CANCELLATION No 13 685 C (REVOCATION)

Trademarkers Merkenbureau C.V., Amersfoortsestraatweg 33 B, 1401 CV Bussum, The Netherlands (applicant)

a g a i n s t

Meteor Online Learning Limited, Delta Place, 27 Bath Road, GL53 7TH, Cheltenham, Gloucestershire, United Kingdom (EUTM proprietor), represented by Wynne-Jones, Laine & James LLP, Essex Place 22 Rodney Road, GL50 1JJ, Cheltenham, Gloucestershire, United Kingdom (professional representative).

On 15/09/2017, 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 9 209 586 are revoked in their entirety as from 12/09/2016.

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

REASONS

The applicant filed a request for revocation of European Union trade mark No 9 209 586 ‘METEOR’ (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 9:        Apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers; image and/or sound carriers, including video tapes, audio CDs, CD-ROMs, interactive CDs (CDIs), laser discs, audio CDs, CD-ROMs, laser discs, optical discs and photograph CDs; audio visual and audio visual recordings; data processing equipment and computers for educational use; computer databases; computer apparatus for educational use; computer-based training apparatus; computer programs; computer software; educational software; educational programs; computer software for the Internet, namely computer software for providing access to the Internet, for designing, maintaining and managing websites, for exploring and visiting websites (browsing), for indexing and retrieving information on the Internet, for electronic transactions and for sending and receiving electronic messages via the Internet; software for hosting; computer programs and computer software for creating online educational and learning environments and for creating web-based educational and learning computer applications; electronic publications, including websites; electronic educational publications; teaching and instructional apparatus and instruments; instruments, computer software and computer programs, containing test and assessment material.

Class 16:        Paper, cardboard and goods made from these materials, not included in other classes; photographs; stationery; printed matter; printed publications; books, brochures, manuals, magazines, newsletters and leaflets; advertising literature; instructional and teaching materials; manuals for instructional purposes; educational publications; printed test and assessment material; bookbinding material; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus).

Class 35:        Retail services (including sales over the Internet) relating to the sale of educational software, educational texts, instructional and teaching materials and apparatus, educational puzzles and games, sound and video recordings, printed matter, posters, photographs, educational publications, mugs, computer mice, computer mouse mats, fridge magnets, holders for diaries, mobiles and clothing; advertising and promotion of educational goods via an internet web-site; business administration services for the processing of sales made on the Internet; provision of space on web sites for advertising goods and services; advertising services; marketing services; information, advice and assistance relating to all of the aforesaid services.

Class 41:        Education; provision of training; teaching; courses; coaching (instruction); educational activities, including provided via the Internet, correspondence and video conferencing; development of instructional and teaching material; designing, compiling, arranging and holding examinations and assessment methods; computer assisted educational services; computer based educational services; providing online educational services; education by way of creating online educational and learning environments and creating web-based educational and learning computer applications; education via the Internet (e-learning); providing information on education via the Internet; education and entertainment; arranging for students to participate in educational activities; arranging for students to participate in educational courses; arranging for presentations for educational purposes; organising trade shows, conferences, conventions and seminars for educational or cultural purposes; education services in the field of information and computer technology; electronic library services; electronic publishing; electronic text publishing services; publication, lending and distribution of books, newspapers, magazines, periodicals and other printed matter, learning resources and teaching material, including via electronic channels, including the Internet; providing educational information via online services from databases or via the Internet; databases containing educational and cultural information; information, advice and assistance relating to the aforementioned services.

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

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.

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 14/12/2010. The revocation request was filed on 12/09/2016. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 20/09/2016, 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. This time lime has been extended until 25/02/2017 at the request of the EUTM proprietor.

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 Rule 40(5) EUTMIR, if the proprietor of the European Union trade mark does not provide 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 any of the goods and services for which it is registered nor any indications of proper reasons for non-use.

Pursuant to Article 55(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 12/09/2016.

COSTS

According to Article 85(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 Rule 94(3) and (6) EUTMIR and Rule 94(7)(d)(iii) 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 93 EUTMR and, therefore, did not incur representation costs.

The Cancellation Division

Raphaël MICHE

Cindy BAREL

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.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Cancellation Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month of the date of notification of this fixation of costs and will be deemed to be filed only when the review fee of EUR 100 has been paid (Annex 1 A(33) EUTMR).