CANCELLATION DIVISION
CANCELLATION No 14 912 C (REVOCATION)
Silentnight Group Limited, Long Ing Business Park, Long Ing Lane, Barnoldswick,
Lancashire BB18 6BJ, United Kingdom (applicant), represented by Groom Wilkes &
Wright LLP, The Haybarn, Upton End Farm Business Park, Meppershall Road,
Shillington, Hitchin, Hertfordshire SG5 3PF, United Kingdom (professional
representative)
a g a i n s t
Electrolux Professional S.p.A., Viale Treviso 15, 33170 Pordenone, Italy (EUTM
proprietor), represented by Carl Wendt, AB Electrolux, Group Intellectual Properties,
St. Göransgatan 143, 105 45 Stockholm, Sweden (employee representative).
On 20/11/2017., 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 2 575 736 are revoked as from 04/05/2017 for all the contested goods,
namely:
Class 20: Furniture, in particular for the household and catering sectors.
3. The European Union trade mark remains registered for all the uncontested
goods, namely:
Class 7: Machines in particular for cleaning, washing and drying.
Class 11: Apparatus for lighting, heating, steam generating, refrigerating,
drying, ventilating, water supply and sanitary purposes, except for
showers and shower equipment.
4. The EUTM proprietor bears the costs, fixed at EUR 1 080.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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.
Decision on Cancellation No 14 912 C page: 2 of 3
REASONS
The applicant filed a request for revocation of European Union trade mark
No 2 575 736 (figurative mark) (the EUTM). The request is directed
against some of the goods covered by the EUTM, namely:
Class 20: Furniture, in particular for the household and catering sectors.
The applicant invoked Article 51(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 04/03/2004. The revocation request
was submitted on 04/05/2017. Therefore, the EUTM had been registered for more than
five years at the date of the filing of the request.
On 19/05/2017, 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 the contested goods.
On the request of the EUTM proprietor dated 28/07/2017, its time limit to submit
evidence of use has been extended until 19/10/2017. On 19/10/2017, the EUTM
proprietor informed the Office that for economic reasons it will not collect and fill
evidence of use. Thus, 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 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.
Decision on Cancellation No 14 912 C page: 3 of 3
Consequently, the EUTM proprietor’s rights must be partially revoked and deemed not
to have had any effects as from 04/05/2017 for all the contested goods. The EUTM
remains valid for all the uncontested goods.
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.
The Cancellation Division
María
INFANTE SECO DE
HERRERA
Cindy BAREL 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).