CANCELLATION No 15 277 C (REVOCATION)
Sensotek GmbH, Heinrich-Otto-Str. 1, 73262 Reichenbach, Germany (applicant),
represented by Rüger, Barthelt & Abel, Webergasse 3, 73728 Esslingen, Germany
a g a i n s t
Senso Tecnologie S.R.L., Sig. Ra Shao Jianghong, Via Cropani, 108, 00173 Rome,
Italy (EUTM proprietor), represented by Pasquale Gallo, Via dei Corridori n. 48, 00193
Rome, Italy (professional representative).
On 12/01/2018, the Cancellation Division takes the following
1. The application for revocation is upheld.
2. The EUTM proprietor’s rights in respect of European Union trade mark
No 10 028 678 are revoked as from 21/07/2017 for all the contested goods and
3. The EUTM proprietor bears the costs, fixed at EUR 1 080.
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have been repealed and replaced by Regulation (EU) 2017/1001 (codification),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 15 277 C page: 2 of 4
The applicant filed a request for revocation of European Union trade mark
No 10 028 678 “ ” (figurative mark) (the EUTM). The request is
directed against all the goods and services covered by the EUTM, namely:
Class 9: Apparatus and instruments for conducting, switching, transforming,
accommodating, regulating or controlling electricity, scientific, nautical,
surveying, optical, weighing, measuring, signalling, checking, life-saving
and teaching apparatus and instruments; excluding electronic
calorimeters, photovoltaic panels and other goods in the field of solar
Class 11: Apparatus for lighting, steam generating, cooking, refrigerating, drying
and ventilating; excluding photovoltaic panels and other goods in the
field of solar energy.
Class 35: Business administration and office functions excluding services in the
field of solar energy.
Class 37: Building/erection of buildings, installation, building construction;
excluding services in the field of solar energy.
Class 42: Scientific and technological services and research and design relating
thereto, industrial analysis and research services, design and
development of computer hardware and software; excluding services in
the field of solar energy.
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 27/06/2012. The revocation request was
submitted on 21/07/2017. Therefore, the EUTM had been registered for more than five
years at the date of the filing of the request.
Decision on Cancellation No 15 277 C page: 3 of 4
On 02/08/2017, 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 and services.
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 and services 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. An earlier date, on which one of
the grounds for revocation occurred, may be fixed at the request of one of the parties.
In the present case, the applicant has requested an earlier date. However, in exercising
its discretion in this regard, the Cancellation Division considers that it is not expedient
in this case to grant this request, since the applicant has not proven sufficient legal
interest in support of its request.
Consequently, the EUTM proprietor’s rights must be revoked and deemed not to have
had any effects as from 21/07/2017 for all the contested goods and services.
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
Claudia SCHLIE Raphaël MICHE José Antonio GARRIDO
Decision on Cancellation No 15 277 C page: 4 of 4
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 Rule 109(8) 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).