CANCELLATION No 38 875 C (REVOCATION)
Eli Salis, Goleta 17, Esc. 2, 2do C, 03540 Alicante, Spain (applicant), represented by Disain IP, Calle Catedrático Abelardo Rigual, 10 - Bl. 1, Esc. 1, 5º B ,03540 Alicante, Spain (professional representative)
a g a i n s t
Evdoksia Vati, Mithimna (without number), 81108 Mytilene, Greece (EUTM proprietor), represented by Gina Bogdanou, Spetswn 22 and Ydras, 11362 Athens, Greece (professional representative).
On 17/11/2020, 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 12 530 201 are revoked in their entirety as from 16/10/2019.
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 12 530 201 (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:
Class 30 Coffee, teas and cocoa and substitutes therefor.
Class 32 Flavoured carbonated beverages; Waters; Juices; Other non-alcoholic beverages; Energy drinks [not for medical purposes]; Energy drinks containing caffeine; Isotonic drinks; Isotonic beverages [not for medical purposes]; Cocktails, non-alcoholic; Sports drinks; Energy drinks; Syrups for making non-alcoholic beverages.
Class 43 Provision of food and drink.
The applicant invoked Article 58(1)(a) EUTMR.
SUMMARY OF THE PARTIES’ ARGUMENTS
The proprietor confirms that she ‘informally granted’ the use of the EUTM to Melanas Zomos Single Member Private Company (hereinafter ‘Melanas Zomos’) ‘with the distinctive title Black Broth Nrg Drink M.Ike’. The purpose of the company was the production of fizzy or non-soft drinks and the wholesale of soft drinks and bottled water.
Starting mid 2014 the company had cooperated without success with different chemists in order to create an energy drink using ‘sea buckthorn oil’ (hereinafter called ‘the product’). They succeeded in 2016 together with Mr Christos Mandas, a chemist who completed the composition of the respective product. According to the proprietor the sale of the respective product began in Greece on 25/04/2017. In January 2017 the product’s recipe was also submitted to the Hellenic Industrial Property Organisation in the form of a patent application, which was published on 25/07/2018. However, the formula was not sufficiently stable to resist on the market (the sea buckthorn oil separating after some time from the rest of the drink). In 2018 after many efforts the technique was finally found to stabilise the appearance of the product. At the end of 2019 new samples of the product were given to be tested by the commercial partners including large supermarket companies. The proprietor states that ‘it is expected that the new product will soon be widely sold.’
The EUTM proprietor considers that she used the contested mark for goods in Class 32 since the product is an energy drink. Moreover energy drinks, isotonic drinks, energy boosting drinks, sports drinks, are the products that are definitely and directly linked to the use of the product created. Furthermore, the proprietor believes ‘that the application for revocation should be rejected for the products of both Class 30 coffee, tea and cocoa products and Class 43 food and drink provision, as they have an indirect link to the products being distributed.’
Alternatively the EUTM proprietor invokes reasons for non-use. ‘These reasons relate to conditions that were independent of the proprietor’s will and consisted of the fact that, despite the proprietor’s efforts to produce a product that would satisfy the consumer’s needs and be commercially viable, that was difficult and as a result that product did not have a big commercial distribution.’ The EUTM proprietor refers to the whole process of manufacturing the special formula of the energy drink that had to be stabilised, a process that lasted several years. In summary, this process was interrupted by periods of distribution of the product which alternated with periods of improvement of the beverage’s formula and by periods of supervision of the degree of stabilisation of this revised formula.
The proprietor filed evidence of use of her mark which will be listed and analysed in the following section of the decision.
The applicant considers that the EUTM proprietor’s evidence is insufficient to prove the genuine use of the mark for all the contested goods and services or that there were proper reasons for non-use for the following reasons:
The submitted evidence refers exclusively to an energy drink, whereas no evidence has been submitted in relation to the other goods and services covered by the mark in Classes 30, 32 and 43;
The sales invoices issued by the ‘licensee’ (Melanas Zomos) refer to sales of only 392 ‘BLACK BROTH’ energy drinks during the relevant time period. Such a limited extent of use is not sufficient to support the genuine use of the mark, all the more so considering the great size of the energy drinks market;
The sales invoices and delivery notes addressed to the Licensee and related to ingredients intended to prepare soft drinks do not contain any indication that these ingredients were specifically intended for the preparation of the respective drink, therefore they do not prove any preparatory acts expressly related to the product and the contested mark;
The product bears a different version of the mark which alters the distinctive character of the EUTM as registered;
The alleged technical difficulties in the creation of the final product do not constitute proper reasons for non-use of the mark.
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.
Genuine use of a trade mark exists where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services. Genuine use requires actual use on the market of the registered goods and services and does not include token use for the sole purpose of preserving the rights conferred by the mark, nor use which is solely internal (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, in particular § 35-37, 43).
When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 38). However, the purpose of the provision requiring that the earlier mark must have been genuinely used ‘is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks’ (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 38).
According to Article 19(1) EUTMDR in conjunction with Article 10(3) EUTMDR, the indications and evidence of use must establish the place, time, extent and nature of use of the contested trade mark for the goods and/or services for which it is registered.
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 31/07/2014. The revocation request was filed on 16/10/2019. 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 16/10/2014 to 15/10/2019 inclusive, for the contested goods and services listed in the section ‘Reasons’ above.
On 04/04/2020 the EUTM proprietor submitted evidence as proof of use.
The evidence to be taken into account is the following:
1. Solemn declaration by the proprietor of the EUTM, Evdoksia Vati, dated 19/03/2020 in which the proprietor states that she has granted the use of the EUTM to the company Melanas Zomos.
2. The announcement dated 24/05/2016, of the commercial register, about an amendment of the statute of the company using the challenged mark. It is stated that on the same date the Assembly ‘codified and renumbered the statue of the private company under the brand name Salzak Single Member P.C and the distinctive title Salzak SMPC’ and that ‘the new brand name is defined in MELANAS ZOMOS SINGLE MEMBER P.C.’ (the proprietor explains that this stands for Private Company) ‘under the distinctive title BLACK BROTH NRG DRINK Single Member P.C.’
3. The order confirmation No. 269 800 of 25/07/2016 of materials by Astron Chemicals SA which has been issued in the name of the company Melanas Zomos for the materials Black Blend and Gold Shimmer for a total of EUR 3 664.
4. Sales invoice - delivery note No 10 115 667 of 28/07/2016 from Astron Chemicals SA to Melanas Zomos, related to the sale and shipment of Black Blend and Gold Shimer materials mentioned in Item 3. The proprietor explains that these materials were intended for the preparation of the product and that give to the product the characteristic black colour with gold reflections.
5. Invoice No 051 237 of 14/09/2016 from 520 Barcode Hellas company, which allegedly relates to the creation of the Barcode of the product and has been issued in the name of the company Melanas Zomos. The EUTM is not mentioned in the document.
6. The delivery note dated 23/11/2016 for materials sampling for the production of the product by WILD Great Taste company, located in Berlin, Germany, and issued in the name of Black Broth Single M.P. Company.
7. Invoice - delivery note No 002 of 09/01/2017 of Hippophaes Hellas SA for Melanas Zomos for the sale and shipment of 2 litres of ‘sea buckthorn oil’.
8. Invoice – delivery note No 68 of 31/01/2017 from Benforado company for Melanas Zomos related to the sale and shipment of materials for the preparation of the product.
9. Delivery note of materials, dated 03/03/2017, issued by Gea Solutions company on behalf of Azelis Hellas SA for Melanas Zomos. The proprietor explains that these materials (chemicals) have been used for the preparation of the product.
10. Sales invoice No 14389 of 13/03/2017 issued by Azelis company to Melanas Zomos and which relates to the sale of materials for the creation of the product.
11. Sales invoice - delivery note No 10 136 353 of 14/03/2017 issued by Astron Chemicals SA to Melanas Zomos, for the sale and shipment of 300 kg (value EUR 5 580) of polivitamins allegedly for the preparation of the product.
12. Sales invoice No 396 of 29/03/2017 of the Antopack Printing and Packaging Industry for Melanas Zomos, related to the sale of packaging labels for BLACK BROTH (front and back side).
13. Shipping document No 789 of 31/03/2017 of some materials: sugar, citric acid, potassium sorbate, sodium benzoate, bottle, bottle caps, paper disks, glue, glue for cartons and plastic spirals (the proprietor explains they were intended for the preparation of the product). The document is issued by Theod. Kliafa Fridges SA for Melanas Zomos.
14. Invoice No 0029 of 31/03/2017 issued by Theod. Kliafa Fridges SA for Melanas Zomos, related to ‘rendered services for production and bottling of the new product BLACK BROTH’ for the amount of EUR 2 104,78.
15. Sales invoice No 457 of 31/03/2017 issued by Theod. Kliafa Fridges SA for Melanas Zomos relating to the same materials of item 13 for the amount of EUR 2 788.52.
16. Invoice No 248 of 30/11/2017 issued by Antopack Printing and Packaging Industry for Melanas Zomos relating to the discount for the production of product ‘s labels.
17. to 27. Sales invoices dated two on 25/04/2017 (for 24 items each in total EUR 64.28), one on 07/06/2017 (24 items for EUR 32.14), one on 05/01/2018 (24 items with 50% discount, in total EUR 16.07), one on 19/01/2018 (120 items with 60% discount for a total of EUR 65.74), one on 16/04/2018 (72 packets for EUR 785.66), one on 17/05/2018 (24 items all with almost 100% discount for EUR 0.30), one on 22/05/2018 (5 boxes for EUR 59.52), one on 05/07/2018 (72 boxes for a total of EUR 785.66), 11/09/2018 (1 box for EUR 16.62) and one of 27/11/2018 (2 boxes at 99% discount for a total of EUR 0.25). The invoices are issued by Melanas Zomos to customers from Greece (kiosks, café-bar-pastry shops, canteens, wholesale, mostly in Larissa, and one in each of the following cities Trikala, Peristeri - Athens and Kato Petralona – Athens). The image on top of the invoices is the following:
28. An affidavit of the food chemist, Christos Mantas, issued in Edessa on 16/03/2020 in which the witness testified inter alia the following: page 2 << In the middle of 2016 I started as a chemist, to be involved in the composition of an energy drink. The trade mark of this product had the word mark ‘ ‘300 ‘s Black Broth Melas Zomos ‘ ‘ and the figure mark of a helmet of ancient Greeks and was registered in the name of Evdoksia Vati, but the use of the product belonged to the company ‘ ‘ MELANAS ZOMOS SINGLE MEMBER PRIVATE COMPANY SMPC. ‘ ‘ with the distinctive title of ‘ ‘BLACK BROTH NRG DRINK M.IKE ‘ ‘ ……..page 3 <<During the years of 2017 and 2018 the company launched some products in Greece and in particular in Larissa, Kefalonia and Corfu with the aim of distributing them to the rest of Greece and then abroad, if the product had a success’.
29. An affidavit of the entrepreneur Gerasimos Kekatos signed on 18/03/2020 in which the witness testified inter alia the following : page 2 <<In 2017 I met Mr. Spyridon Ringas, whom I knew from our past collaborations. Mr. Ringas told me that he was collaborating with the company ‘MELANAS ZOMOS Single Member Private Company’, based in Larissa, which produced an energy drink with the word mark ‘300 ‘s Black Broth Melas Zomos’ and the figurative mark of a helmet of ancient Greeks’.
30 Internet printouts regarding the promotion and advertising of the product particularly on Facebook between 27/05/2016 to 07/12/2018.
31 Patent application, which was published on 25/07/2018. The application was registered in the name of Elias Kelesidis, partner of MELANAS ZOMOS according to the EUTM proprietor.
Assessment of genuine use – factors
As already mentioned above, the indications and evidence required in order to provide proof of use must consist of indications concerning the place, time, extent and nature of use of the trade mark for the relevant goods and/or services.
These requirements for proof of use are cumulative (judgment of 05/10/2010, T-92/09, STRATEGI, EU:T:2010:424, § 43). This means that the EUTM proprietor is obliged not only to indicate but also to prove each of these requirements. However, the sufficiency of the indication and proof as to the place, time, extent and nature of use has to be considered in view of the entirety of the evidence submitted. A separate assessment of the various relevant factors, each considered in isolation, is not suitable (judgment of 17/02/2011, T-324/09, Friboi, EU:T:2011:47, § 31).
In respect of the time and the place of use, the evidence must show that the contested EUTM has been genuinely used in the relevant period (i.e. from 16/10/2014 to 15/10/2019 inclusive) and in the relevant territory (EU).
As regards the nature of use, the expression ‘nature of use’ includes evidence of the use of the sign as a trade mark in the course of trade, evidence of the use of the mark as registered and evidence of its use for the goods and services for which it is registered.
Finally, concerning the extent of use, it is settled case-law that account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (e.g. 08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35). Furthermore, the Court has held that ‘[u]se of the mark need not … always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or service concerned on the corresponding market’ (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 39). The assessment of genuine use entails therefore a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Likewise, the territorial scope of the use is only one of several factors to be taken into account, so that a limited territorial scope of use can be counteracted by a more significant volume or duration of use. The evidence cannot be assessed in absolute terms but must be assessed in relation to other relevant factors. In this respect, the evidence should be viewed in relation to the nature of the goods and services and the structure of the relevant market (30/04/2008, T‑131/06, Sonia Sonia Rykiel, EU:T:2008:135, § 53).
In the present case, in order to show the genuine use of the contested mark, the EUTM proprietor submitted the above described evidence. Nevertheless, when considered in detail and then viewed as a whole, it does not allow the Cancellation Division to reach a conclusion that the mark was genuinely used in relation to the contested registered goods and services, especially as regards the extent of use.
From the outset it is noted by the Cancelation Division that the evidence relates exclusively to the use of the EUTM (letting aside whether or not the contested EUTM was used in accordance with Article 18(1)(a) EUTMR) in connection with energy drinks. There is no evidence whatsoever as regards the goods in Class 30 Coffee, teas and cocoa and substitutes therefor, or as regards the services in Class 43 provision of food and drink. The EUTM proprietor and/or the producing company Melanas Zomos do not provide food and drinks to third parties as a service. Melanas Zomos is just a manufacturer of beverages which subsequently retails its goods; it does not emerge from the evidence that it also provides other beverages or foodstuffs for third parties under the contested mark (in the sense of catering services or bar services etc). Furthermore, the EUTM proprietor has not filed any evidence in relation to waters; juices; syrups for making non-alcoholic beverages, cocktails, non-alcoholic, or the remaining goods, apart from energy drinks which may fall under or overlap with one or several broad categories of the contested goods in Class 32 (other non-alcoholic beverages; flavoured carbonated beverages etc.). However, this aspect is irrelevant since the Cancelation Division considers that the extent of use of the EUTM for the only goods the evidence refers to, energy drinks, is insufficient.
For example, part of the evidence originates from the EUTM proprietor (the declaration of the proprietor at Item 1 and the evidence from the social media account associated with the agreed user of the contested mark, Item 30) which endows it with less probative strength than material produced by third parties.
With particular reference to the probative value of the proprietor’s declaration, it is well-established in the case-law that a declaration, even if sworn or affirmed in accordance with the law under which it is rendered must be corroborated by 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 a statement depends first and foremost on the credibility of the account it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on the face of it, the document appears sound and reliable (judgment of 07/06/2005, T-303/03, Salvita, EU:T:2005:200, § 42).
Furthermore, it follows from the case-law that, where a statement has been established for the purposes of Article 97(1)(f) EUTMR by persons within the sphere of the proprietor of the mark, probative value can be attributed to that statement only if it is supported by other evidence (see, to that effect, judgments of 13/05/2009, T‑183/08, Jello Schuhpark II, EU:T:2009:156, § 39, of 13/06/2012, T‑312/11, Ceratix, EU:T:2012:296, § 30 and § 50 and of 12/03/2014, T‑348/12, Sport TV Internacional, EU:T:2014:116, § 33).
In other words, the final outcome depends on the overall assessment of the evidence in the particular case. 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 view of the foregoing, the remaining evidence must be assessed in order to see whether or not the content of the affidavit is supported by the other items of evidence.
The evidence further contains two affidavits one given by the chemist who managed to stabilise the formula of the product and one from an entrepreneur. In the first affidavit the chemist confirms the history of the product as depicted by the proprietor. In the second, the entrepreneur tells how he found out about the new product in 2017 from another collaborator of Melanas Zomos who gave him some samples which proved not to have the ‘specifications needed to satisfy customer’s expectations’ as the oil got separated after some time from the rest of the drink and ‘The top of the drink would become greasy and its appearance would fade. Also the product had a black appearance with gold particles inside, after some time when it was given to me, the black colour of the drink altered, blurred and the gold particles disappeared. That is to say, its appearance was not stable over the time. So, I told him that I could not trade it at this form. At the end of 2019 he gave me new samples telling me that the issues that were existed are now resolved. Indeed, it seems that the product’s form is now stable, but I am not trading it yet because I have to wait a few months to be sure that its appearance will not alter again.’
It appears from the affidavits filed as Items 28 and 29 that indeed there were some quality problems that the product had in terms of its chemical formula before 2016 and after that and even after the new chemist took over the case and managed to stabilise the formula of the drink and it seems that these problems have extended up until 2019. There is some evidence that the company Melanas Zomos tried to enter on the Greek market with the respective product but did not succeed because of the above quality issues. In this sense there is some evidence consisting of invoices for purchasing ingredients for allegedly the new product under the contested mark. The respective ingredients are customary for non-alcoholic drinks and the Cancellation Division will have to assume that they were used for the creation of the new energy drink. There are also few invoices for goods Melanas Zomos sold to some clients, eight in Larisa where the drink is produced, two in Athens’ neighbourhood and one in Trikala amounting to a total of EUR 1 760.5 for a period of 1 year and 7 months within the relevant period. Taking into account the price of such goods (which is a bit more than 1 euro per can) the amount is clearly insufficient to consider that the contested mark was genuinely used. Some of these invoices show discounts of 99% which suggest that such goods were in fact offered as samples.
Nevertheless, there is no evidence to show that the product was ever put on sale at all in other parts of Greece, apart from being distributed in small numbers in the abovementioned Greek localities, let alone in other parts of the EU. It is also true that as regards the extent of use, apart from the territory, the degree and frequency of use of a mark should be taken into consideration. Nevertheless, the Cancelation Division finds both degree and frequency to be vanishingly small in this case, whereas the territory is restricted to just one city of less than 125 000 people and other 3 other small places in Greece.
In the judgment of the CJEU in Minimax (11/03/2003, C-40/01, EU:C:2003:145, § 36 & 37), the Court stated that genuine use must be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark. Such use must be consistent with the essential function of a trade mark, which is to guarantee the identity of the origin of goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin.
The Court went on to state that use of the mark must therefore relate to goods or services already marketed or about to be marketed and for which preparations by the undertaking to secure customers are under way, particularly in the form of advertising campaigns.
In the present case there are no turnover figures, no information about investments in preparative work for the development of the product other than a copy of a patent application (to the extent where such could be even deemed to fall broadly speaking under the umbrella of such preparative works).
The proprietor submitted printouts from what appears to be the Melanas Zomos’ social media account where some advertisements were published for the new product. However, there is no information from independent sources about the extent of such advertisement campaigns, about the investment made in advertising etc.
In order to examine, in a given case, whether use of the earlier mark is genuine, an overall assessment must be made taking account of all the relevant factors in the particular case. That assessment implies a certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under that trade mark may be compensated for by high intensity of use or a certain constancy regarding the time of use of that trade mark or vice versa (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 36). However, such balance is not present here.
Therefore, it is considered that the evidence of the extent of use is insufficient. It follows from the above that the EUTM proprietor has clearly failed to prove genuine use of the contested mark.
As one of the cumulative requirements is not fulfilled, there is no need to examine the evidence from the perspective of the remaining applicable factors.
Assessment of the EUTM proprietor’s claim of proper reasons for non-use
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.
The proprietor stated that alternatively the Cancelation Division should consider the above mentioned problems in stabilising the product’s formula as proper reasons for non-use.
In that regard, it should be recalled that, according to the case-law, only obstacles which have a sufficiently direct relationship with a trade mark, making its use impossible or unreasonable, and which arise independently of the will of the proprietor of that mark, may be described as ‘proper reasons’ for non-use of that mark. A case-by-case assessment is necessary in order to determine whether a change in the strategy of the undertaking with a view to circumventing the obstacle under consideration would make the use of that mark unreasonable (17/03/2016, C‑252/15 P, SMART WATER, EU:C:2016:178, § 96 and the case-law cited).
Compliance with the applicable rules is inherent in any commercial activity and cannot, unless a particularly broad interpretation of the concept of ‘proper reason for non-use’ is to be adopted, justify the absence of genuine use during the relevant period. Further, the problems associated with the manufacture of the products of an undertaking form part of the commercial difficulties encountered by that undertaking. As already explained above according to the case-law, the concept of proper reasons refers to circumstances unconnected with the trade mark proprietor rather than to circumstances associated with his commercial difficulties (18/03/2015, T‑250/13, SMART WATER, EU:T:2015:160, § 66 and the case-law cited). Consequently, the problems encountered by the manufacturer in stabilising the formula of the energising drink or the years necessary for experiments or tests for this product cannot be accepted as justifications for non-use pursuant Article 58(1)(a) EUTMR.
It follows from the above that the EUTM proprietor has not proven genuine use of the contested EUTM for any of the goods and services for which it is registered, nor she proved that she had valid 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 16/10/2019.
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, she 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
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.