Source: EURLEX
Language: en
Format: md

Case T‑336/15

Windrush Aka LLP

v

European Union Intellectual Property Office

(EU trade mark — Revocation proceedings — EU word mark The Specials — Genuine use — Article 51(1)(a) of Regulation (EC) No 207/2009 — Consent of the proprietor of the trade mark — Article 15(2) of Regulation No 207/2009)

Summary — Judgment of the General Court (First Chamber), 22 March 2017

1. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Criteria for assessment — Assignment of the rights relating to the contested trade mark by a contract prior to registration of that trade mark — Irrelevant

   (Council Regulation No 207/2009, Arts 9(1), first sentence, 15, 51 and 55)
2. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Use by a third party with the consent of the trade mark proprietor

   (Council Regulation No 207/2009, Art. 15)

1. The proprietor of a contested trade mark enjoys, under the first sentence of Article 9(1) of Regulation No 207/2009, exclusive rights in that mark. It is apparent from the provisions of Articles 51 and 55 of Regulation No 207/2009 that an EU trade mark enjoys a presumption of validity. It follows that an applicant cannot usefully rely, in support of its action, concerning revocation proceedings based on Article 51(1)(a) of Regulation No 207/2009, on the alleged assignment to a third party of the rights relating to a name, before the registration of that name as a trade mark, to establish that that trade mark was not put to genuine use by the proprietor or with his consent, for the purposes of Article 15 of that regulation.

   (see paras 49, 50)
2. Where the proprietor of an EU trade mark maintains that use of that mark by a third party constitutes genuine use of that mark he is, for the purposes of Article 15 of Regulation No 207/2009, claiming implicitly that that use was made with his consent.

   (see para. 56)

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