Legero Schuhfabrik Gesellschaft mbH, Legero-United-Straße 4, 8073 Feldkirchen bei Graz, Austria (applicant), represented by Alexander Stolitzka, Kärntner Ring 12, 1010 Wien, Austria (professional representative)

a g a i n s t

Zena Health Limited, P.O. Box 179, 40 Esplanade, St Helier JE4 9RJ, Jersey (EUTM proprietor).

On 25/05/2020, the Cancellation Division takes the following


1. The application for revocation is upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 9 550 112 are revoked in their entirety as from 17/06/2019.

3. The EUTM proprietor bears the costs, fixed at EUR 1 080.


The applicant filed a request for revocation of European Union trade mark No 9 550 112

figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 5:

Sanitary preparations for medical purposes;  Plasters, materials for dressings; Material for stopping teeth, dental wax; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides;  Air deodorising preparations; Bracelets for medical purposes;  Contact lens cleaning preparations; Chemical contraceptives;  Remedies for perspiration;  to the extent the aforementioned goods do not fall within other classes.

Class 28:

Games and playthings;  Decorations for Christmas trees.

Class 35:

The bringing together for the benefit of others of a variety of goods, namely music, games and films (as CDs, DVDs and all other formats, including electronic formats and electronic downloadable formats) electronics and accessories, hardware, software, peripherals, telephones, mobiles, games and playthings, gymnastic and sporting articles, toys, cards, playing cards, books, publications, perfumes, cosmetics, toiletries, beauty goods, pharmaceutical preparations, dietetic substances adapted for medical use, health and dietary supplements, vitamins, candles, gifts and decorative items, household items and apparatus, furniture, garden and outdoor furniture, mirrors, picture frames, goods of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics, clothing, footwear and headgear, leather articles, watches and jewellery, timepieces, cars, vehicles and bicycles, travel goods, foods, drinks, wines, sparkling wines, alcoholic beverages, liqueurs, cider, spirits, cocktails and snacks; enabling consumers to conveniently view and purchase those goods in a general merchandise shop or in a department store as well as via a mail order catalogue, Internet website or via telecommunication.

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


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 21/10/2011.The revocation request was submitted on 17/06/2019. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 19/06/2019, 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 and services for which it is registered.

On 09/08/2019, the EUTM proprietor ‘s representative ceased to represent it, the other party was duly informed on the same day.

On 11/09/2019, the EUTM proprietor was requested to appoint a new representative according to Article 119 (2). The proprietor was also informed that if the deficiency was not remedied, the Office might decide on the request on the basis of the evidence before it.

On 12/11/2019, the communication of 11/09/2019 was returned to the Office. Consequently, the Office provided to publicly notify the EUTM proprietor in accordance with Article 98(4) EUTMR and Articles 56 and 59 EUTMDR and the Decision No EX-18-4 of 03/09/2018 of the Executive Director.

The EUTM proprietor was granted a new time limit to appoint a representative within the EU.

The EUTM proprietor did comply with the Office’s request nor did it 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 and services 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 17/06/2019.


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

Raphaël MICHE

Graziella MEDDE


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.

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