CANCELLATION No 12 018 C (REVOCATION)
YumYumBrosFoodCompany Limited, Unit 12 Chancerygate Business Center, Tallon Road, Brentwood Essex CM13 1TJ, United Kingdom (applicant), represented by Trademark Cafe Limited, Cricket Chambers, 16 Ranelagh Grove, St. Peters, Broadstairs Kent CT10 2TE, United Kingdom (professional representative)
a g a i n s t
Heron Quality Foods Limited, Knockbrown, Bandon, County Cork, Ireland (EUTM proprietor), represented by Cruickshank Intellectual Property Attorneys, 8A Sandyford Business Centre Sandyford, Dublin 18, Ireland (professional representative).
1. The application for revocation is upheld.
2. The EUTM proprietor’s rights in respect of European Union trade mark No 8 867 004 are revoked in their entirety as from 29/10/2015.
3. The EUTM proprietor bears the costs, fixed at EUR 1 150.
The applicant filed a request for revocation of European Union trade mark No 8 867 004 (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:
Class 29: 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; frozen ready meals; chilled meals; ready cooked meals consisting wholly or substantially of vegetables, fish, meat, poultry and game; foodstuffs comprising of a mixture of meat preserves and cereals; soups; fishcakes; potato cakes; prepared meals consisting principally of vegetables, fish, meat, poultry and game; frozen foods; vegetarian foodstuffs made from edible oils and edible fats; frozen vegetarian ready-meals; pre-packed meals.
Class 30: 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; breakfast cereals; cereals prepared for consumption by humans; food products containing cereals; foodstuffs made from cereals; bread mixes; pasta containing stuffing; stuffing mixes [foodstuffs]; flavourings for soups; cakes; gravy mixes; preparations for making gravy; ready meals; ready meals being chilled or frozen; prepared meals; pre-cooked meals; ready to eat bake goods; baked foodstuffs; baked products; muffins; bread mixes; garlic bread; malt bread; pitta bread; rye bread; rolls; wholemeal bread; wholemeal bread mixes; rice cakes; gluten-free flour; gluten free dry mixes; biscuits; gluten free products, including cookies, cereals and mixes for bread, cake slices; bread; stuffing mixes [foodstuffs].
Class 43: Services for providing food and drink; catering services; temporary accommodation; restaurant, bar and catering services; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; retirement home services; crèche services.
The applicant invoked Article 51(1)(a) EUTMR.
GROUNDS FOR THE DECISION
According to Article 51(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 02/08/2010. The revocation request was filed on 29/10/2015. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.
On 06/11/2015, the Cancellation Division duly notified the EUTM proprietor of the application for revocation and gave it until 11/02/2016 to submit evidence of use of the EUTM for all the goods and services for which it is registered.
The EUTM proprietor did not submit any observations or evidence of use in reply to the application for revocation within the time limit.
According to Rule 40(5) EUTMIR, if the proprietor of the European Union trade mark does not provide 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 55(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.
According to Article 85(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 Rule 94(3) and (6) EUTMIR and Rule 94(7)(d)(iii) 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
Begoña URIARTE VALIENTE
According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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.
The amount determined in the fixation of the costs may only be reviewed by a decision of the Cancellation Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.