FRESHLY | Decision 0012191 | Trademarkers LLC

FRESHLY | Decision 0012191

Date Published: Oct 1, 2017

CANCELLATION No 12191 C (REVOCATION)

Harmsen Utescher Rechtsanwalts- und Patentanwaltspartnerschaft mbB, Neuer Wall 80, 20354 Hamburg, Germany (applicant)

a g a i n s t

Orient Provision & Trading Co. Ltd., P.O. Box 11035, Jeddah 21453, Saudi Arabia (EUTM proprietor), represented by Groom Wilkes & Wright LLP, The Haybarn, Upton End Farm Business Park, Meppershall Road, Shillington, Hitchin, Hertfordshire SG5 3PF, the United Kingdom (professional representative).

On 08/06/2017, the Cancellation Division takes the following

DECISION

1. The application for revocation is partially upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 4 659 983 are revoked as from 07/12/2015 for part of the contested goods, namely:

Class 29: Meat, other than canned meat; fish; poultry, other than canned chicken; meat extracts; jellies, jams; eggs; edible oils, other than olive oils; edible fats.

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, pastry, and confectionery, ices; honey, treacle, yeast, baking-powder; salt, mustard; sauces (condiments); spices; ice.

Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

3. The European Union trade mark remains registered for all the remaining goods, namely:

Class 29: Canned meat; poultry, namely canned chicken; preserved, dried and cooked fruits and vegetables; fruit sauces; olive oils.

Class 30: Vinegar.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 4 659 983 (figurative mark) (the EUTM). The request is directed against all the goods covered by the EUTM, namely:

Class 29: Meat, fish, poultry; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs; edible oils and fats.

Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

The applicant invoked Article 51(1)(a) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant filed a request for revocation on 07/12/2015 claiming that the EUTM proprietor has not put its European Union trade mark registration to genuine use for a continuous period of five years.

The EUTM proprietor submitted observations and evidence of use (Exhibits 1 to 6, listed below) on 08/03/2016, thus within the time limit. The EUTM proprietor argues that it made genuine use of the mark in a substantial part of the territory of the EU for the relevant goods in Classes 29 and 30 during the relevant period. In particular, the EUTM proprietor notes that the trade mark was affixed to goods by private label firms in Italy, Spain and Bulgaria (by a Greek company) on behalf of the proprietor and then the goods were exported to Saudi Arabia. The EUTM proprietor filed, inter alia, invoices, labels, photographs, sales figures and shipping documents and argues that the mark has been used for a number of goods such as olives, peeled tomatoes, pear halves in syrup, balsamic vinegar, chick peas, olive oil, etc. Therefore, the mark has been used during the relevant period in the EU in respect of the goods as registered in Classes 29 and 30.

The applicant argues that the different items of evidence are only partially sufficient to prove the genuine use of the contested EUTM for only some of the goods. According to the applicant some of the evidence, such as the printouts from websites, some of the invoices and the undated labels and photographs, are of no value. In addition, the invoices are dated only in 2015. In the applicant’s view, the documentation which was presented, is for the most part not convincing and the mark is only used for the goods ‘fruit cocktails’, because the invoices are in conformity with the dated labels and the sales value is appropriate. The request for revocation should be upheld for the remaining goods.

In reply, the EUTM proprietor filed additional observations and evidence. It argues that the evidence filed initially is of legal value and should be looked at together in combination. Furthermore, use has been shown for a number of goods extending far beyond ‘fruit cocktails’. The EUTM proprietor provides explanations in relation to the additional evidence (Exhibits 7 to 10) and argues that, as can be seen from the first witness statement and exhibits and the subsequent witness statement and exhibits, there has been substantial genuine use of the mark during the relevant period.

The applicant argues that it maintains its opinion that use of the contested mark has only been proven partially. The range of goods mentioned by the proprietor in the two witness statements is contradictory and the declarations by private label company employees have not been given under oath. The correspondence between 2010 and 2015 is of no legal value, as it is only correspondence regarding the labelling of goods and does not show relevant use of the mark. In conclusion, the applicant claims that use was only shown in relation to ‘fruit cocktails’ and the request for revocation should be upheld for the remaining goods covered by the contested mark.

In its observations in reply, the EUTM proprietor claimed that the two witness statements are not contradictory but are complementary, as more pieces of evidence became available at the time of making the second one. As regards the statements from individuals from private label companies, they are valid and acceptable evidence. There is sufficient evidence showing use for many more goods than only ‘fruit cocktails’. The application for revocation should be rejected.

On 19/04/2017, the Cancellation Division notified the parties that the adversarial part of the proceedings was closed and that a decision would be taken in due course.

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.

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 and 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 Rule 40(5) EUTMIR in conjunction with Rule 22(3) EUTMIR, the indications and evidence for the furnishing of proof of use must consist of indications concerning the place, time, extent and nature of use of the contested trade mark for the goods and 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 29/10/2007. The revocation request was filed on 07/12/2015. 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 07/12/2010 to 06/12/2015 inclusive, for the following contested goods:

Class 29: Meat, fish, poultry; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs; edible oils and fats.

Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

On 08/03/2016 the EUTM proprietor submitted evidence as proof of use. The evidence consists of the following:

Witness Statement dated 07/03/2016 by Mr. Hamid Mohammed Osman Mohammed Ali, development manager of the EUTM proprietor company since 2002. According to the statement, the contested trade mark has been used in a substantial part of the EU, namely Bulgaria, Italy and Spain during the relevant period. In particular, the trade mark was affixed to the goods or the packaging thereof in the EU solely for export purposes by private label firms (names of nine companies are mentioned from Italy, Spain and Greece, the last affixing the trade mark in their factories in Bulgaria). The witness statement makes reference to the following annexes (Exhibits HMO 1 to 6):

Exhibit HMO1: Printouts from the websites of two of the private label companies mentioned in the EUTM proprietor’s witness statement. The printouts give brief and general information about the history, activities and/or address details of the companies. No mention is made of the EUTM proprietor or its mark.

Exhibit HMO2: Invoices and shipping documents (approximately 72 pages) dated in 2015. The invoices are issued by private label companies in Italy, Spain and Greece and are addressed to the EUTM proprietor. As mentioned, shipping documents in the form of bills of lading for transport are also enclosed. The invoices itemise, inter alia, relatively large quantities of ‘Freshly’-branded goods, in particular: sliced green olives, sliced black olives, peeled tomatoes, fruit cocktail in syrup, pear halves in syrup, green and white asparagus, sliced and whole mushrooms, artichoke hearts, balsamic vinegar cream, balsamic vinegar, olive oil, jarred white beans, jarred green peppers, tinned strawberry in syrup, jarred white beans, capers in vinegar, stuffed vine leaves with rice, chick peas, red kidney beans and natural garlic.

Exhibit HMO3: Examples of the copies of labels affixed to the products. The trade mark can be seen as registered on all the labels, which state, amongst other information, the following: ‘Packed for the brand owner Orient Provision & Trading Co. Ltd.’. The labels are bilingual and show the same information in English and Arabic. Some of the labels show additional information such as version date (for example, 11 July 2014, 22 February 2014, 10 May 2014, etc.) and label trim size in centimetres.

Exhibit HMO4: Photographs of actual products with labels displaying the contested trade mark on goods such as jarred capers, bottled balsamic vinegar, tinned artichoke hearts, tinned pear halves, jarred asparagus, tinned mushrooms, canned stuffed grape leaves, tinned olive oil, etc.

Exhibit HMO5: Table with the total volume of units and their sales value in EUR (with a break-down per each of the nine companies and per year in 2010, 2011, 2012, 2013, 2014 and 2015).

Exhibit HMO6: Individual tables (per company and per specific ‘FRESHLY’ product) showing the total volume of units and their sales value in EUR (with a break-down per year in 2010, 2011, 2012, 2013, 2014 and 2015).

On 21/07/2016, further to the applicant’s claims that the evidence was partly insufficient and not convincing, the EUTM proprietor submitted the following additional evidence:

Witness Statement dated 20/07/2016 by Mr. Hamid Mohammed Osman Mohammed Ali, development manager of the EUTM proprietor. The witness statement makes reference to the following additional evidence (Exhibits HMO 7 to 10):

Exhibit HMO7: Seven witness statements made by individuals working for some of the private label companies, which affix the contested trade mark on goods for the EUTM proprietor. The statements are from companies in Italy, Spain and Denmark and include information such as the name and address of the company, the name and position of the person making the statement, date as of which and exact kind of products on which the mark ‘FRESHLY’ is affixed, as well as product packaging details (for example, 3 kg and 1,56 kg, packed in cartons of 6 tins, 210 gr., 12 x 500 ml glass bottle, etc.). In relation to Denmark, the statement refers to the following goods (multilingual labels are also enclosed): ‘canned FRESHLY chicken luncheon meat’, ‘canned FRESHLY chicken sausages’, ‘canned FRESHLY beef luncheon meat’ and ‘canned FRESHLY chicken cocktail sausages’ produced for the EUTM proprietor continuously since 2000 and also during the period 07/12/2010 – 07/12/2015.

Exhibit HMO8: Copies of business correspondence dated in the relevant period (2011 - 2015) between EUTM proprietor and different EU-based private label companies. The correspondence relates to the labelling and the affixing the contested mark on the goods.

Exhibit HMO9: Invoices and shipping documents (approximately 80 pages) dated in the period 2011 - 2014. The invoices are issued by private label companies in Italy and Spain and are addressed to the EUTM proprietor. Bills of lading are also enclosed. The invoices itemise, inter alia, relatively large quantities of ‘Freshly’-branded goods, in particular: balsamic vinegar, olive oil, balsamic vinegar cream, jarred capers, jarred garlic, tinned artichoke, green and white asparagus, chick peas, jarred beans, pear halves in syrup, tinned fruit cocktails, green pepper, etc.

Exhibit HMO10: Photographs of actual labels and products displaying the contested trade mark on goods. The labels also show production date and expiration date referring to the relevant period and the products are tinned artichoke, green and white asparagus, chick peas, tinned fruit cocktails, green pepper, garlic, capers, peaches in halves in syrup, etc.

Preliminary remarks

a) Additional evidence

As mentioned above, the applicant submitted additional evidence on 21/07/2016.

Even though, according to Rule 40(5) EUTMIR, the EUTM proprietor has to submit proof of use within a time limit set by the Cancellation Division, this cannot be interpreted as preventing additional evidence from being taken into account where new factors emerge (12/12/2007, T-86/05, Corpo livre, EU:T:2007:379, § 50). The Office has to exercise the discretion conferred on it by Article 76(2) EUTMR (18/07/2013, C-621/11 P, Fishbone, EU:C:2013:484, § 30).

The factors to be evaluated when exercising this discretion are, first, whether the material that has been produced late is, on the face of it, likely to be relevant to the outcome of the proceedings and, second, whether the stage of the proceedings at which that late submission takes place, and the circumstances surrounding it, do not argue against these matters being taken into account (18/07/2013, C-621/11 P, Fishbone, EU:C:2013:484, § 33). The acceptance of additional belated evidence is unlikely where the EUTM proprietor or IR holder has abused the time limits set by knowingly employing delaying tactics or by demonstrating manifest negligence (18/07/2013, C-621/11 P, Fishbone, EU:C:2013:484, § 36).

In this regard, the Cancellation Division considers that the EUTM proprietor did submit relevant evidence within the time limit initially set by the Office and, therefore, the later evidence can be considered to be additional.

The fact that the applicant disputed the initial evidence submitted by the EUTM proprietor justifies the submission of additional evidence in reply to the objection (29/09/2011, T-415/09, Fishbone, EU:T:2011:550, § 30 and 33, upheld by judgment of 18/07/2013, C-621/11 P, Fishbone, EU:C:2013:484, § 36).

For the above reasons, and in the exercise of its discretion pursuant to Article 76(2) EUTMR, the Cancellation Division therefore decides to take into account the additional evidence submitted on 21/07/2016.

b) Affidavits and other evidence emanating from the EUTM proprietor and declarations by third parties

As far as the witness statements by the EUTM proprietor are concerned, Rule 22(4) EUTMIR (applicable to cancellation proceedings by virtue of Rule 40(6) EUTMIR) expressly mentions written statements referred to in Article 78(1)(f) EUTMR as admissible means of proof of use. Article 78(1)(f) EUTMR lists, as means of giving evidence, sworn or affirmed written statements or other statements that have a similar effect under the law of the State in which they were drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than 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.

However, this does not mean that such statements do not have any probative value at all. 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 (labels, packaging etc.) 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 contents of the witness statements are supported by the other items of evidence.

As regards the applicant’s arguments in relation to the weight of the seven witness statements (Exhibit HMO7) made by individuals working for some of the private label companies collaborating with the EUTM proprietor, it must be mentioned that statements drawn up by an independent source, for example by experts, professional organisations, Chambers of Commerce, suppliers, customers or business partners of the proprietor, are given more probative weight (decisions of 19/01/2011, R 1595/2008-2, FINCONSUMO, § 9(ii); 30/03/2010, R 0665/2009-1, EUROCERT, § 11 and decision of 12/08/2010, B 1 575 615).

Furthermore, as regards the probative value of these statements, the exact value of such statements always depends on its concrete form and content. In the present case, given that the statements include detailed, dated and concrete information, they have a relatively high probative value. They are not merely general and abstractly drafted statements and are corroborated by the information in the other items of evidence, such as the examples of labels, the invoices and the business correspondence.

c) Means of evidence, overall assessment of the evidence

The applicant argues that not all the items of evidence indicate genuine use in terms of time, place, extent, nature and use for the goods for which the EUTM is registered.

The applicant’s argument is based on an individual assessment of each item of evidence regarding all the relevant factors. However, when assessing genuine use, the Cancellation Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

Assessment of genuine use – factors

Time of use

The evidence must show genuine use of the European Union trade mark within the relevant period.

The great majority of the evidence is dated within the relevant period. Therefore, the evidence of use filed by the EUTM proprietor contains sufficient indications concerning the time of use.

As regards the argument of the applicant that the initial set of invoices are dated only in 2015, it is important to remember, regarding duration of use, that only trade marks whose genuine use was interrupted for a continuous period of five years are subject to the sanctions provided for in Article 15(1) EUTMR. Therefore, it is sufficient for avoiding these sanctions that a trade mark was genuinely used for only part of this period (16/12/2008, T-86/07, Deitech, EU:T:2008:577, § 52 and 09/07/2009, R 623/2008-4, Walzer Traum (fig.) / Walzertraum (fig.), § 28). Furthermore, the EUTM proprietor submitted additional evidence at a later stage containing invoices referring to the whole relevant period. Therefore, this argument of the applicant is unfounded.

Place of use

The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 15(1) EUTMR and Article 51(1)(a) EUTMR).

According to Article 15(1), second subparagraph, point (b) EUTMR, affixing the European Union trade mark to goods or the packaging thereof in the Union solely for export purposes also constitutes use within the meaning of paragraph 1.

The evidence shows that the goods were manufactured in Spain, Italy, Bulgaria and Denmark and exported/ shipped to Saudi Arabia. This clearly shows that the goods were exported from the relevant territory.

As confirmed by case-law, genuine use may result from the export to a single operator located outside Europe, who can be an intermediary, for the purpose of selling to the end consumer in a third country. Proof of the putting on the market of the products in this third country of import is not required (04/06/2015, T-254/13, Stayer, ECLI:EU:T:2015:362, in particular § 57-61).

Consequently, pursuant to Article 15(1), second subparagraph, point (b) EUTMR, the evidence of use filed by the applicant contains sufficient indications concerning place of use.

Nature of use: use as a trade mark

Nature of use requires, inter alia, that the contested European Union trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers.

In the present case, the EUTM was used as a trade mark. The evidence filed by the EUTM proprietor undoubtedly shows a link between the goods in question and the use of the mark and that the EUTM was used in accordance with its essential function, which is to guarantee the identity of the origin of the goods for which it is registered.

Nature of use: use of the mark as registered

‘Nature of use’ in the context of Rule 22(3) EUTMIR further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 15(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark.

The sign used shows use of the mark as registered or in a form essentially the same as that registered and, therefore, constitutes use of the contested EUTM under Article 15 EUTMR.

Extent of use

Concerning 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).

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 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 Cancellation Division is of the opinion that for part of the contested goods for which the EUTM is registered, the evidence (especially the invoices, but also the labels, witness statements and sales figures), gives sufficient information regarding the extent of use of the mark. The evidence shows that the EUTM proprietor has used its trade mark uninterruptedly throughout the whole relevant period 2010 - 2015. Taking into account the nature and price of the goods, the frequency of use, the number of units sold is sufficiently large and the volume of the exploitation of the mark is far from being merely token.

Consequently, taking into account the evidence in its entirety and based on an overall assessment, the Cancellation Division considers that the evidence gives sufficient information regarding the extent of use of the mark.

Use in relation to the registered goods

Article 51(1)(a) EUTMR and Rule 22(3) EUTMIR require that the EUTM proprietor proves genuine use for the contested goods and services for which the European Union trade mark is registered.

The contested EUTM is registered for goods in Classes 29, 30 and 32. However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the contested goods.

According to Article 51(2) EUTMR, where there are grounds for revocation in respect of only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods and services only.

Furthermore, according to case-law, when applying the abovementioned provision the following should be considered:

… if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the subcategory or subcategories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or subcategories.

[Furthermore,] allowing an earlier trade mark to be deemed to be registered only in relation to the part of the goods or services in respect of which genuine use has been established … must be reconciled with the legitimate interest of the proprietor in being able in the future to extend his range of goods or services, within the confines of the terms describing the goods or services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him.

(14/07/2005, T 126/03, Aladin, EU:T:2005:288)

Use for the goods in Class 29

In the present case, the evidence shows that the mark is used, inter alia, for a broad range of goods in Class 29, such as various fruits and vegetables (cooked, preserved in vinegar and in tins, cans, jars, etc.) and fruit cocktails (compotes, fruits in syrup). Therefore, applying the principles established in the ‘Aladin’ case previously quoted, in view of the use shown in relation to various goods and in order to respect the legitimate interest of the proprietor in being able in the future to extend its range of goods, it is considered that the evidence shows use of the mark for the following broad categories: preserved, dried and cooked fruits and vegetables; fruit sauces.

Furthermore, the evidence shows that the EUTM proprietor used the mark in relation to olive oil (belonging to the registered broad category of edible oils) and in relation to goods such as canned chicken and beef luncheon meat, canned chicken and canned chicken sausages (belonging to the registered broad categories of meat, poultry). As regards the latter, although there is no direct evidence of sale (such as invoices), it is considered that there is sufficient indirect evidence (a witness statement backed up by an independent statement from a third party referring to relevant labels and period of use) that proves use for those goods. Nevertheless, the Cancellation Division considers that the registered categories edible oils, meat and poultry are sufficiently broad for several subcategories to be identified within them.

Edible oils cover goods such as palm oil, maize oil, corn oil, coconut oil, soybean oil, nut oils, etc. Also, the terms meat and poultry include any kind of cooked, semi-cooked and raw meat from all kinds of edible animals and poultry (chickens, ducks, turkeys, etc.). Therefore, these terms cover a broad range of goods which are sufficiently different in their intended purpose and method of preparation and production, specific uses and producers, and even, end consumers. As mentioned above, the evidence shows use only for olive oils. These goods are sufficiently defined in terms of their purpose, method of production and producers, to function as an independent subcategory. Therefore, it is considered that use has been proven only for olive oils. Similarly, use has only been shown for canned chicken and beef luncheon meat, canned chicken and canned chicken sausages. On the basis of the specific method of production and market of these goods, the Cancellation Division finds that the use for the mentioned goods, which falls under the broad category of meat and poultry, constitutes use for the subcategories canned meat and poultry, namely canned chicken.

No evidence of use has been submitted in relation to the remaining goods: fish; meat extracts; jellies, jams; eggs; edible fats. Contrary to the arguments of the EUTM proprietor, no use was proved for these goods, as there is no piece of evidence on file showing that the proprietor used its mark in relation to these goods. At the same time, no proper reasons for non-use of the EUTM for these goods were given by the proprietor.

Use for the goods in Class 30

In the present case, the evidence shows that the mark is used for balsamic vinegar cream, balsamic vinegar. Although the registered term vinegar is relatively broad (may include fruit vinegar, wine vinegar, mustard vinegar, etc.), it is considered that use has been shown for the whole category. This is because the EUTM proprietor proved use for two different varieties of balsamic vinegar (which can be made only of grapes but also of grapes blended with wine vinegar) and, also, in order to respect the legitimate interest of the proprietor in being able in the future to extend his range of goods, as reflected in the above-cited Aladin judgement.

However, there is no evidence of use in relation to all the remaining goods in this class coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, pastry, and confectionery, ices; honey, treacle, yeast, baking-powder; salt, mustard; sauces (condiments); spices; ice. Contrary to the arguments of the EUTM proprietor no use was proved for these goods, as there is no piece of evidence on file showing that the proprietor used its mark in relation to these goods. No proper reasons for non-use of the EUTM for these goods were given by the proprietor either.

Use for the goods in Class 32

No evidence of use and/or arguments were filed to show use of the trade mark in relation to the goods in this class. No proper reasons for non-use of the EUTM for these goods were given by the proprietor either. Therefore, no genuine use was proved for these goods.

Overall assessment

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 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).

In the present case, the Cancellation Division considers that genuine use of the contested mark has been sufficiently demonstrated for the relevant factors time, place, extent and nature of use for some the contested goods in Classes 29 and 30 for which the mark is currently registered, namely:

Class 29: Canned meat; poultry, namely canned chicken; preserved, dried and cooked fruits and vegetables; fruit sauces; olive oils.

Class 30: Vinegar.

Therefore, the EU trade mark registration remains registered for the abovementioned goods and the application for revocation is not successful in this respect.

However, the evidence submitted is insufficient to prove genuine use of the contested EUTM in relation to the remaining contested goods, for which it must, therefore, be revoked.

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the EUTM for the following contested goods, for which it must, therefore, be revoked:

Class 29: Meat, other than canned meat; fish; poultry, other than canned chicken; meat extracts; jellies, jams; eggs; edible oils, other than olive oils; edible fats.

Class 32: Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

The EUTM proprietor has proven genuine use for the remaining contested goods; therefore, the application is not successful in this respect.

According to Article 55(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 07/12/2015.

COSTS

According to Article 85(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 85(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part of the contested goods, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Cancellation Division

Robert MULAC

Liliya YORDANOVA

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.

FRESHLY | Decision 0012191

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