CANCELLATION DIVISION
CANCELLATION No 13553 C (REVOCATION)
Apple and Pear Australia Limited, Suite G01, 128-132 Jolimont Road, East
Melbourne Victoria 3002, Australia and Star Fruits Diffusion, 145 avenue de Fontvert,
84130 Le Pontet, France (applicants), represented by NautaDutilh SPRL, Chaussée
de la Hulpe, 120, 1000 Bruxelles, Belgium (professional representative)
a g a i n s t
Agroworld Edal S.L., Calle Rois de Corella, 10 – 1º – 3ª,46702 Gandía, Valencia,
Spain
(EUTM proprietor), represented by Arcade & Asociados, C/Isabel Colbrand, 6 – 5ª
planta, 28050 Madrid, Spain (professional representative).
On 17/11/2017, the Cancellation Division takes the following
DECISION
1. The application for revocation is upheld.
2. The EUTM proprietor’s rights in respect of European Union trade mark
No 9 555 145 are revoked in their entirety as from 24/08/2016.
3. The EUTM proprietor bears the costs, fixed at EUR 1 080.
REASONS
The applicants filed a request for revocation of European Union trade mark
No 9 555 145 (figurative mark) (the EUTM). The request is directed against all
the goods and services covered by the EUTM, namely:
Class 29: Meat, fish, poultry and game; Meat extracts; Preserved, frozen, dried and
cooked fruits and vegetables; Jellies, jams, compotes; Eggs, milk and milk
products; Edible oils and fats.
Class 31 Agricultural, horticultural and forestry products and grains not included in
other classes; Live animals; Fresh fruits and vegetables; Seeds, natural
plants and flowers; Foodstuffs for animals; Malt.
Class 35: Advertising; Business management; Business administration; Office
functions; Import and export; Retail and wholesale services, in shops and
via global computer networks of food and drink of all kinds.
The applicants invoked Article 58(1)(a) EUTMR.
Decision on Cancellation No 13553 C page: 2 of 3
PRELIMINARY REMARK
As from 01/10/2017, Regulation (EC) No 207/2009 and Regulation (EC) No 2868/95
have been repealed and replaced by Regulation (EU) 2017/1001 (codification),
Delegated Regulation (EU) 2017/1430 and Implementing Regulation (EU) 2017/1431,
subject to certain transitional provisions. All the references in this decision to the
EUTMR, EUTMDR and EUTMIR shall be understood as references to the Regulations
currently in force, except where expressly indicated otherwise.
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.
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 21/07/2011. The revocation request
was submitted on 24/08/2016. Therefore, the EUTM had been registered for more than
five years at the date of the filing of the request.
On 06/10/2016 the Cancellation Division duly notified the EUTM proprietor of the
application for revocation and gave it a time limit of three months to submit evidence of
use of the EUTM for all the goods and services for which it is registered.
On 11/01/2017 the EUTM proprietor requested an extension of the time limit of two
months which was duly granted by the Office on the same day.
The EUTM proprietor did not submit any observations or evidence of use in reply to the
application for revocation within the time limit.
According to 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 goods and services for
which it is registered 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 revoked in their entirety and
deemed not to have had any effects as from 24/08/2016.
Decision on Cancellation No 13553 C page: 3 of 3
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 applicants 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 applicants are the cancellation fee and the costs of representation, which
are to be fixed on the basis of the maximum rate set therein.
The Cancellation Division
Maria INFANTE SECO DE
HERRERA
Graziella MEDDE José Antonio GARRIDO
OTAOLA
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.
The amount determined in the fixation of the costs may only be reviewed by a decision
of the Cancellation Division on request. According to Article 109(8) EUTMR, such a
request must be submitted within one month of the date of notification of this fixation of
costs and will be deemed to be submitted only when the review fee of EUR 100 has
been paid (Annex 1 A(33) EUTMR).