CANCELLATION No 37 586 C (REVOCATION)

FH Services Limited, Fulwood House, 12 Fulwood Place, London WC1V 6HR, United Kingdom (applicant), represented by Beck Greener LLP, Fulwood House, 12 Fulwood Place, London WC1V 6HR, United Kingdom (professional representative)

a g a i n s t

James Briggs (IP) Limited, 4 Howarth Court, Gateway Crescent, Chadderton, Oldham, Lancashire OL9 9XB, United Kingdom (EUTM proprietor), represented by Wilson Gunn, 5th Floor, Blackfriars House, The Parsonage, Manchester M3 2JA, United Kingdom (professional representative).

On 20/11/2019, 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 10 917 714 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 10 917 714 (figurative mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

	Class 2:	Paints, varnishes, lacquers; preservatives against rust; colorants; raw natural resins;  coatings in the nature of paints for use on vehicles; coatings in the nature of sprays (paints); coatings (paints);  coatings being inorganic paints; spray-on paints.
	Class 3:	Cleaning, polishing, scouring and abrasive preparations; soaps, hand soaps, liquid hand soaps, hand washes, hand cleaning products;  pre-moistened paper hand cleaning towels and towelettes; pre-moistened towels and towelettes for multi-purpose cleaning, deodorizing; pre-moistened towels and towelettes for use in connection with polishing of metals and cleaning and protecting vinyl, rubber and leather; polishes; automobile waxes; automobile washes; automobile shampoos; coatings being inorganic (waxes or oils);  dashboard/trimsheen cleaner (perfumed); water emulsifiable degreaser; water emulsifiable tar remover; brake/clutch cleaner; non-chlorinated brake and clutch cleaner; carburettor cleaner (for external grime and residues); upholstery cleaner; tyre cleaners; foam cleaner for wheels and trims; glass & mirror cleaner; wash and wax detergent; alkaline based detergent power wash suitable for automotive and industrial applications; paint and gasket stripper (chlorinated).
	Class 5:	Sanitisers; pre-moistened towels and towelettes for disinfecting.

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 01/11/2012. 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 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 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 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 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 22/08/2019. An earlier date, on which one of the grounds for revocation occurred, may be fixed at the request of one of the parties. In the present case, the applicant has requested an earlier date. However, in exercising its discretion in this regard, the Cancellation Division considers that it is not expedient in this case to grant this request, since the applicant has not shown sufficient legal interest to justify it.

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

Cindy BAREL

Sabine HACKSTOCK

Richard BIANCHI

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.