CANCELLATION No 18 144 C (REVOCATION)

Popup House, Domaine du Petit Arbois, Avenue Louis Philibert, 13100 Aix-En-Provence, France (applicant), represented by T Mark Conseils, 9 avenue Percier, 75008 Paris, France (professional representative)

a g a i n s t

Pro Servis Invest, s.r.o., Za Pazdernou 1498T, 39701 Písek, Budějovické Předměstí, Czech Republic (EUTM proprietor), represented by David Műller, Filipova 2016/6, 14800 Prague 4, Czech Republic (professional representative)

On 25/06/2019, the Cancellation Division takes the following

DECISION

1. The application for revocation is partially upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 9 303 314 are revoked as from 04/12/2017 for some of the contested goods and services, namely:

Class 19: Concrete building elements, floor boards, prepared wood, wood for building, non-metallic shutters, non-metallic building panels, cladding, not of metal, for building, building materials, not of metal non-metallic fillings for building openings, non-metallic plumbing elements, non-metallic building fittings, but not including rivets or fastening devices.

Class 37: Installation of doors and windows, building insulation, building insulating, plumbing, kitchen assembly, painting interiors and exteriors, construction information, construction and erection work, including all work surrounding the main building production and affiliated building productions, preparatory works for construction, construction and operation coordination, conducting individual construction works, building construction supervision, building maintenance.

Class 40: Wood-working (joinery, carpentry), i.e. sawing, saw mill planning, water proofing and drying wood and wooden semi-finished products, shaping, metal-working, custom assembly of materials for others.

3. The European Union trade mark remains registered for all the remaining goods, namely:

Class 19: Wooden houses, constructions - houses, also prefabricated, including passive and low-energy, components for such constructions, e.g. non-metallic building materials, including building wood, building glass, non-metallic roofing, insulation materials belonging to class 19.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 9 303 314 (the EUTM) for the figurative sign below:

The request is directed against all the goods and services covered by the EUTM, namely:

Class 19: Concrete building elements, floor boards, prepared wood, wood for building, non-metallic shutters, non-metallic building panels, cladding, not of metal, for building, building materials, not of metal; wooden houses, constructions - houses, also prefabricated, including passive and low-energy, components for such constructions, e.g. non-metallic building materials, including building wood, building glass, non-metallic roofing, insulation materials belonging to class 19, non-metallic fillings for building openings, non-metallic plumbing elements, non-metallic building fittings, but not including rivets or fastening devices.

Class 37: Installation of doors and windows, building insulation, building insulating, plumbing, kitchen assembly, painting interiors and exteriors, construction information, construction and erection work, including all work surrounding the main building production and affiliated building productions, preparatory works for construction, construction and operation coordination, conducting individual construction works, building construction supervision, building maintenance.

Class 40: Wood-working (joinery, carpentry), i.e. sawing, saw mill planning, water proofing and drying wood and wooden semi-finished products, shaping, metal-working, custom assembly of materials for others.

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

SUMMARY OF THE PARTIES’ ARGUMENTS

The case for the applicant

The applicant states that the proprietor is not using the EUTM for the goods and services at issue. The evidence filed by the EUTM proprietor in these proceedings to prove use is considered by the applicant to be inadequate and defective in several respects.

The EUTM as registered only appears on the catalogues and product sheets. When the EUTM does appear, it is only as an altered sign, consisting of a brown font in a frame (Exhibits 1, 2 and 3), or blue background and white font (Exhibit 25), and sometimes only on the front page of the catalogue (Exhibit 2). Without the figurative elements of the EUTM, the sign fails to fulfil its basic function of indicating to the consumer the origin of the contested goods and services, since the term ‘POP’ is a common word in the field of architecture and therefore lacks distinctiveness.

The catalogues and web site screenshots are not evidence of actual use of the EUTM, but only evidence that the goods and services shown in the catalogues and on the web sites were probably offered to the public for sale. The EUTM provider has failed to show that the catalogues were widely distributed, or that the web sites were frequently visited by the public.

The invoices and construction contracts relate to 14 clients, which is a small number for a period of 5 years and the size of the prefabricated house building market in the European Union. The licence agreement of February 2017 under the terms of which the EUTM proprietor authorised the company Pop Building to use the trade marks ‘POP’ and ‘ARCHI POP’, is insufficient by itself to prove the genuine use of the EUTM.

The applicant accuses the EUTM proprietor of inflating its evidence to 400 pages by filing multiple catalogues and by multiplying the examples of contracts and invoices from the same order. Of this total, 250 pages are devoted to contracts and invoices covering just 20 orders. 18 of the 20 orders are in France, which the applicant considers inadequate to demonstrative that the EUTM is being used in a substantial part of the European Union.

The case for the EUTM proprietor

The EUTM proprietor is a Czech company that uses the marks ‘POP’ and ‘archi POP’ in connection with various types of ‘low energy’ residential housing, which it constructs and sells to customers. The EUTM was transferred to the EUTM proprietor in early February 2017 by the previous owner, which was a company called Ecomodula. This explains why a substantial portion of the documentation filed bears the name Ecomodula. In addition, in February 2017 the EUTM proprietor signed a licensing agreement with a Czech company called POP BUILDING, under the terms of which POP BULDING can use the marks ‘POP’ and ‘archi POP’.

The principal markets of the EUTM proprietor are the Czech Republic and France. The evidence submitted by the EUTM proprietor is a sample of this commercial activity, and is sufficient to demonstrate that the EUTM has been put to genuine use for the contested goods and services during the 5 years up to the date of the application for revocation on 04/12/2017.

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, 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 earlier 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).

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 services for which it is registered.

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 11/09/2011. The revocation request was filed on 04/12/2017. 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 04/12/2012 to 03/12/2017 inclusive, for the contested goods and services listed in the section ‘Reasons’ above.

Before proceeding to list the evidence of use, it is noted that the EUTM proprietor requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties. The Cancellation Division accepts this request insofar as it relates to part of the evidence (specifically the sensitive commercial information contained in the documents). Therefore, it will describe that part of the evidence only in the most general of terms without divulging any such data or specific information which could breach the terms of the confidentiality request made and accepted. However, this does not apply to evidence which consists of information that is already in the public domain (including available to the public on websites).

On 11/04/2018, the EUTM proprietor submitted the following evidence as proof of use:

• Exhibits 1 and 2.

‘POP’ and ‘archi POP’ brand residential catalogue, Ecomodula 2014.

• Exhibit 3.

Product sheet, Ecomodula 2014.

• Exhibit 4.

Presentation of ‘POP’ brand houses in Stavebnictví a interior (‘Construction & Interiors’) Czech-language periodical, on behalf of Ecomodula, 2012.

• Exhibit 5.

Licence agreement for “POP” and “archi POP” trade marks, February 2017.

• Exhibits 6, 7, 9, 11, 12, 15 and 16.

Price offers and invoices from Ecomodula for the construction of “POP” branded houses in France, 2013 and 2014.

• Exhibit 8.

Price offer and invoice from Ecomodula for the construction of “POP” a branded house to a Swiss resident, 2012 and 2013.

• Exhibit 10.

Price offer and works contract for the construction of “POP” branded house between Ecomodula and a French resident, 2013.

• Exhibit 13

A signed contract for the construction of a ‘POP’ branded house between POP Building and a Czech resident, 2017, and 3 invoices (1 in 2017 and 2 in 2018) from POP Building for the construction of a ‘POP’ branded house to a Czech resident.

• Exhibit 14.

A signed contract for the construction of a “POP” branded house between POP Building and two Czech residents, 2017.

• Exhibit 17.

Product sheet, Ecomodula 2014.

• Exhibit 18.

Transcript of https://cz.kompass.com/p/nizkoenergetickemontovane-drevene-domy/46935/ web site offering ‘POP’ and ‘archi POP’ branded houses.

• Exhibit 19.

Transcript of http://topdomy.cz/katalog/ecomodulaarchipop-157/ website owned by Ecomodula, offering ‘archi POP’ branded houses

• Exhibit 20.

Transcript of http://www.pop-building.cz/cz/typy-domupop/ website owned by POP Building, offering ‘POP’ branded houses.

• Exhibit 21.

Transcript of http://www.ecomodula.com archived (2014) website owned by POP Building, offering ‘POP’ branded houses.

• Exhibit 22.

Transcript of http://www.ecomodula.com archived (2015) website owned by POP Building, showing an online configurator for ‘archi POP’ branded houses.

• Exhibit 23.

Transcript of http://www.ecomodula.com archived (2015) website owned by Ecomodula, presenting ‘archi POP’ branded houses.

• Exhibit 24.

An invoice to Ecomodula for domain name and webhosting ofpostavpop.cz for 2013-2014 (postavpop.cz redirected to http://www.ecomodula.com), an invoice for ‘blueprints and models of walls and ceilings for a POP house’, 2013 and an invoice for the design of a ‘POP’ brand website, 2015.

Assessment of genuine use – factors

Time of use

The evidence must show genuine use of the EUTM within the relevant period.

Most of the evidence is dated within the relevant period. Therefore, the evidence of use filed by the EUTM proprietor contains sufficient indications concerning the time of use. This is not a matter that has been contested by the applicant.

Place of use

The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 18(1) EUTMR and Article 58(1)(a) EUTMR).

The catalogues (Exhibits 1 and 2) and product sheets (Exhibits 3 and 4) filed by the EUTM proprietor, as well as advertisements, contracts and invoices, are written in the Czech language. It has not been disputed by the applicant that the catalogues were intended for the Czech consumer, even if it is not clear how many members of Czech public were exposed to them. The invoices show that most of the actual sales of ‘low energy’ ‘POP’ houses were in France, although Exhibits 13 and 14 contain invoices for sales to customers in the Czech Republic. Taken together, these documents are sufficient to indicate that the EUTM proprietor is marketing and selling the contested goods and services under the EUTM in the European Union.

Nature of use: use as a trade mark

Nature of use requires, inter alia, that the contested European Union trade mark is used as a trade mark, that is, for identifying commercial origin, thus making it possible for the relevant public to distinguish between goods and services of different providers.

The catalogues and product sheets contain recognisable images of the EUTM used in relation to the construction of ‘low energy’ houses. The invoices do not have the EUTM on them, but they are evidence of the sale of houses for sizeable sums of money and they do contain product reference numbers followed by the word ‘POP’. The combination of this documentation shows that the EUTM has been used to identify the origin of the goods and therefore shows use as a trade mark.

Nature of use: use of the mark as registered

‘Nature of use’ in the context of Article 10(3) EUTMDR further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 18(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.

The EUTM is a composite mark, which is to say that it contains the word element ‘POP’, combined with a device:

The figurative part of the sign consists of two intersecting rectangular shapes with a simple stylised orange asterisk, or flower, positioned on the corner of the larger rectangle.

The promotional material, in the form of catalogues and product sheets, has the EUTM displayed quite prominently, though not in exactly the same form as the registered form. The following are examples appearing throughout Exhibits 1 to 4:

The above representations lack the two rectangles, and there have been some words added. The two light grey rectangles that frame the word ‘POP’ in the EUTM are not striking in any way and they possess little or no inherent trade mark significance. The signs in the catalogues retain the dominant and distinctive elements of the EUTM, namely, the same figurative element of an orange asterisk placed in virtually same configuration with the word ‘POP’. The additional words refer to a company name, and in the opinion of the Cancellation Division, they do not alter the distinctive character of the mark.

The figurative part of the EUTM is absent in the other documentation, in particular, the invoices. The applicant claims that the term ‘POP’ is a common word in the field of architecture, music and art, and therefore the absence of the figurative elements of the EUTM means that the mark no longer serves as an indication of commercial origin, reduced as it is to the descriptive indication ‘POP’. The Cancellation Division does not share this view. The word ‘POP’ on its own does not make a direct and obvious reference to an easy assemble house.

The evidence shows use of the mark in a form that does not depart significantly from the EUTM, and the Cancellation Division is therefore willing to accept that the EUTM proprietor has provided proof that the EUTM is being used in a way that closely reflects the figurative form in which it is registered.

Extent of use

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

The Court has held that ‘[u]se 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 Court has found that, under certain circumstances, even circumstantial evidence such as catalogues featuring the trade mark, while not providing direct information on turnover, can also be sufficient for proving extent of use in an overall assessment (08/07/2010, T‑30/09, Peerstorm, EU:T:2010:298, § 42 et seq.).

The applicant points to what it considers to be a significant flaw in the evidence filed, which is that all but a few of the invoices filed by the EUTM proprietor relate to the territory of France, rather than to the European Union market as a whole.

In fact, the promotional material indicates that the EUTM proprietor is active in the Czech Republic and has sold two properties there worth the equivalent of 35,000 euros in total. That said, the sale of two houses does not demonstrate a great amount of business activity over a period of 5 years, and it is accurate to say that the overall evidence of actual sales is to all intents and purposes limited to France, where the total value of the invoices is in excess of two million euros.

A low volume of goods and services marketed under a 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). Although the houses in question are relatively low cost simple assembly homes compared with normal houses, they are not cheap. Taking the invoices as a sample of the EUTM proprietor’s sales, it is reasonable to extrapolate an even higher figure in reality. The Cancellation Division concludes therefore that the proprietor has succeeded in demonstrating that the extent use of its mark is more than token use.

Use in relation to the registered goods and services

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 EUTM is registered.

The EUTM is registered for:

Class 19: Concrete building elements, floor boards, prepared wood, wood for building, non-metallic shutters, non-metallic building panels, cladding, not of metal, for building, building materials, not of metal; wooden houses, constructions - houses, also prefabricated, including passive and low-energy, components for such constructions, e.g. non-metallic building materials, including building wood, building glass, non-metallic roofing, insulation materials belonging to class 19, non-metallic fillings for building openings, non-metallic plumbing elements, non-metallic building fittings, but not including rivets or fastening devices.

Class 37: Installation of doors and windows, building insulation, building insulating, plumbing, kitchen assembly, painting interiors and exteriors, construction information, construction and erection work, including all work surrounding the main building production and affiliated building productions, preparatory works for construction, construction and operation coordination, conducting individual construction works, building construction supervision, building maintenance.

Class 40: Wood-working (joinery, carpentry), i.e. sawing, saw mill planning, water proofing and drying wood and wooden semi-finished products, shaping, metal-working, custom assembly of materials for others.

However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the goods and services for which it is registered.

According to Article 58(2) EUTMR, where there are grounds for revocation in respect of only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods and services only.

In the present case, the evidence shows genuine use of the trade mark for the following goods:

Class 19: Wooden houses, constructions - houses, also prefabricated, including passive and low-energy, components for such constructions, e.g. non-metallic building materials, including building wood, building glass, non-metallic roofing, insulation materials belonging to class 19.

The evidence clearly shows that the EUTM proprietor constructs ‘easy build houses’. Numerous photographs of the houses, together with plans, have been provided. The evidence does not demonstrate use for the remaining goods in Class 19, which are specialised types of building materials which although they may be used by the proprietor in the construction of the houses, there is no evidence that they are produced separately with the intention of being sold to third parties. Effectively, the only goods produced by the proprietor under the trade mark POP are the houses themselves.

As regards the services, the use of the mark must be public, that is to say it must be external and apparent to actual or potential customers of the goods or services. Use in the private sphere or purely internal use within a company or a group of companies does not amount to genuine use (judgments of 09/12/2008, C-442/07, Radetzky, EU:C:2008:696, § 22; 11/03/2003, C-40/01, Minimax, EU:C:2003:145, § 37; 09/09/2015, T-584/14, ZARA, EU:T:2015:604, § 33). Although the proprietor claims to provide the services under consideration in Classes 37 and 40, on closer inspection, the evidence reveals that the proprietor only carries out activities like ‘construction’ or ‘carpentry’ as part of the process of handing over its ‘easy build houses’ to its customers. Consequently, the proprietor cannot claim to be using its trade mark in conjunction with the services in Classes 37 and 40 in a public and outward manner since it is not actually providing these services to third parties.

Therefore, the Cancellation Division declares the EUTM to be revoked for the remaining goods and services for which it is registered.

Overall assessment

The case law of the Court of Justice has established various principles regarding revocation. These include the proposition that use must be more than merely ‘token’, which means that it must be aimed at maintaining or creating an outlet for the goods and services or a share in that market, rather than simply preserving the rights conferred by the registration.

The question for the Cancellation Division is whether genuine use has been established in all the circumstances. In answering this question, the Cancellation Division will address the main arguments advanced by the applicant.

In the present case, the applicant’ criticised the evidence of actual sales provided by the EUTM proprietor on the grounds that it only essentially relates to one part of the European Union, namely France. There is legal support for this position. Advocate General Sharpston, in the judgment of 19/12/2012, C 149/11, Onel / Omel, EU:C:2012:816 , stated the following at paragraphs 48 and 56 respectively:

‘…the geographical definition of the relevant market is the entire territory of the 27 Member States. The borders between Member States and the respective size of their territories are not pertinent to this inquiry. What matters is the commercial presence of that mark, and consequently that of the goods or services covered by the mark, in the internal market.’

‘…community trade mark protection must be available to all types of undertaking wishing to obtain protection of their marks throughout the territory of the 27 Member States and with the objective of using the mark in a manner that will maintain or create market share in the relevant internal market.’

However, the Court of Justice has been unwilling to entertain any notion of a de minimis rule in this regard, considering that the territorial borders of the Member States should be disregarded when assessing evidence of use of a EUTM. Given the unitary nature of a EUTM, the Court no doubt feels that there is little choice but to evaluate evidence of use in relation to the ‘internal market’, rather than by dividing the market up into national territories. Also, given the huge disparity in the size of the respective national markets within the European Union, it would make little sense to try and formulate a requirement of use based on national boundaries.

The Court also had the following to say, in the same ONEL/OMEL judgment:

‘Whilst there is admittedly some justification for thinking that a Community trade mark should - because it enjoys more extensive territorial protection than a national trade mark - be used in a larger area than the territory of a single Member State in order for the use to be regarded as ‘genuine use’, it cannot be ruled out that, in certain circumstances, the market for the goods or services for which a Community trade mark has been registered is in fact restricted to the territory of a single Member State. In such a case, use of the Community trade mark on that territory might satisfy the conditions both for genuine use of a Community trade mark and for genuine use of a national trade mark.’(Paragraph 50).

‘Since the assessment of whether the use of the trade mark is genuine is carried out by reference to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark serves to create or maintain market shares for the goods or services for which it was registered, it is impossible to determine a priori, and in the abstract, what territorial scope should be chosen in order to determine whether the use of the mark is genuine or not. A de minimis rule, which would not allow the national court to appraise all the circumstances of the dispute before it, cannot therefore be laid down (see, by analogy, the order in La Mer Technology , paragraphs 25 and 27, and the judgment in Sunrider v OHIM , paragraphs 72 and 77).’ (Paragraph 55).

The Court has clearly acknowledged the dilemma raised by the applicant in the present case, where the proof of actual sales submitted by the EUTM proprietor effectively only covers one territory in the European Union. The issue may be stated with concision: can a trade mark registration which confers protection across the whole of the European Union be maintained by a small amount of use in a one geographical area?

In the judgment of 29/09/2011, T‑415/09, Fishbone, EU:T:2011:550 the Court offered some guidance in this regard:

‘…although the use of the earlier mark does not appear to be quantitatively very extensive, the fact that the invoices are addressed to retailers in different cities in Greece proves that the use is sufficiently extensive to represent an effective and genuine commercial effort.’ (Paragraph 76).

Applying the rationale of the ‘Fishbone’ case, the EUTM proprietor’s evidence gains further reinforcement, since the invoices are for different towns in France, albeit from the same region, and the amounts per invoice are substantial.

It is worth noting that the licence agreement from February 2017 filed by the EUTM proprietor (Exhibit 5) shows that the EUTM proprietor now has an exclusive distributor in the Czech Republic. Taken together with the catalogues written in Czech, the licence agreement for the EUTM, and the sale of two houses in the Czech Republic, this evidence demonstrates an ambition on the part of the EUTM proprietor to expand the geographical market for the goods and services it promotes and sells under the EUTM.

The applicant also attacked the evidence for only containing 20 orders for the EUTM proprietor’s houses. However, the Court of Justice has made it clear that the nature of the market must be one of the factors to be taken into account when assessing the extent of the use. The overall value of the sales of houses in this case is in hundreds of thousands of euros, which is enough in the Cancellation Division’s view to justifiably conclude that the EUM proprietor was trying to gain a share of the relevant market, as opposed to just retaining the registration of its EUTM.

Consequently, the Cancellation Division is satisfied that the EUTM proprietor is meeting the terms of its obligation under the case law to commercially exploit the EUTM so as ‘to create or maintain market shares for the goods or services for which it was registered’.

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the EUTM for the following goods and services, for which it must, therefore, be revoked:

Class 19: Concrete building elements, floor boards, prepared wood, wood for building, non-metallic shutters, non-metallic building panels, cladding, not of metal, for building, building materials, not of metal non-metallic fillings for building openings, non-metallic plumbing elements, non-metallic building fittings, but not including rivets or fastening devices.

Class 37: Installation of doors and windows, building insulation, building insulating, plumbing, kitchen assembly, painting interiors and exteriors, construction information, construction and erection work, including all work surrounding the main building production and affiliated building productions, preparatory works for construction, construction and operation coordination, conducting individual construction works, building construction supervision, building maintenance.

Class 40: Wood-working (joinery, carpentry), i.e. sawing, saw mill planning, water proofing and drying wood and wooden semi-finished products, shaping, metal-working, custom assembly of materials for others.

The EUTM proprietor has proven genuine use for the remaining contested goods; therefore, the application is not successful in this respect.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 04/12/2017.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part of the contested services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Cancellation Division

Nicole CLARKE Rhys MORGAN Lucinda CARNEY

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.