CANCELLATION No 36 801 C (REVOCATION)

Gynial GmbH, Hernalser Gürtel 1, 1170 Vienna, Austria (applicant), represented by Geistwert - Kletzer Messner Mosing Schnider Schultes Rechtsanwälte OG, Linke Wienzeile 4/2/3, 1060 Wien, Austria (professional representative)

a g a i n s t

Mavi Sud S.r.l., Viale dell’Industria 1, 04011 Aprilia (LT), Italy (EUTM proprietor), represented by Società Italiana Brevetti S.p.A, Piazza di Pietra 39, 00186 Roma, Italy (professional representative).

On 05/11/2019, 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 13 730 601 (figurative mark), hereinafter the EUTM. The application is directed against against all the goods covered by the EUTM.

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

GROUNDS FOR THE DECISION

An application for revocation based on lack of genuine use can only be filed against an EUTM that has already been registered for at least five years at the time of the application. This is because Article 58(1)(a) EUTMR only provides for the revocation of a contested trade mark where it has not been put to genuine use within a continuous period of five years after registration.

On 24/07/2019, the applicant filed an application for revocation. The contested EUTM was registered on 28/08/2015. Consequently, at the time of filing of the application for revocation, the contested EUTM application had not been registered for at least five years.

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

Cindy BAREL

Arkadiusz GORNY

María INFANTE SECO DE HERRERA

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.