CANCELLATION No 15378 C (REVOCATION)
Bech-Bruun Law Firm Interessentskab, Langelinie Allé 35, 2100 København Ø, Denmark (applicant), represented by Bech-Bruun Law Firm, Værkmestergade 2, 8000 Århus C, Denmark (professional representative)
a g a i n s t
Chirila-Rosa Dacian, Str. St. O. Iosif, nr. 1, ap. 26, Judetul Timis, 300117 Timisoara, Romania (EUTM proprietor).
1. The application for revocation is upheld.
2. The EUTM proprietor’s rights in respect of European Union trade mark No 10 699 114 are revoked in their entirety as from 03/08/2017.
3. The EUTM proprietor bears the costs, fixed at EUR 630.
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95 have been repealed and replaced by Regulation (EU) 2017/1001 (codification), Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431, subject to certain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from 14/05/2018, Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431 have been codified and repealed by Delegated Regulation (EU) 2018/625 and Implementing Regulation (EU) 2018/626.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 shall be understood as references to the Regulations currently in force, except where expressly indicated otherwise.
The applicant filed a request for revocation of European Union trade mark No 10 699 114 (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:
Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supe ...Show morervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; compact discs, DVDs and other digital recording media; mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment, computers; computer software; fire-extinguishing apparatus.
Class 35: Advertising; business management; business administration; office functions.
Class 36: Insurance; financial affairs; monetary affairs; real estate affairs.
Class 38: Telecommunications.
Class 42: Scientific and technological services and research and design relating thereto; industrial analysis and research service ...Show mores; design and development of computer hardware and software.
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 24/07/2012. The revocation request was submitted on 03/08/2017. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.
On 07/08/2017, 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 and services for which it is registered.
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 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 03/08/2017 for all the contested goods and services.
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. In the present case, as the applicant and its representative are the same, the applicant did not appoint a representative within the meaning of Article 120 EUTMR and, therefore, did not incur representation costs.
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).