CANCELLATION No 17102 C (REVOCATION)
Vision Ophthalmology Group GmbH, Arheilger Weg 6, 64380 Roßdorf, Germany (applicant), represented by Eisenführ Speiser Patentanwälte Rechtsanwälte PartGmbB, Arnulfstr. 27, 80335 Munich, Germany (professional representative)
a g a i n s t
Provision Ophthalmic Oftalmik Ürünler Üretim ve Pazarlama Anonim Șirketi, Public Limited Company, Atatürk Mahallesi, Sülün Caddesi, Kamilbey sokak, No: 4 Ataşehir, Istanbul, Turkey (EUTM proprietor), represented by Curell Suñol S.L.P., Via Augusta 21, 08006 Barcelona, Spain (professional representative).
On 13/04/2018, 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 10 589 521 are revoked in their entirety as from 26/10/2017.
3. The EUTM proprietor bears the costs, fixed at EUR 1 080.
The applicant filed a request for revocation of European Union trade mark No 10 589 521 (figurative mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:
Class 5: Solutions for contact lenses; dietetic substances adapted for medical use, food for babies; plasters, materials for dres ...Show moresings, material for stopping teeth, dental wax, disinfectants, preparations for destroying vermin, fungicides, herbicides.
Class 9: Spectacles (glasses), sun glasses, lenses and their boxes, cases and parts.
Class 10: Intraocular lenses for surgical implantation.
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 18/10/2012. The revocation request was submitted on 26/10/2017. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.
On 03/11/2017, 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 for which it is registered. A request of extension of the time limit to submit proof of use from the EUTM proprietor was received by the Office on the 08/01/2018. The time limit to submit proof of use, originally due to expire on 08/01/2018 was extended until 08/03/2018.
The EUTM proprietor 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 proprietor, 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.
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
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.
The amount determined in the fixation of the costs may only be reviewed by a decision of the Cancellation Division on request. According to Article 109(8) EUTMR, such a request must be submitted within one month of the date of notification of this fixation of costs and will be deemed to be submitted only when the review fee of EUR 100 has been paid (Annex 1 A(33) EUTMR).