CANCELLATION No 14092 C (REVOCATION)

Hesco Bastion Ltd., Cross Green Industrial Estate Unit 37, Knowsthorpe Gate, Leeds, Yorkshire LS9 ONP, United Kingdom (applicant), represented by Thomas Louis Brand, 17 Hanover Square, City of London, London W1S 1BN, United Kingdom (professional representative)

a g a i n s t

Terre Armee Internationale Sas, 1 bis, rue du Petit Clamart, 78140 Velizy Villacoublay, France (EUTM proprietor), represented by Dehns, St Bride's House, 10 Salisbury Square, London EC4Y 8JD, United Kingdom (professional representative).

On 05/07/2017, 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 1 756 998 are revoked in their entirety as from 25/11/2016.

3.        The EUTM proprietor bears the costs, fixed at EUR 1 080.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 1 756 998         “TERRABLOCK” (word mark). The request is directed against all the goods and services covered by the EUTM, namely:

	Class 19: Buildings, being wholly or principally non-metallic; mechanically stabilised earth structures; earth retaining structures; non-metallic articles for use in civil engineering construction; non-metallic reinforcement for civil engineering construction; non-metallic panels and blocks for use in forming the facing of mechanically stabilised earth structures; articles and materials for use in the construction of arches, bridges and earth structures; concrete articles; concrete arches, concrete bridges; earth stabilising members; blocks, panels, enclosures, reservoirs, tanks and silos; parts and fittings for all the aforesaid goods.
	Class 37: Building construction; building maintenance, demolition and repair services; construction engineering services; construction and repair of roads, runways, arches, bridges, bridge abutments, stabilised earth structures, embankments, retaining walls, sea walls, tunnels, culverts, enclosures, reservoirs, tanks and silos; earth moving; land reclamation; excavating; dredging; supervision or construction; information and advisory services relating to the aforesaid; preparation of reports relating to the aforesaid.
	Class 42:Engineering consultancy, research and development; civil engineering services; civil and structural engineering consultancy; research and development; building inspection services; surveying services; architectural services; preparation of architectural plans, reports and engineering drawings; computer programming; computer software design; preparation of reports relating to engineering construction services, to civil engineering services, to maintenance services, to demolition services and to repair services; provision of information and advice relating to the aforesaid 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 10/09/2002. The revocation request was filed on 25/11/2016. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request.

On 02/01/2017, 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 all the goods and services for which it is registered.

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 25/11/2016.

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.

The Cancellation Division

Raphaël MICHE

Manuela Gabriele Ulrike MIEHLE

Carmen SÁNCHEZ PALOMARES

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 from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.