Velikov and Co Ltd, as a family company, laid the foundation of tradition and know-how in growing and roasting own-produced sunflower seeds back in 1991. In 2002, Velikov & Co Ltd registered Solei trademark in the Patent Office of Republic of Bulgaria, guaranteeing the freedom only Velikov & Co Ltd to realize products under the Solei trademark. In 2009 the company registered European Union trade mark Solei, which is protected on the territory of the whole European community.
All Nuts s.r.l, Romania filed a request for revocation of the European Union trade mark reg. № 7 562 408 ‘SOLEI’ (word) at EUIPO against all the goods covered by the EUTM for not being put to genuine use during a five-year period. The proprietor Velikov & Co Ltd., Bulgaria is represented by IP Consulting Ltd.
According to Article 58(2) EUTMR, where there are grounds for revocation for only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods only. This is applicable only to trademarks that cover a wide spectrum of goods and services. They are considered to be broad if it is possible to identify within them a number of subcategories that are viewed independently. The aim is to ensure that trade marks, which have not been used for a given category of goods are not rendered unavailable.
Court’s position:
“In order to examine, in a given case, whether use of the contested mark is genuine, an overall assessment must be made taking account of all the relevant factors in the particular case. That assessment implies a certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under that trade mark may be compensated for by high intensity of use or a certain constancy regarding the time of use of that trade mark or vice versa”
In light of all the evidence submitted, the EUTM proprietor’s rights in respect to the European Union trade mark remain as of 17/05/2019 for parts of Classes 29 (preserved, dried and cooked fruits; including prepared nuts, almonds, peanuts, dates, raisins, fruit chips) and Class 31 (nuts [fruits], almonds, hazelnuts, peanuts). Generally, the trade mark remains registered for the classes for which it is predominantly used.
