CANCELLATION No 34 769 C (REVOCATION)

Levlup GmbH, Hans-Böckler-Straße 10 A, 37079 Göttingen, Germany (applicant), represented by Boehmert & Boehmert Anwaltspartnerschaft MbB - Patentanwälte Rechtsanwälte, Hollerallee 32, 28209 Bremen, Germany (professional representative)

a g a i n s t

Cartouche Concepts Limited, Central Chambers, Dame Court, Dublin 2, Ireland (EUTM proprietor), represented by Kilburn & Strode LLP, Laapersveld 75, 1213 VB Hilversum, The Netherlands (professional representative).

On 19/04/2021, the Cancellation Division takes the following

DECISION

1. The application for revocation is upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 10 829 422 are revoked in their entirety as from 18/04/2019.

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 10 829 422 'Level Up' (word mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 5:

Nutritional supplements.

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 24/10/2013.The revocation request was submitted on 18/04/2019. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 26/04/2019, 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 for which it is registered.

On 01/07/2019, the proprietor requested an extension of the time limit until 01/09/2019, which was granted.

On 28/08/2019, both parties jointly requested the suspension of the proceedings, which was granted until 28/02/2020, with a new time limit for the proprietor to submit the proof of use until 28/04/2020.

On 28/04/2020, the proprietor requested a new extension of time limit, which was granted due to the exceptional circumstances created by the COVID-19 pandemic, until 18/05/2020.

On 18/05/2020, both parties jointly requested the suspension of the proceedings, which was granted until 18/11/2020, with a new time limit for the proprietor to submit the proof of use until 18/01/2021.

On 11/09/2020, the applicant requested the opting out of the suspension. Due to this, the time limit for the proprietor to submit the proof of use was 04/12/2020.

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 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 18/04/2019.

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(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

Alina FRUNZA

Jose Maria FERNANDEZ RUEDA

Richard BIANCHI

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.