PERENEO | Decision 0010516 | Trademarkers LLC

PERENEO | Decision 0010516

Date Published: Sep 28, 2017

CANCELLATION No 10 516 C (REVOCATION)

Michael Gleissner, Amersfoortsestraatweg 33 B, 1401 CV Bussum, the Netherlands (applicant)

a g a i n s t

Pereneo (Groupement d'Intérêt Economique), 5, avenue Guynemer, 31772 Colomiers, France (EUTM proprietor), represented by Santarelli, 49, avenue des Champs Elysées, 75008 Paris, France (professional representative).

On 26/05/2017, the Cancellation Division takes the following

DECISION

The decision of 28/10/2016 on cancellation No 10 516 C is hereby revoked and replaced with the present decision.

The application for revocation is partially upheld.

The EUTM proprietor’s rights in respect of European Union trade mark No 4 030 102 are revoked as from 03/03/2015 for part of the contested goods and services, namely:

Class 9: Scientific (other than for medical purposes), nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for the supply, distribution, transformation, accumulation, regulation or control of electric current; apparatus for recording, transmission or reproduction of sound or images; batteries, electric; detectors; electric wires; electric relays; automatic vending machines and mechanisms for coin-operated apparatus; cash registers; diagnostic apparatus (not for medical purposes); data-processing equipment; calculating machines; computers, computer peripheral devices, subassemblies and components; printers, consoles, keyboards, central processing units (processors), modems, electronic components, microprocessors, printed circuits, integrated circuits, condensers, transistors, computer memory, hard disks, diskettes, compact discs, CD-ROMs, smart cards or microprocessor cards, magnetic cards, magnetic data carriers; computer software (recorded programs); downloadable software; software for the testing and maintenance of electronic systems and apparatus fitted in land or water vehicles, aeroplanes, space vehicles and missiles; devices for remote control of apparatus; electronic display boards; on-board computers for land, water, air and space vehicles and missiles; automatic checking apparatus and equipment for testing electronic apparatus and equipment on board land, water, air and space vehicles and missiles.

Class 42: Scientific services and research and design relating thereto; assessment, appraisal and research in the fields of science, performed by engineers, research and development of new products; design and development of computer hardware and software; computer programming; conversion of data and computer programs (other than physical conversion); conversion of documents from physical to electronic media; technical testing of land, water, air and space vehicles and missiles.

The European Union trade mark remains registered for all the remaining goods and services, namely:

Class 37: Maintenance and repair of electronic systems and equipment, computer systems, computer peripheral devices and subassemblies.

Class 42: Technological services and research and design relating thereto, industrial analysis and research: assessment, appraisal and research in the fields of technology, performed by engineers; software installation; design and updating of computer software for testing and maintaining electronic systems and equipment.

Each party bears its own costs.

REASONS

On 03/03/2015the applicant filed a request for revocation of European Union trade mark registration No 4 030 102 for the word mark ‘PERENEO’ filed on 20/09/2004 and registered on 15/06/2006. The request is directed against all the goods and services covered by the EUTM, namely:

Class 37: Maintenance and repair of electronic systems and equipment, computer systems, computer peripheral devices and subassemblies.

Class 42: Scientific and technological services and research and design relating thereto, industrial analysis and research: assessment, appraisal and research in the fields of science and technology, performed by engineers, research and development of new products; design and development of computer hardware and software; computer programming; software installation; design and updating of computer software for testing and maintaining electronic systems and equipment; conversion of data and computer programs (other than physical conversion);conversion of documents from physical to electronic media; technical testing of land, water, air and space vehicles and missiles.

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

REVOCATION OF DECISION OF 28/10/2016

On 16/01/2017, the Office informed the parties in the present proceedings that it has the intention to revoke the decision of 28/10/2016 taken in the revocation proceedings No 10 516 C.

The reason is that the dictum of the decision of 28/10/2016 contained obvious errors attributable to the Office, namely that, on page 1 of the decision, point 3 of the dictum erroneously includes services of software installation in Class 42 whereas these services were not revoked in the conclusion of the decision. There is also an obvious error to the extent that the Office should have not deleted the following wording from Class 42 in the final considerations and in the dictum of the decision: assessment, appraisal and research in the fields of technology, performed by engineers. Finally, the word ‘assessment’ was also missing in the conclusion of the decision and at point 3 of the dictum (list of services of Class 42 for which the EUTM No 4 030 102 is revoked).

In accordance with Article 80 EUTMR, the Office gave two months to the parties to submit any observations.

The parties did not submit any observations. Therefore, the decision taken on 28/10/2016 in revocation proceedings No 10 516 C is revoked and replaced with the present decision

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that within a continuous period of five years after the EUTM has been registered and before the filing of the request for cancellation, the EUTM has not been put to genuine use, in the meaning of Article 15 EUTMR, namely that the EUTM proprietor has not submitted sufficient evidence of time, place, extent and nature of the use of the EUTM in relation to the registered goods and services. It is requested, in accordance with Article 51(1)(a) EUTMR, that the EUTM be cancelled for all the goods and services specified in Classes 9, 37 and 42 for which it is currently protected, and that the proprietor bear the costs of the cancellation proceedings.

The EUTM proprietor argues that the application for a declaration of revocation is not justified for most of the registered goods and services. In particular, it considers that in view of the evidence provided by GIE PERENEO, it is established that the EUTM ‘PERENEO’ cannot be cancelled for the following services, i.e.:

Maintenance and repair of electronic systems and equipment, computer systems, computer peripheral devices and subassemblies.

Scientific and technological services and research and design relating thereto, industrial analysis and research: assessment, appraisal and research in the fields of science and technology, performed by engineers, research and development of new products; design and development of computer hardware and software; computer programming; software installation; design and updating of computer software for testing and maintaining electronic systems and equipment; conversion of data and computer programs (other than physical conversion);conversion of documents from physical to electronic media; technical testing of land, water, air and space vehicles and missiles.

The EUTM proprietor considers that it has established the genuine use of its mark ‘PERENEO’ in the EU territory for the designated goods and services claimed under the EUTM No 4 030 102 and in the requested time period. As a consequence, it is requested to reject the application for declaration of revocation and that the applicant bears the fees and the costs of the cancellation proceedings.

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 15/06/2006. The revocation request was filed on 03/03/2015. 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 03/03/2010 to 02/03/2015 inclusive, for the following contested goods and services:

Class 37: Maintenance and repair of electronic systems and equipment, computer systems, computer peripheral devices and subassemblies.

On 12/03/2015, the EUTM proprietor was requested to submit proof of use of the mark by 22/06/2015. As requested by the EUTM proprietor, this time limit was extended until 22/08/2015.

On 20/08/2015 and 21/08/2015 the EUTM proprietor submitted evidence as proof of use.

As the EUTM proprietor requested to keep certain commercial data contained in the evidence confidential vis-à-vis third parties, the Cancellation Division will describe the evidence only in the most general terms without divulging any such data.

The evidence to be taken into account is the following:

Mailing in the form of an invitation for the event ‘10 years of GIE PERENEO’ that was planned on 01/07 and 02/07/2014: in French with its translation into English;

Leaflet ‘Pérennisation et soutien long terme’ in French with its translation into English ‘Sustainability and long-term support’: the following can be read: ‘The Economic Interest Group (GIE) ‘PERENEO’ was created in 2004 by Actia Automotive and Cassidian Test & Services. This partnership provides our Customers with complete and optimized industrial solutions guaranteeing operational availability and increasing the long-term life of complex electronic systems. PERENEO implements possible different solutions for its Customers: equivalence, purchasing, secure storage, repair, redesign/cloning, remanufacture, testing and Customer support. PERENEO has extensive means to manage the complete product life cycle. Thanks to our obsolescence management (iPerSyst, etc.), testing and maintenance (filtering, diagnostic, validation, etc.) tools, we set up a global MCO organization solution and dedicated repair workshops for processing "orphan" products (manufacturer obsolescence): ACTIA has specialized in electronic diagnostics and on-board electronics for industrial and challenging environments for over 25 years and is now leader in its various fields of competence. Thanks to its international scope (15 subsidiaries) and its 3,000 staff, the group works closely with major international manufacturers. ACTIA masters the constant development of electronic systems: an Obsolescence observatory is fully dedicated to maintaining systems in operational condition. Cassidian Test & Services is a company specialized in automatic test systems for the development, production and maintenance of electronic and optronic systems. Cassidian Test & Services offers its civil and military customers - located all over the world - high added-value products and services. With its subsidiary, GET Electronique, Cassidian Test & Services provides electronic equipment manufacturers with support for repairing and managing the end-of-life of their products.; This document is not dated;

Invoice of 30/06/2014 related to the printing of the leaflet ‘Pérennisation et soutien long terme’ identified here above with its translation into English;

Certificate of provision of services performed under the PERENEO mark: this document is issued by the Ministry of Defence of the French Republic with its translation into English. It certifies inter alia that the French Aeronautic Industrial Services have had business relations from 2013 to date, in France, with the Economic Interest Group (GIE) PERENEO and that the EUTM proprietor has provided services under the PERENEO brand, in France for them. For example, in the context of the one contract from 2014, GIE PERENEO provided services under the PERENEO brand consisting of supplying and installing an integrated repair and sustainability workshop for Components, Ancillaries and Equipment (OAE), and of associated services for ‘Atelier Industriel de l’Aéronautique (AIA) Cuers-Pierrefeu’;

Orders and invoices from France (with lexicon in English) for the years 2011, 2012, 2013, 2014 and 2015. The orders and invoices are related to the work and monitoring and processing of obsolescence, in particular monitoring electronic components database, looking for obsolescence, analysing of the component obsolescence and providing some recommendations to mitigate obsolescence risk;

Certificate of use of the mark PERENEO issued by the company Tractabel Engineering GDF Suez for services rendered in Belgium with translation into English;

Description of some services rendered under a specific project in Belgium, namely services of design and manufacturing of test tools (hardware/software qualification teste; test bench), electronic card tests, software testes, electronic Card manufacturing, maintenance and repair services, qualification of cards;

Invoices for this specific project in Belgium + Lexicon in English;

Acknowledgement of receipt and purchase specific order;

Certificate of authorization;

Extracts of websites, namely:

http://www.spherea.com/fr/ related to the SPHEREA multiple skills, its subsidiary GET Electronics, GIE PERENEO created with ACTIA 10 years ago.

http://infos-marche-public.fr/index-march-public-de-fournitures-collomiers-31772.php related to the supply and installation of an integrated workshop repair and perpetuation of Components, Ancillaries and Equipment (OAE) and associated services. It can be seen in this document that the public contract was awarded to the EUTM proprietor, that the amount awarded of the public contract is EUR 2 491 581. Considering that this information has actually been published it is within the public domain and as such is not strictly confidential.

Preliminary remark

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 and services 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.

Time of use

Evidence referring to use outside the relevant period is disregarded unless it contains conclusive indirect proof that the mark must have been genuinely used during the relevant period as well. Events subsequent to the relevant period may make it possible to confirm or assess more accurately the extent to which the earlier mark was used during the relevant period and the EUTM proprietor’s real intentions at the time (27/01/2004, C-259/02, Laboratoire de la mer, EU:C:2004:50).

In the present case, the evidence referring to use outside the relevant period confirms use of the EUTM proprietor’s mark within the relevant period. This is because the use it refers to is very close in time to the relevant period. Indeed, the applicant claims that most of the evidence is dated after the relevant period, namely after 02/03/2015, in particular Doc No 1.1, Doc No 2.1., Doc No 3.1, Doc No 4.1. The first one refers to an event that occurred on 01/07 and 02/07/2014 and is therefore within the relevant period. The second document is dated 30/06/2015 but refers to a period of use from 2013 until the date of the certificate of provision of services performed under the PERENEO mark. Doc 3.1 are orders and invoices dated in 2011, 2012, 2013 and 2014, namely within the relevant period. The order and invoice of 2015 are dated April 2015 which is very close in time to the relevant period. The same applies to the certificate of use of the mark PERENEO for services rendered in Belgium dated 16/06/2015. In fact, this last document certifies that the EUTM proprietor has carried on business relations with a client in Belgium since 2010. As regards the leaflet ‘Pérennisation et soutien long terme’, although the document is not dated, it is accompanied by an invoice related to its printing dated 30/06/2014.

Most 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.

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). The certificates, orders and invoices show that the place of use is mainly France and to a lesser extent Belgium. This can be inferred inter alia from the language, namely French, of the documents and the information certified by two clients as well as from the invoices. Therefore, the evidence relates to the relevant territory.

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 this case, the evidence clearly shows use as a trade mark.

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. It is clear from the evidence that the EUTM has been used as registered. In some cases, the mark is used as follows:

The GC has held that the assessment of the distinctive or dominant character of one or more components of a complex trade mark must be based on the intrinsic qualities of each of those components, as well as on the relative position of the different components within the arrangement of the trade mark (judgment of 24/11/2005, T-135/04, Online Bus, EU:T:2005:419, § 36). With regard to additions, if the additions are not distinctive, weak and/or are not dominant, they do not alter the distinctive character of the registered trade mark (judgments of 30/11/2009, T-353/07, Coloris, EU:T:2009:475, § 29-33 et seq.; 10/06/2010, T-482/08, Atlas Transport, EU:T:2010:229, § 36 et seq.).

It is considered that the additional figurative elements, such as the rectangle formed by small squares and the line below the word ‘Pereneo’ with its wave-shaped ending are essentially decorative and therefore have a low degree of distinctiveness. The additional elements are hardly readable and therefore are not eye-catching. Moreover, the EUTM is a word mark and, thus, the word itself is protected, not its written form. Therefore, it is irrelevant whether this word mark is used in lower, upper or title case letters. It is considered that the use of the mark constitutes an acceptable ‘variation’ of its registered form.

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 evidence submitted by the EUTM proprietor in order to prove genuine use of the earlier EUTM relates exclusively to France and Belgium. As stated above, the territorial scope of the use is only one of several factors to be assessed in the determination of whether the use is genuine or not. As the Court held in ‘Leno Merken’ ‘the territorial scope of the use is only one of several factors to be taken into account in the determination of whether that use is genuine or not’ (judgment of 19/12/2012, C-149/11, Leno, EU:C:2012:816, § 30). In the present case, it appears that the France and Belgium can be considered as a sufficiently extended territorial scope of use, all the more so as it can be assessed from the evidence that the use of the mark was extensive and regular and the commercial volume also offsets the territorial limitation of the use.

As regards the commercial volume, the most relevant pieces of evidence are the certificate for the provision of services performed under the PERENEO mark emitted by the Ministry of Defence of the French Republic and the orders and invoices from France for the years 2011, 2012, 2013, 2014 and 2015. Although the EUTM proprietor did not provide details concerning the value of sales during the relevant period, it provided sufficient evidence to prove the existence of a significant activity during the relevant period. In this regard, it has to be evaluated whether, in view of the market situation in the particular industry or trade concerned, it can be deduced from the material submitted that the EUTM proprietor has seriously tried to acquire a commercial position in the relevant market. As regards the frequency of use, the evidence provided shows a regular use of mark during the whole relevant period.

Genuine use is not excluded only because the use has been made with one or only few customer(s), as long as the trade mark is used publicly and outwardly and not solely within the undertaking which owns the earlier trade mark or within a distribution network owned or controlled by that undertaking (judgments of 08/07/2004, T-203/02, Vitafruit, EU:T:2004:225, § 50; 8/10/2014, T-300/12, Fairglobe, EU:T:2014:864, § 36).

Contrary to what the applicant argues, some figures have been provided such as the amount awarded in 2014 for a public contract with Ministry of Defence of the French Republic and the value of this contract amounts to a considerable sum.

The combination of all the items of evidence clearly indicates that the extent of use has been sufficient during the relevant period.

Use in relation to the registered goods and services

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:

Class 37: Maintenance and repair of electronic systems and equipment, computer systems, computer peripheral devices and subassemblies.

Class 42: Scientific and technological services and research and design relating thereto, industrial analysis and research: assessment, appraisal and research in the fields of science and technology, performed by engineers, research and development of new products; design and development of computer hardware and software; computer programming; software installation; design and updating of computer software for testing and maintaining electronic systems and equipment; conversion of data and computer programs (other than physical conversion); conversion of documents from physical to electronic media; technical testing of land, water, air and space vehicles and missiles.

However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the goods and services for which it is registered.

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.

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)

The certificate for provision of services emitted by the French Ministry of Defence is related to supplying and installing an integrated repair and sustainability workshop for components, accessories and equipment as well as associated services. The orders and invoices are related to the work and monitoring and processing of obsolescence, in particular monitoring electronic components database, looking for obsolescence, analysing the obsolescence component and providing some recommendations to mitigate obsolescence risk. The evidence referring to use in Belgium is more related to services of design and manufacturing of test tools (hardware/software qualification test; test bench), electronic card tests, software testes, maintenance and repair services and qualification of cards.

It is widely accepted that all electronic devices have a product life cycle. As products evolve into updated versions, they require parts and technology distinct from their predecessors. Obsolescence is the state of being which occurs when an object, service, or practice is no longer wanted even though it may still be in good working order. It is way of measure an asset’s drop in value resulting from a reduction in the performance of the asset with regard to its current expectations. Dealing with obsolescence involves a lot of trade offs, risk assessment and long term planning.

For example, it is clear from the evidence that the EUTM proprietor deals with the Electronic Component Obsolescence, in the Aeronautic field for instance. The evidence also shows the proprietor’s activities in other fields, however due to the confidentiality request further details cannot be given. The ongoing revolution in the electronics industry has created a significant challenge for the aerospace industry. Manufacturers of aerospace electronic components such as integrated circuits, diodes, resistors, and transistors are leaving the aerospace market to pursue the rapidly expanding computer, consumer electronics, and telecommunications markets. To successfully adapt to this changing environment, designers of aerospace systems must understand the scope of the component obsolescence problem, select and manage electronic components, design electronic systems and equipment, operate, maintain and support electronic equipment and finally qualify and certify electronic equipment.

Contrary to the findings of the applicant, the Cancellation Division considers that the EUTM proprietor has genuinely used its mark albeit only for part of the services. In line with the previously cited ‘ALADIN’ it is not necessary that the applicant proves use for all conceivable variations of the goods and services concerned. With regard to the aforementioned services which appear to be used in connection with the scope of the component obsolescence problem in the Aeronautic field and other sectors, limiting it in this respect would unduly limit the proprietor’s right to progress in other fields which might be a natural and complementary progression.

Therefore the evidence shows genuine use of the trade mark for the following services:

Class 37: Maintenance and repair of electronic systems and equipment, computer systems, computer peripheral devices and subassemblies.

The evidence mainly relates to these services, whereas there is no or little reference to the remaining goods and services. Therefore, the Cancellation Division declares the EUTM to be revoked for the remaining goods and services for which it is registered.

Conclusion

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

The EUTM proprietor has proven genuine use for the remaining contested services; 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 03/03/2015.

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 and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Cancellation Division

Lucinda CARNEY

Benoit VLEMINCQ

Vanessa PAGE

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.

PERENEO | Decision 0010516

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