies managing the airports in Cyprus, i.e. towards other airport management companies which also constitute a market.

The evidence cannot be assessed in absolute terms but must be assessed in relation to other relevant factors. In this respect, the evidence should be viewed in relation to the nature of the services and the structure of the relevant market (30/04/2008, T-131/06, Sonia Sonia Rykiel, EU:T:2008:135, § 53). 

While it is therefore true, as the EUTM proprietor submits, that the characteristics of the aviation industry and the peculiarities of the services rendered in that specific market must be taken into account when assessing genuine use, the fact remains that the evidence must show public and outward use of the EUTM in relation to the relevant services with the aim of maintaining or creating a market share in that market. In the present case, however, from the submitted evidence, such use, even with a view to other airport management companies, cannot be deduced in relation to the airports in Cyprus.

The EUTM proprietor claims that its mark is displayed on the website of the airport management company (Exhibit D to Enclosure 4). However, the website clearly states that “Hermes Airports Ltd assumed management and control of Larnaka International Airport and Pafos International Airport on 12 May 2006, under 25 year BOT (Build-Operate-Transfer) concession agreement with the Republic of Cyprus”. By contrast, the EUTM proprietor is only listed with the sign as one of the nine shareholders in that company which does not imply that it rendered airport management services under that mark. The sign used in that regard may be perceived as a company logo or as house brand of the company that has invested in the operator of the Cyprus airports, but it is not perceived as being itself used for management or other services relating to these airports that are run by Hermes Airports.

In the present case, the proprietor itself only claims to have rendered the relevant services towards other airport management companies. Inasmuch as this refers to Hermes Airports Ltd. or the other companies that form part of the same consortium of companies, i.e. the other shareholders in Hermes Airports Ltd., such use rather appears to be merely internal. The EUTM proprietor argues that it provides airport management and operation services by seconding its own employees to specific airports operated by itself or related entities (Enclosure 3, § 9). However, assisting Hermes Airports Ltd. in the operation of the Larnaka and Pafos airports by seconding its own staff is not necessarily outward use as the EUTM proprietor is one of the shareholders in this company and there is no evidence whatsoever to suggest that these secondments were services rendered by the EUTM proprietor towards Hermes Airports Ltd. with the aim of securing a market share for these services under the EUTM. From the evidence it rather seems that the EUTM proprietor, together with other companies, created and invested in a company that provides management services at the Cyprus airports under a different mark. The EUTM proprietor only internally contributes to the success of this common project by seconding its employees who then render services under a different brand as employees of the operating entity that was specifically created as vehicle of this common project, Hermes Airports Ltd. From the evidence in the file it cannot be deduced with sufficient certainty that the proprietor publicly and outwardly used the EUTM for any of the contested services towards Hermes Airports Ltd. or any other company in the EU.

There are at best two pieces of evidence that may suggest or be indicative of business assistance services being rendered by the EUTM proprietor to Hermes Airports Ltd. in relation to the Cyprus airports. The first is the brochure issued by Egis Airport Operation (Enclosure 4, Exhibit E), another shareholder in Hermes Airports Ltd., which mentions that both Egis Airport Operation and the EUTM proprietor “have assisted Hermes Airports, via a dedicated structure, in the development and management of Larnaka and Pafos airports” and “are together still carrying out their role as key players in the operation of the airports, bringing the supervision and expertise necessary to develop, operate and manage both airports”. However, this piece of evidence is not particularly objective evidence as the EUTM proprietor submits, but rather subjective as it originates from a related company that presents not only the activity of the EUTM proprietor but its own at the same time and in the same way. In addition, it does not clearly follow from this document that the assistance to Hermes Airports Ltd by the EUTM proprietor was not merely internal and rendered under the EUTM. The second is a flyer mentioning “Want to be the first to serve these untapped routes? Contact […]@vantageairportgroup.com” which suggests that the EUTM proprietor managed some untapped routes which include #Cyprus2Toronto and #Cyprus2Madrid. The flyer was allegedly distributed to attendees at the World Routes 2016. However, there is no information as to the reach of such distribution and no evidence corroborating any distribution at all.

The remaining evidence suggests that management and other services are rather rendered under the brand of Hermes Airports Ltd. and/or the Cyprus Airport Operator Group.

In this regard, the witness statement reads “The Owner [the EUTM proprietor] invested in the Cyprus Airports through its ownership of shares in the operator, Hermes Airports Ltd., and its ownership of shares in Cyprus Airport Operator Group (“COAG”) which manages the Cyprus Airports. The Owner has provided the Vantage Services at the Cyprus Airports by leading Hermes Airport Limited with development and management of the Cyprus Airports. For example, the chief executive officer of Hermes Airport Limited, […], and […], managing director of COAG, are both employees of the Owner.” (Enclosure 3, § 15).

The evidence relating to awards received for the management and running of the Larnaka and Pafos airports in Cyprus (Enclosure 4, Exhibits F 1-F 4) also reinforce the impression that services relating to these airports were not provided under the EUTM. According to the submitted evidence, the awards either went to the Larnaka and/or Pafos airports or to Hermes Airports, Cyprus. Neither the EUTM nor the proprietor is mentioned in any of these documents. The only exception is the EUTM proprietor’s own website (Enclosure 4, Exhibit F 1) where the awards are listed as examples of recognition of Vantage and its network airports, but still no award to Vantage is mentioned in the list. Even if, as the EUTM proprietor argues by reference to the decision of the Cancellation Division of 23/05/2016, 8999 C, the recognition proven through awards could in principle be sufficient to establish genuine use, this is irrelevant in the present case where no link can be established between the awards received and the EUTM.

The website excerpt from ACI Europe (Enclosure 4, Exhibit S) shows the EUTM as part of the sign below the picture of the EUTM proprietor’s CFO who is presented as one of the speakers on a panel under the heading “The investor’s perspective on sustainability & business development”. On the one hand the sign is only used to indicate that this speaker belongs to the company of the EUTM proprietor and on the other hand, the title of the panel suggests that he represents the view of an investor. This again hints at the EUTM proprietor investing in airport operation and development projects but at least not necessarily rendering any actual services under the EUTM in this regard. Contrary to the allegations of the EUTM proprietor, the picture of the event does not show the EUTM (neither on its own nor in connection with other elements, e.g. as shown above), but prominently and repeatedly displays the brand of Hermes Airports Ltd .

As regards the scarce examples of advertising materials submitted by the EUTM proprietor (Enclosure 4, Exhibits U, W and X), some are mere proofs (part of Enclosure 4, Exhibit X) or used at a Routes Americas event, clearly targeting the American market (part of Enclosure 4, Exhibits U and X). Except for the flyer mentioned above (Enclosure 4, Exhibit X), none of these documents provides any information on the services rendered by the EUTM proprietor under the EUTM (neither on its own nor in connection with other elements). Furthermore, there is no information as to the reach of their alleged distribution, and no other evidence corroborates any distribution at all. According to the EUTM proprietor the brochure submitted as Enclosure 4 Exhibit W was only used outside the relevant period, namely at GAD World 2019 which took place in November 2019. In any event, this brochure also reinforces the impression that the EUTM proprietor does not necessarily render airport management or development services under the EUTM (neither on its own nor in connection with other elements), but rather creates separate entities in collaboration with other partners whereas the relevant services are then provided by these separate entities under a different brand. The brochure reports on the projects at La Guardia, Chicago Midway and JFK airports in the US and, while it mentions the impact that the EUTM proprietor claims to have had on each project, it also always displays the brand under which these projects were conducted, namely “La Guardia Gateway Partners”, “Chicago midway” and “jetBlue ׀ JFK Millennium Partners”:

Apart from the evidence analysed above, use of the EUTM (or the verbal sign ‘VANTAGE’) in connection with further elements can be seen on the EUTM proprietor’s website www.vantageairportgroup.com (Enclosure 4, Exhibit G ) and at or in relation to events and conferences, at least part of which is also addressed at an EU public (GAD World or Routes World events, the FTE Startup Hub Live-Event in Dublin in 2018 and the ACI EUROPE Annual Assembly & Congress) and relates to the relevant time period (Enclosure 4, Exhibits I, J, O, P, Q, R, S, T, (partly) N and V, e.g. or ).

However, the website is not specifically directed at a European Union public, even though it also contains news on the Hermes Airports in Cyprus, and it does not provide any information on any services rendered under the EUTM (neither on its own nor with other elements) in relation to these airports or otherwise in the EU. The same applies to the documents relating to events where the proprietor participated as exhibitor or sent a speaker and where the EUTM is often displayed in connection with further elements as shown above e.g. on the organizer’s website and/or the proprietor’s booths. As far as these documents and events at all relate to the relevant time period and the European Union, they do not provide any information on specific services provided in relation to airport operation, administration, management, security or other airport related services under the EUTM (neither on its own nor with other elements) in the European Union. Irrespective of the numbers of visitors at the website or attendees at the conferences and whether such visitors or attendees may at all originate from the European Union, these documents do not show that the EUTM (on its own or with other elements) has been used for the contested services.

If indicated at all, the topics in relation to which employees of the EUTM proprietor contributed as speakers either relate to specific projects outside the EU, are quite general or appear to relate to investment in airports rather than to operation or management of an airport (e.g. “JFK and beyond: hybrid models for a hybrid market”, “Investing In Airports State Of The Union Panel – How Is The Airport Business Evolving And Which Changes Present The Greatest Challenges And Opportunities To Investors Going Forwards?” (GAD 2015), Enclosure 4, Exhibit I or “The investor’s perspective on sustainability & business development” Enclosure 4, Exhibit S). The interviews or articles that were published in connection with such events (e.g. Enclosure 4 Exhibits N) only contain very little information, if any, on the activities of the EUTM proprietor in the European Union. For instance, the article on the EUTM proprietor’s 20^th anniversary mentions that an “example of [its] product suit is energy management. […] In Larnaka, this meant evaluating photovoltaic solar plants” (Enclosure 4 Exhibits P). While this mentions specific services in relation to a Cyprus airport, it does not imply that these services were actually rendered under the VANTAGE mark and not, for instance, by Vantage employees under the HERMES brand.

Irrespective of whether or not, as the EUTM proprietor submits, attending and publicly speaking on conferences could be considered use of the EUTM, in the present case, such use cannot be linked to the contested services and is therefore anyway insufficient to prove genuine use of the EUTM.

Despite not contributing to genuine use in the relevant time period, the evidence submitted in relation to the EUTM proprietor’s involvement with the John Lennon Airport in Liverpool is interesting in that regard. In that case, the EUTM proprietor not only was majority shareholder in the airport management company, but the company also used the VANTAGE name in the company name. One of the submitted articles states “Vantage Airports UK is the new name for the partnership between Vantage Airport Group and The Peel Group which jointly own Liverpool John Lennon Airport. The new branding aligns the Company more closely with majority shareholder Vantage Airport Group, an industry-leading investor, developer and manager of airports around the world.” (Enclosure 4, Exhibit C). This shows that the peculiarities of the aviation industry and the airport management business do not necessarily mean that the EUTM cannot be used directly for management services as was the case in the UK before the relevant period. The fact that this is not the case in Cyprus therefore appears to be less a matter of the specific services rendered but rather due to the fact that the EUTM proprietor is not the only or majority shareholder, but that there are eight other shareholders involved in that project.

In light of the above, based on the evidence on file the Cancellation Division cannot establish a sufficiently clear relation between the use of the EUTM (neither on its own nor with other elements), including on the proprietor’s website as well as on or in relation to trade fairs, to airport related services in the European Union in the relevant time frame. Taking into account the specific kind of services rendered and the apparent fact that airport operation and management are rather big scale projects, use of the EUTM during the relevant time period in relation to the Cyprus airports only could still have been sufficient in terms of extent. This means that the evidence is not discarded as insufficient for being limited to a single member state or only one or two airports. However, on the basis of the submitted evidence in the present case, no actual outward and public use of the EUTM (neither on its own nor with other elements) for any of the contested services can be ascertained in relation to the Cyprus airports (or otherwise in the EU) either.

Overall assessment

In order to examine, in a given case, whether use of the 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).

Inasmuch as the evidence at all concerns the relevant territory and time period, it does not provide sufficient information on use in relation to the relevant services and on the extent of use. For the reasons set out above it cannot be deduced without resorting to probabilities and presumptions that the mark was used publicly and outwardly with the aim of maintaining a market share for the contested services which rather seem to have been rendered under a different brand by a separate company, held by the EUTM proprietor and eight other companies. There are hardly any, at least not sufficiently clear, indications on any services provided under the EUTM and with the exception of two isolated documents which do not have particularly high probative value, as one originates from the EUTM proprietor itself (Enclosure 4, Exhibit X) and the other from a related company promoting also its own involvement in Hermes Airports Ltd (Enclosure 4, Exhibit E). However, even from those documents it cannot clearly be deduced that the EUTM was actually used in this context to a sufficient extent (neither on its own nor with other elements).

An overall assessment of the evidence does therefore not allow the conclusion, without resorting to probabilities and presumptions, that the mark was genuinely used during the relevant period for the relevant services (15/09/2011, T-427/09, Centrotherm, EU:T:2011:480, § 43).

The methods and means of proving genuine use of a mark are unlimited. The finding that genuine use has not been proven in the present case is due not to an excessively high standard of proof, but to the fact that the EUTM proprietor chose to restrict the evidence submitted (15/09/2011, T-427/09, Centrotherm, EU:T:2011:480, § 46).

The above findings are not called into question the previous decision of the Opposition Division in relation to the mark SKYWATCH Air Traffic Services (fig.) (29/06/2011, B 1 705 972). According to the proprietor, this decision concerned services provided within a very defined commercial avenue that were not too dissimilar to the services at issue in the present case, namely air traffic services; airport services; flight planning (Class 39) and providing of training in the field of air traffic in Class 41 (29/06/2011, B 1 705 972, SKYWATCH Air Traffic Services (fig.). However, the aforementioned services were those of the contested sign in that decision and genuine use was only examined in relation to the earlier mark SkyWatch which was found to have been genuinely used for traffic advisory and collision avoidance systems for aviation in Class 9. Also, unlike in the present case, the evidence submitted in that case all referred to “SKYWATCH” aviation systems or described the “Skywatch” system among other avoidance products in the field of aviation, thus clearly showing use of the mark SkyWatch in relation to those goods. The same applies to the other decision which the EUTM proprietor mentions (24/07/2014, 8157 C, SKYCELLAR) where a sufficiently clear link between the mark SkyCellar and the services (in that case whole sale and import services relating to alcoholic beverages) could be deduced from the submitted evidence. Against this background, the quoted decisions cannot cast any doubts on the above findings. The arguments of the EUTM proprietor must therefore be dismissed.

Reasons for non-use

If the use shown is considered insufficient, the EUTM proprietor claims proper reasons for non-use.

In accordance with Article 58(1)(a) EUTMR, the EUTM proprietor may either prove genuine use of the contested EUTM or prove that there are justifiable reasons for non-use. These reasons cover circumstances arising independently of the EUTM proprietor’s will which prevent use of the contested European Union trade mark. As an exception to the obligation of use, the concept of proper reasons for non-use is to be interpreted rather narrowly.

The EUTM proprietor only explains in a very general manner that, in the airport operating business, opportunities to pitch for services such as the contested services in Classes 35, 39 and 45 are infrequent, deadlines are often extended by many years and completion periods may extend beyond 20 years. In this context the proprietor not only refers to the particularly large La Guardia airport project in the US, but also to services provided at Larnaka International Airport with a 25-year build-operate-transfer agreement. According to the proprietor’s claims there are valid reason for non-use in instances where delays have been incurred for safety or planning reasons that have arisen independently of its own will and where such use would have been impossible or unreasonable.

First of all, it is noted that, as the applicant submits, the EUTM proprietor has not provided any evidence on the characteristics of the specific market concerned except for various examples of its own activities on that market. Nevertheless, as it is the best light in which the EUTM proprietor’s case can be considered, for the sake of this assessment it will be assumed that there are less opportunities to take over operation of an airport or to provide airport related services on a similar large scale than to provide services in other industry sectors. Likewise, it will be assumed that such service contracts are signed as long-term projects which may involve longer completion periods.

Second, it is worth clarifying that genuine use has not been dismissed due to the peculiarities of the airport business. In particular, the long completion period as agreed on for the Larnaka airport in the 25-year build-operate-transfer agreement or the fact that no other opportunities arose apart from the proprietor’s involvement in the Cyprus airports, are not the reason for which genuine use has been excluded. Use has not been considered insufficient in terms of extent for not being sufficiently significant as regards commercial volume or geographical reach, but for not showing actual use of the EUTM in relation to any of the contested services. The example of the EUTM proprietor’s involvement in the John Lennon Airport in the UK before the relevant time period illustrates very well that it is possible for the EUTM proprietor to provide such services under the VANTAGE mark, but in case of the Cyprus airports it chose to only invest in the operating company Hermes Airport Ltd using a different brand instead of operating the airports under the EUTM.

Third, the EUTM proprietor itself only submits that there may be proper reasons for non-use under specific circumstances only, in particular where time delays or constraints arise wholly independent of its own will, e.g. where delays have been incurred for safety or planning reasons that have arisen independently and where such use would, as a result, have been impossible. However, no specific reasons, such as specific delays or constraints arising in relation to any project in the European Union have been submitted. In particular, in relation to the EUTM proprietor’s involvement in the Cyprus airports, no explanations have been given about any extraordinary circumstances arising independently from the EUTM proprietor’s will that would have hindered it from using the EUTM in relation to the services provided at these airports. It rather chose to provide such services under a different brand through Hermes Airports Ltd., a company created with other partners for the specific purpose of rendering these services in Cyprus.

The EUTM proprietor also claims that the lack of opportunities and the fact that not every bidder can be successful every time such opportunities arise, constitute an obstacle to genuine use that is independent of its own will and should thus qualify as proper reason for non-use. Again, the EUTM proprietor has only made general allegations in that regard. It has not argued that no opportunities to provide such services arose in the European Union during the relevant five-year period or that it participated in relevant bidding procedures but was not successful. In any event, it is obvious from the submitted evidence that the EUTM proprietor did have the opportunity to use the mark in relation to the airports of Larnaka and Pafos in Cyprus during the relevant time period.

The EUTM proprietor also submits that it has attended conferences in the EU, which is a business development activity, and has operated as part of the consortium of companies running airports in Cyprus. Whether or not such use may have been sufficient in terms of extent, can be left open. The submitted evidence relating to such conferences does not support a finding of genuine use as it does not allow the Cancellation Division to establish a clear link between the EUTM and the relevant services either.

In light of the above, the EUTM proprietor has not succeeded in proving that circumstances arose independently of its will that constitute an obstacle to the use of the EUTM.

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the contested EUTM for any of the services for which it is registered and has also not proven, in the alternative, that it had proper reasons for non-use. As a result, the application for revocation is wholly successful and the EUTM must be revoked in its entirety.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 20/09/2019.

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.

The Cancellation Division

Natascha GALPERIN

Elena NICOLÁS GÓMEZ

Judit NÉMETH

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.