CANCELLATION No 37 659 C (REVOCATION)

Skins IP Limited, Unit A, Brook Park East, Shirebrook NG20 8RY, United Kingdom (applicant), represented by Lane IP Limited, The Forum, St Paul’s, 33 Gutter Lane, London EC2V 8AS, United Kingdom (professional representative)

a g a i n s t

Skins International Trading AG, Sennweidstr. 43, 6312 Steinhausen, Switzerland (EUTM proprietor), represented by Keltie Limited, Galway Technology Centre, Mervue Business Park, Galway, Ireland (professional representative).

On 26/02/2020, the Cancellation Division takes the following

DECISION

1. The application for revocation is upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 10 030 922 are revoked in their entirety as from 22/08/2019.

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

REASONS

The applicant filed a request for revocation of European Union trade mark No 10 030 922 'TEAM SKINS' (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

	Class 18:	Bags, including bags of leather and imitation leather; athletic bags; beach bags; backpacks; handbags; hydration packs; knapsacks; luggage; purses; wallets; key cases; satchels; shoulder bags; sports bags including all-purpose sports bags; bottle bags; boot bags; cricket bags; duffle bags; draw-string bags; football bags; gear bags; gym bags; holdalls; kit bags and team bags; travelling bags; umbrellas.
	Class 25:	Clothing, footwear, headgear; including clothing for men, women, children and babies; clothing for sports including cricket, cycling, football, golf, gymnastics, rugby and skiing; clothing for motorists and travellers; compression garments; underwear including compression underwear; outerwear, overcoats, leisure clothing; jackets; jumpers; pullovers; sports jerseys; vests; shirts; T-shirts; pants; padded clothing; including padded clothing for men, women, children and babies; padded clothing for sport; trousers; shorts; pyjamas; dressing gowns; bath robes; swimwear including bathing trunks and bathing suits; thermal clothing; wetsuits; waterproof clothing; wrist bands; shoes and boots including football shoes and boots, gymnastic shoes, other sports shoes and boots; socks, stockings, tights, including, compression socks and stockings; bandannas and headbands.
	Class 35:	Retail, wholesale, mail order, e-commerce, sale and distribution and advisory services for: surgical and medical garments, compression garments, therapeutic compression garments, stockings, elastic supports, including elastic supports for stabilising injured areas of the body, bags, including bags of leather and imitation leather, beach bags, backpacks, handbags, hydration packs, knapsacks, luggage, purses, satchels, shoulder bags, sports bags including all-purpose sports bags, ball bags, bottle bags, boot bags, cricket bags, duffle bags, draw-string bags, football bags, gear bags, gym bags, holdalls, kit bags and team bags, travelling bags, wallets, textile and textile goods, bath linen, bed covers, bed sheets and bed clothes, cushion covers, pillowcases, rugs, sheets, sleeping bags, table covers and linen, towels including sports towels, beach towels and bath towels, clothing, footwear, headgear, including clothing for men, women, children and babies, clothing for sports including cricket, cycling, football, golf, gymnastics, rugby and skiing, clothing for motorists and travellers, compression garments, underwear including compression underwear, outerwear, overcoats, leisure clothing, jackets, jumpers, pullovers, sports jerseys, vests, shirts, T-shirts, pants, trousers, shorts, pyjamas, dressing gowns, bath robes, swimwear including bathing trunks and bathing suits, thermal clothing, wetsuits, waterproof clothing, wristbands, shoes and boots including football shoes and boots, gymnastic shoes, other sports shoes and boots, socks, stockings, tights, bandannas and headbands, padded clothing, including padded clothing for men, women, children and babies, padded clothing for sport, sports guards including chest protectors, shin pads, knee pads and elbow pads; advertising services; marketing services; promotional services; sponsorship services in the nature of marketing or promotional services; organising competitions.

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

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 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 09/11/2011.The revocation request was submitted on 22/08/2019. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 03/09/2019, 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 04/11/2019 the EUTM proprietor requested an extension of time limit for another two months which was duly granted by the Office on 05/11/2019.

The EUTM proprietor did not 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 22/08/2019.

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 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

Arkadiusz GORNY

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.