AJM | Decision 0013741
Date Published: Sep 28, 2017
CANCELLATION No 13 741 C (REVOCATION)
Fashion TV Brand Holdings C.V., Keizersgracht 62, 1015 CS Amsterdam, The Netherlands (applicant),
a g a i n s t
AJM Okna-Vrata-Seneila d.o.o. (EUTM proprietor), Kozjak na Pesnico 2/a, 2211 Pesnica pri Mariboru, Slovenia.
On 08/03/2017, 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 5 880 927 are revoked in their entirety as from 14/09/2016.
3. The EUTM proprietor bears the costs, fixed at EUR 630.
REASONS
The applicant filed a request for revocation of European Union trade mark No 5 880 927 ‘’ (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:
Class 6: Windows of metal; doors of metal; jalousies of metal; building materials of metal; steel buildings; locks of metal, other than electric; hooks [metal hardware]; buildings, transportable, of metal; shutters of metal; door openers, non-electric; window pulleys; sills of metal; window stops of metal; window frames of metal; sash pulleys; window casement bolts; casement windows of metal; door fittings, of metal; fittings of metal for windows; roller blinds of steel; strap-hinges of metal (for windows and doors); runners of metal for sliding doors; door panels of metal; door frames of metal; door bolts; door stops of metal; door closers, non-electric; latch bars of metal; ironwork for windows; ironwork for doors.
Class 19: Insulating glass [building]; construction materials, not of metal; folding doors, not screens not of metal; window frames, not of metal; window glass, except glass for vehicle windows; stained-glass windows; casement windows, not of metal; windows, not of metal; partitions, not of metal; mouldings, not of metal, for building; blinds [outdoor], not of metal of metal; timber (worked); porches, not of metal, for building; lintels, not of metal; insect and not of textile; works of art of stone, concrete or marble; doors, not of metal ; door frames, not of metal; door panels, not of metal; arbours [structures]; buildings, not of metal; buildings, transportable, not of metal; jalousies, not of metal.
Class 20: Curtain rods; curtain holders, not of textile material; curtain rails; locks, other than electric, not of metal; indoor window blinds [shades] [furniture]; window fittings, not of metal; door fittings, not of metal; hinges, not of metal; latches, not of metal; slatted indoor blinds.
Class 35: Distribution of samples; publication of publicity texts; organization of exhibitions for commercial or advertising purposes; organization of trade fairs for commercial or advertising purposes; commercial or industrial management assistance; business research; business inquiries; demonstration of goods; advertising; business consultancy (professional); marketing studies; import-export agencies; sales promotion for others; procurement services for others [purchasing goods and services for other businesses]; public relations; commercialization of metal windows, doors of metal, jalousies of metal, building materials of metal, steel buildings, locks of metal, other than electric, hooks [metal hardware], buildings, transportable, of metal, shutters of metal, door openers, non-electric, window pulleys, sills of metal , window stops of metal, window frames of metal, sash `pulleys, window casement bolts, casement windows of metal, door fittings of metal, fittings of metal for windows, roller blinds of steel, strap-hinges of metal (for windows and doors), runners of metal for sliding doors, door panels of metal, door frames of metal, door bolts, door stops of metal, door closers non-electric, latch bars of metal, iron work for windows, ironwork for doors, insulating glass [building], construction materials, not of metal, folding doors, not of metal, shutters, not of metal, window frames, not of metal, window glass, except glass for vehicle windows, stained-glass windows, casement windows, not of metal, mouldings, not of metal, for building, blinds [outdoor], not of metal and not of textile, timber (worked), porches, not of metal, for buildings, lintels, not of metal, insect screens not of textile, works of art of stone, concrete or marble, doors not of metal, door frames, not of metal, door panels, not of metal, arbours [structures], buildings, not of metal, buildings, transportable, not of metal, jalousies, not of metal, curtain rods, curtain holders, not of textile material, curtain rails, locks, other than electric, not of metal, indoor window blinds [shades] [furniture], window fittings, not of metal, door fittings, not of metal, hinges, not of metal, latches, not of metal, slatted indoor blinds.
Class 37: Building construction supervision; installation, maintenance and repair of doors, windows and shades; building sealing.
Class 39: Carting; packaging of goods; storage of goods; wrapping of goods; delivery of goods; freight forwarding.
Class 42: Architecture; physics [research]; industrial design; engineering; quality control; construction drafting; material testing; project studies (technical ); mechanical research; technical research; engineering; computer programming.
The applicant invoked Article 51(1)(a) EUTMR.
GROUNDS FOR THE DECISION
According to Article 51(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 23/06/2008. The revocation request was filed on 14/09/2016. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.
On 28/10/2016, the Cancellation Division duly notified the EUTM proprietor of the application for revocation and gave it a time limit of three months to submit evidence of use of the EUTM for all the goods and services for which it is registered. This time limit expired on 28/01/2017.
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 Rule 40(5) EUTMIR, if the proprietor of the European Union trade mark does not provide 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 55(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 14/09/2016.
COSTS
According to Article 85(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 Rule 94(3) and (6) EUTMIR and Rule 94(7)(d)(iii) 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 the applicant did not appoint a representative within the meaning of Article 93 EUTMR and, therefore, did not incur representation costs.
The Cancellation Division
Claudia SCHLIE | Raphaël MICHE | José Antonio GARRIDO OTAOLA |
According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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.
The amount determined in the fixation of the costs may only be reviewed by a decision of the Cancellation Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month of the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 has been paid (Annex 1 A(33) EUTMR).