TVR Automotive Limited, Wentworth House, 4400 Parkway, Whiteley, Hampshire PO15 7FJ, United Kingdom (applicant), represented by Venner Shipley LLP, 200 Aldersgate, London EC1A 4HD, United Kingdom (professional representative)

a g a i n s t

Hans-Hermann Fischer, Versmolder Str. 21, 33790 Halle, Germany (EUTM proprietor), represented by Dr. Stohlmann Rechtsanwälte PartmbB, Am Bach 11, 33602 Bielefeld, Germany (professional representative).

On 25/10/2018, 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 10 297 406 are revoked in their entirety as from 31/07/2017.

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


The applicant filed a request for revocation of European Union trade mark registration No 10 297 406 for the word mark ‘Griffith’ (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 12: Vehicles and parts therefor.

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


The applicant filed a request for revocation on 31/07/2017 claiming that the EUTM proprietor has not put its EUTM to genuine use for a continuous period of five years in relation to all the goods for which it is registered.

The EUTM proprietor submitted observations on 06/10/2017. It argues that it has made genuine use of the mark ‘Griffith’ in the territory of the European Union for exclusive sports cars. It claims to have spent a significant amount of money for developing the vehicle models TVR Griffith 200 and TVR Griffith 400. According to the proprietor, three such vehicles were ordered by its customers in 2013 and the small-series production has been set to begin soon. Therefore, it concludes that it could not be considered that the EUTM has not been genuinely used.

In its observations of 07/11/2017, the applicant argues that the EUTM proprietor failed to adduce any evidence demonstrating that the contested trade mark was put to genuine use in the European Union during the relevant period. It states that the proprietor’s statements are not in the form of affirmed or sworn declarations and have not been supported by any documents. It concludes that genuine use is not proven by the EUTM proprietor.

The EUTM proprietor did not submit any further observations in response.


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 23/01/2012. The revocation request was filed on 31/07/2017. 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 31/07/2012 to 30/07/2017 inclusive, for the contested goods listed in the section ‘Reasons’ above.

On 02/08/2017, the Cancellation Division duly notified the EUTM proprietor of the application for revocation and gave it a time limit to submit evidence of use of the EUTM for all the goods for which it is registered.

On 06/10/2017 the EUTM proprietor submitted the observations described above in which it stated that it had made some use of the contested trade mark. However, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perceptions of a party involved in a dispute may be more or less affected by its personal interests in the matter. The probative value of such statements depends on whether or not they are supported by other types of evidence or evidence originating from independent sources. In the present case, the EUTM proprietor did not submit any supporting evidence of use that could give indications of the place, time, extent and nature of use of the contested trade mark for the goods for which it is registered. There are no documents that could confirm the EUTM proprietor’s statements that its goods have been already marketed or about to be marketed and for which preparations by the proprietor to secure customers are under way. Consequently, the EUTM proprietor’s statements cannot be verified and confirmed by any additional documents.

In accordance with Article 58(1)(a) EUTMR, the EUTM proprietor may either prove genuine use of the contested European Union trade mark or prove that there are justifiable reasons for non-use. These reasons cover circumstances arising independently of the EUTM proprietor’s will which prevent use of the contested European Union trade mark. In the present case, the EUTM proprietor did not claim to have any reasons that could justify non-use of the contested trade mark during the period concerned.


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.

It follows from the above that the EUTM proprietor has not proven genuine use of the contested EUTM for any of the goods for which it is registered nor it has provided any indications of proper reasons for non-use. As a result, the application for revocation is wholly successful and the contested EUTM must be revoked in its entirety.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 31/07/2017.


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 representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Catherine MEDINA



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.

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