CANCELLATION No 30 981 C (REVOCATION)

CANCELLATION DIVISION

CANCELLATION No 30 981 C (REVOCATION)

Ledvance Gmbh, Parkring 29-33, 85748 Garching bei München, Germany (applicant)

a g a i n s t

Anna Elisabeth Ursula Sawazki, Heiligenpesch 18, 41069 Mönchengladbach, Germany (EUTM proprietor), represented by Friedrich Graf von Westphalen & Partner mbBb, Kaiser-Joseph-Str. 284, 79098 Freiburg i. Br., Germany (professional representative).

On 11/06/2019, the Cancellation Division takes the following

DECISION

1. The application for revocation is upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 9 614 017 are revoked as from 19/12/2018 for all the contested goods, namely:

Class 9:

Spectacles; Lenses for the eye; Safety goggles; Spectacle lenses; Glass covered with an electrical conductor; Glasses for optical use or adapted to protect the eyes; Lenses for sunglasses; Retorts; Laboratory glassware; Vision correction lenses; Reading glasses; Measuring glassware; Opera glasses; Optical glass; Test tubes; Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; Fire-extinguishing apparatus; Electrical equipment for recording, transmission or reproduction of sound or images; Apparatus for recording, transmission or reproduction of sound or images; Cash registers, calculating machines, data processing equipment and computers; Asbestos gloves for protection against accidents; Gloves for divers; Gloves for protection against accidents; Protective gloves for industrial use; Bulletproof waistcoats; Life buoys; Life jackets; Gloves for protection against accidents; Protection devices against x-rays, not for medical purposes; Measuring instruments; Time switches, automatic; Time switches; Timing sensors; Leather cases for mobile phones; Thermometers; Mirrors for inspecting work; Optical mirrors; Frames for photographic transparencies; Furniture especially made for laboratories; Fire blankets; Safety tarpaulins; Lifebelts; Life saving apparatus and equipment; Safety headwear; Safety restraints; Asbestos clothing for protection against fire; Shoes for protection against accidents, irradiation and fire; Bicycle helmets; Riding helmets; Protective helmets; Safety helmets; Sports helmets; Crash helmets; Asbestos gloves for protection against accidents; Asbestos screens for firemen; Respirators for divers; Respirators for filtering air; Glare and light filters; Anti-glare glasses; Anti-glare screens; Eye protection wear for sports; Warning and protection devices against water and fire damage; Ear plugs not for medical purposes; Workmen's protective face-shields; Glasses for optical use or adapted to protect the eyes; Protective masks; Teeth protectors; Cathodic anti-corrosion apparatus; Anti-dazzle shades; Protective suits; Safety goggles; Respirators for filtering air; Gloves for protection against x-rays for industrial purposes; Workmen's protective face-shields; Protection devices for personal use against accidents; Protection devices against x-rays, not for medical purposes; Goggles for sports; Dust masks; Surge protectors; Power surge protection equipment; Clothing for protection against accidents, irradiation and fire; Nets for protection against accidents; Protection devices for personal use against accidents; Eye protection wear for sports; Sports spectacles; Goggles for sports; Electric batteries and mountings; Abdomen protectors for protection against injury, not adapted for use in playing sports; Arm protection pads for protection purposes, not adapted for use in playing sports; Chest protectors for the prevention of accidents or injury, not adapted for use in playing sports; Contact lenses for eye protection for sports; Elbow protectors for the prevention of accidents or injury, not adapted for use in playing sports; Hip protectors for the prevention of accidents or injury, not adapted for use in playing sports, knee protectors for the prevention of accidents or injury, not adapted for use in playing sports; Reflector discs for clothing; Reflector strips for clothing; Electrically heated clothing for protection against accidents and injury; Heat detectors; Protective metal gloves for meat cutting; Temperature measuring apparatus for household use; Temperature measuring apparatus for industrial purposes; Temperature measuring apparatus for scientific use; Contact lens cases, containers and holders; Gloves for protection against dog bites; Forearm protectors; Spoke reflectors; Suits for protection against heat; Protective clothing of nonwoven materials; Straps for spectacles.

Class 11:

Sight glasses for use in reflecting heat; Transparent panes for use in reflecting heat; Lamp glasses; Disinfectant dispensers for toilets; Valves being parts of heating and sanitary installations; Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes; Lamps; Antisplash tap nozzles; Washers for water taps; Ceiling light fittings; Ceiling fans; Blankets, electric, not for medical purposes; Tumble dryers; Clean rooms, sterile rooms (sanitary facilities); Lamps for spectacles and helmets.

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

	Class 3:	Disinfectant soaps; Liquid soap; Soaps for household use; Skin soap; Medicated soaps; Perfumed soaps; Shaving soaps; Soaps for brightening textiles; Soaps and detergents; Toilet soaps; Toothpaste; Dentifrices; Bleaching preparations and other substances for laundry use; Polishing paper; Polishing creams; Denture polishes; Cleaning, polishing, scouring and abrasive preparations; Cloths impregnated with a detergent for cleaning; Perfumery goods; Essential oils; Cosmetics and hair lotions; Preparations for cleaning dentures; Tooth bleaching gel; Tooth cleaning preparations; Furniture polishes; Glass cloths; Glass cloth; Cleaners for surfaces, metals or glass.
	Class 4:	Dust absorbing, wetting and binding compositions; Fuels (including motor spirit) and illuminants; Industrial oils and greases, lubricants.
	Class 5:	Pharmaceutical and veterinary preparations; Dietetic substances adapted for medical use, food for babies; Sticking plasters; Solvents for removing adhesive plasters; Paper for mustard plasters; Plasters for inflamed football injuries; Plasters; Materials for dressings; Paper for mustard plasters; Material for stopping teeth, dental wax; Disinfectants; Germicides for hygiene purposes; Preparations for destroying vermin; Pesticides, insecticides, herbicides, fungicides; Dental wax; Medicines for veterinary purposes; Medicines for dental purposes; Bacteriological preparations for medical and veterinary use; Surgical tissues; Greases for veterinary purposes; Rubber for dental purposes; Dental mastics; Bone cement for surgical and orthopaedic purposes; Preparations of microorganisms for medical and veterinary use; Dental abrasives; Scapulars for surgical purposes; Dental composite materials; Modelling wax for dental purposes; Wipes for medical or surgical use; Fly paper; Mothproofing paper; Medical adhesive tapes; Cough pastilles for medical use; Pills for pharmaceutical purposes; Pants, absorbent, for incontinents; Medicated mouthwash; Sanitary preparations for medical use; Sanitary articles.
	Class 6:	Ironmongery, small items of metal hardware; Goods of common metal not included in other classes; Fittings of metal for furniture; Furniture casters of metal; wall mounts of metal.
	Class 7:	Machines and machine tools; Machine couplings and transmission components (except for land vehicles); Agricultural implements; Hand tools (other than hand-operated); Blade holders (parts of machines); Holding devices for machine tools.
	Class 8:	Non-electric hand implements for hair curling; Gardening tools (hand-operated); Hand tools and implements (hand operated); Table cutlery; Cutlery; Silverplate; Side arms; Razors, electric or non-electric; Razor cases; Padding and stuffing material; Padding materials of rubber or plastics; Nail files; Cuticle nippers; Nail clippers; Drill holders [hand tools]; Tool belts (holders); Saw holders; Tool holders.
	Class 10:	Medical and surgical cutting apparatus for cutting human and animal tissue or organs; Hearing protectors; Special furniture for medical use; Latex and synthetic gloves for medical, surgical, dental and health care use; Cutlery (surgical); Disposable gloves for medical and dental use; Gloves for surgical and medical purposes, gloves for use in hospitals; Gloves for massage; Surgical gloves; Apparatus and installations for the production of x-rays, for medical purposes; Protection devices against roentgen rays, for medical purposes; Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; Cauteries for surgical and ophthalmic use; Surgical apparatus and instruments; Surgical thread; Surgical implants of artificial materials; Suture needles; Suture clips; Surgical sponges; Mirrors for surgeons; Suture materials; Dental burs; Knives for surgical purposes; Needles for surgical purposes; Saws for surgical purposes; Scissors for surgery; Surgical splints; Chairs for medical or dental purposes; Dental chairs; Elastic stockings (surgery); Thermo-electric compresses (surgery); Dental apparatus and instruments; Electrical dental apparatus; Mirrors for dentists; Dental mirrors; Orthopedic articles; Thermometers for medical use; Beds, specially made for medical purposes; Water beds for medical purposes; Electric blankets for medical purposes; Supports for flat feet; Corsets for medical purposes; Heating pads for medical purposes; Non-electric heated pads for medical purposes; Heat-radiating containers for pain reduction; Antibacterial and antiviral heat-exchange filters for medical purposes; Electronic temperature monitors for medical purposes; Electronic temperature recorders for medical purposes; Medical cooling devices for controlling wound temperatures; Condoms; Syringes for medical purposes; Sterile sheets (surgical); Masks for use by medical personnel; Walking aids.
	Class 12:	Electrically-powered wheelchairs; Manual wheelchairs; Wheelchair cushions; Wheelchairs.
	Class 14:	Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; Boxes of precious metal; Jewellery of precious metals.
	Class 16:	Typewriters and office requisites excluding furniture; Disposable nappies; Garbage bags of paper (for household use); Garbage bags of paper or plastic; Tissues of paper for removing make-up; Cardboard floor display units for merchandising products; Paper display boxes; Babies' pants made of paper or cellulose (disposable); Babies' bibs of paper; Babies' diapers of cellulose or paper; Paper baking cups; Gummed tape (stationery); Adhesive tapes for stationery and/or household purposes; Paper ribbons; Cardboard containers; Cabinets for stationery [office requisites]; Coated paper and paper boards; Bags, envelopes, pouches of paper or plastics, for packaging; Bags of paper or plastic, for preserving foodstuffs; Printing paper; Paper coffee filters; Gums (adhesives) for stationery or household purposes; Corrugated cardboard boxes; Paper pillowcases; Copier paper [stationery]; Electrocardiograph paper; Paper, card, cardboard and goods made from these materials, not included in other classes; Papier-mâché; Face towels of paper; Paper towels; Paper handkerchiefs; Tissues of paper; Paper washcloths; Table napkins of paper; Paper place mats; Toilet paper; Artists' materials; Teaching and instruction means (except apparatus); Cardboard articles; Plastic materials for packaging (not included in other classes); Painters brushes; Paper table covers; Thermal printing paper; Plastic cling film, extensible, for paletization; Storage pouches of paper or plastic; Bibs of coated paper; Dispensers of paper or cardboard for disposable gloves.
	Class 17:	Heat protection compounds; Heat protection barriers; Insulating gloves; Rubber, gutta-percha, gum, asbestos, mica and goods made from these materials and not included in other classes; Latex; Rubber; India rubber; Plastics in extruded form for use in manufacture; Packing, stopping and insulating materials; Stuffing rings; Air hoses; Hoses; Cords of rubber; Stuffing of rubber or plastic; Chemical fibres not for textile use; Rubber articles for vibration dampening; Rubber articles for vibration suppression; Vibration protection barriers; Closed-cell rubber foam for vibration suppression.
	Class 18:	Containers, namely travelling sets [leatherware]; Trimmings of leather for furniture; Key cases of leatherware; Bands of leather; Chin straps of leather; Imitation leather; Leather and imitations of leather and goods made therefrom; Leather pouches; Leather cases; Tool bags (empty); Envelopes of leather for packaging; Tool bags (empty); Umbrella handles; Umbrellas; Parasols and walking sticks; Trunks and travelling bags; Waist pouches; Gloves made of leather; Walking sticks.
	Class 20:	Beds (furniture); Office furniture; Domestic furniture; Kitchen furniture; Furniture of plastic materials; Laboratory furniture; Trolleys (furniture); Goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics; Trestles (furniture); Silvered glass (mirrors); Hand mirrors (cosmetic mirrors, toilet mirrors); Towel cabinets (furniture); Non-metallic furniture casters; School furniture; Brush mountings; Glass furniture; Hospital beds; Water beds, not for medical purposes; Garment covers; Dispensers for pills or capsules sold empty; Wall mounts of plastic for dispensing boxes; Plastic storage bags.
	Class 21:	Cleaning instruments (hand-operated); Hand-operated cleaning implements; Gardening gloves; Polishing gloves; Rubber household gloves; Gloves for household purposes; Washing cloths; Toothbrushes (electric or non-electric); Toothbrush holders; Toothbrush cases; Dental floss; Toothpicks; Back scratchers; Cups of paper or plastic; Metal boxes for dispensing serviettes; Wastepaper baskets; Paper plates; Paper towel dispensers; Toilet paper holders; Toilet roll dispensers; Toilet paper dispensers; Nozzles for sprinkler hose; Chamois leather for cleaning; Chamois leather for cleaning; Polishing leather; Toothpick holders, not of precious metal; Jugs, not of precious metal; Furniture dusters; Household, kitchen utensils and containers; Combs and sponges; Brushes (dishwashing-); Brushes; Animal bristles (brushware); Toilet brush holders; Toilet brushes; Articles for cleaning purposes; Charms for attachment to beverage glassware for identification purposes; Glass flasks (containers); Tumblers; Glass receptacles; Glass beverage ware; Glassware, porcelain and earthenware, not included in other classes; Shoe brushes; Hand towel dispensers; Metal boxes for dispensing serviettes; Soap dispensers; Portable beverage dispensers; Cotton ball dispensers; Heat reflective glass; Disposable plates; Towel holders; Sponge holders; Dishes and holders for soap.
	Class 22:	Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); Padding materials, not of rubber or plastics.
	Class 24:	Toilet gloves; Place mats, not of paper; Tablecloths, not of paper; Table cloths not of paper; Table linen, not of paper; Fabric of imitation animal skins; Unfitted fabric furniture covers; Protective loose covers for mattresses and furniture; Textiles and textile goods, not included in other classes; Bed and table covers; Bed covers of paper; Duvet covers; Bed linen; Bed pads; Bath linen (except clothing); Non-woven fabrics; Heat protection fabrics, other than for insulation purposes; Bed sheets, waterproof.
	Class 25:	Mittens; Gloves; Motorcycle gloves; Fishermen's smocks; Fishing vests; Waistcoats; Bibs, not of paper; Paper hats (clothing); Leather clothing; Leather shoes; Babies' pants; Clothing, footwear, headgear; Body linen (garments); Athletic footwear; Bath slippers; Mountaineering shoes; Insoles for footwear; Shoes for bicycles; Non-slipping devices for boots; Slippers; Wooden shoes; Fittings of metal for shoes and boots; Underpants; Shoes; Low shoes; Footwear uppers; Tips for footwear; Sports shoes; Skull caps; Headgear; Sun visors; Sportswear; Girdles; Tights; Anklets (socks); Socks and stockings; Sock suspenders; Aprons; Jump suits; Overalls; Waterproof capes; Cardigans; Coveralls; Hairdressing capes; Articles of clothing made of fleece; Paper clothing.
	Class 26:	Shoe ornaments not of precious metal; Buttons for clothing; Cloth patches for clothing; Shoe hooks; Shoe eyes; Shoe buckles; Laces for footwear; Lace and embroidery; Ribbons and braid; Buttons, hooks and eyes, pins and needles; Trouser clips for cyclists; Fastenings for suspenders; Hair-dyeing hoods; Carrying straps.
	Class 27:	Non-slip mats; Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors.
	Class 28:	Baseball gloves; Boxing gloves; Fencing gauntlets; Golf gloves; Gloves for games; Hockey gloves; Batting gloves [accessories for games]; Sport gloves; Paper face masks; Snowshoes; Protective padding for sports; Boxes and jockstraps (sporting articles); Sports bags; Paper face masks.
	Class 39:	Packaging and storage of goods; Reservations; Transport; Rental of wheelchairs.
	Class 40:	Dressmaking; Clothing alteration; Tailoring; Dyeing of cloth or clothing; Treatment of materials; Providing material treatment information.

4. The EUTM proprietor bears the costs, fixed at EUR 630.

REASONS

The applicant filed a request for revocation of European Union trade mark No 9 614 017 ‘CLEVISTO’ (word mark) (the EUTM). The request is directed against some of the goods covered by the EUTM, namely:

Class 9:

Class 11:

The applicant invoked Article 58(1)(a) EUTMR.

GROUNDS FOR THE DECISION

According to Article 58(1)(a) EUTMR, the rights of the proprietor of the European Union trade mark will be revoked on application to the Office, if, within a continuous period of five years, the trade mark has not been put to genuine use in the Union for the goods or services for which it is registered, and there are no proper reasons for non-use.

According to Article 58(2) EUTMR, where the grounds for revocation of rights only exist for some of the goods or services for which the European Union trade mark is registered, the proprietor’s rights must be revoked for those goods and services only.

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 28/06/2011.The revocation request was submitted on 19/12/2018. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 21/12/2018, the Cancellation Division duly notified the EUTM proprietor of the application for revocation and gave it a time limit of two months to submit evidence of use of the EUTM for the contested goods.

The EUTM proprietor did not submit any observations or evidence of use in reply to the application for revocation within the specified time limit.

According to Article 19(1) EUTMDR, if the proprietor of the European Union trade mark does not submit proof of genuine use of the contested mark within the time limit set by the Office, the European Union trade mark will be revoked.

In the absence of any reply from the EUTM proprietor, there is neither any evidence that the EUTM has been genuinely used in the European Union for the contested goods nor any indications of proper reasons for non-use.

Pursuant to Article 62(1) EUTMR, the EUTM must be deemed not to have had, as from the date of the application for revocation, the effects specified in the EUTMR, to the extent that the proprietor’s rights have been revoked.

Consequently, the EUTM proprietor’s rights must be partially revoked and deemed not to have had any effects as from 19/12/2018 for all the contested goods. The EUTM remains valid for all the uncontested goods and services.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the applicant are the cancellation fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein. In the present case the applicant did not appoint a representative within the meaning of Article 120 EUTMR and, therefore, did not incur representation costs.

The Cancellation Division

Arkadiusz GORNY

María INFANTE SECO DE HERRERA

Ana MUÑÍZ RODRÍGUEZ

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be submitted in writing at the Office within two months of the date of notification of this decision. It must be submitted in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be submitted within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

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