5-6-1 Proof of Use

According Article 42(2) and (3) CTMR, if the applicant so requests, the opponent shall furnish proof that, during the period five years preceding the date publication the contested trade mark, the earlier trade mark has been put genuine use the territories which it is protected connection the goods or services respect which it is registered and which he cites as justification his opposition, or that there are proper reasons non-use.

According the same provision, the absence of such proof the opposition must be rejected.

The applicant requested that the opponent submit proof of use of the trade mark which the opposition is based.

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According Article 42(2) and (3) CTMR, the earlier mark can only be subject the request proof of use when it has been registered not less than five years at the date of publication of the contested trade mark.

the present case the contested trade mark was published 25/06/2013 and earlier trade mark No (…) was registered 24/04/2009. Therefore, the request proof of use is inadmissible.

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The request was filed due time and it is admissible given that the earlier trade mark was registered more than five years prior the publication the contested application.

27/05/2014, the opponent was given two months to file the requested proof of use.

The opponent did not furnish any evidence concerning the use the earlier trade mark which the opposition is based. They did not argue that there were proper reasons non-use either.

According Rule 22(2) CTMIR, if the opposing party does not provide such proof before the time limit expires, the Office shall reject the opposition.

Therefore, the opposition must be rejected pursuant Article 42(2) and (3) CTMR and Rule 22(2) CTMIR.