CANCELLATION No 19602 C (REVOCATION)

Shandong Lede Machinery CO., LTD., No. 3998, West Waihuan N. Road, Weicheng District, Weifang City, Shandong Province, People's Republic of China (applicant), represented by Arcade & Asociados, C/ Isabel Colbrand, 6 - 5ª planta, 28050 Madrid, Spain (professional representative)

a g a i n s t

Jianchun Tian, No.265 Da Tiangong Village, Xiaozhi Town, Pingyin, Shandong Province Pingyin, and Liping Zhan, No.1001 Zhang Xiaoshan Village, Xiaozhi Town, Pingyin, Shandong Province Pingyin, People's Republic of China (EUTM proprietors) represented by D'Agostini Organizzazione S.L., San Telmo 7, 03002 Alicante, Spain (professional representative).

On 24/08/2018, the Cancellation Division takes the following

DECISION

1. The application for revocation is upheld.

2. The EUTM proprietors rights in respect of European Union trade mark No 9 947 714 are revoked in their entirety as from 01/02/2018.

3. The EUTM proprietors bear the costs, fixed at EUR 1 080.

REASONS

T he applicant filed a request for revocation of European Union trade mark No 9 947 714 (figurative mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 6: Elbows of metal for pipes; junctions of metal for pipes; valves of metal [other than parts of machines]; pipework of metal; collars of metal for fastening pipes; clips of metal for pipes; water-pipe valves of metal; manifolds of metal for pipelines; steel pipes; gutter pipes of metal.

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

PRELIMINARY REMARK

As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain transitional provisions. Further, as from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626. All the references in this decision to the EUTMR, EUTMDR and EUTMIR should be understood as references to the Regulations currently in force, except where expressly indicated otherwise.

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 proprietors 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 proprietors 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 31/08/2011. The revocation request was submitted on 01/02/2018. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 23/05/2018, the Cancellation Division duly notified the EUTM proprietors 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.

The EUTM proprietors did not submit any observations or evidence of use in reply to the application for revocation within the 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 proprietors, 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 proprietors’ rights must be revoked in their entirety and deemed not to have had any effects as from 01/02/2018.

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 proprietors are 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

Cindy BAREL

Claudia SCHLIE

José Antonio GARRIDO OTAOLA

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.