6-2-5 Must May Cannot & Cancellation

1. Revocation and invalidity grounds be combined in a single application but be subject to separate applications and entail the payment of separate fees.

2. The Office determine ex officio genuine use of earlier marks. It has no role in collecting evidence itself. Even proprietors of apparently well-known marks submit evidence to prove genuine use of their marks.

3. The applicant for revocation prove that the trade mark has become the common name in trade for the product or service in question after the date of registration of the EUTM, although facts or circumstances that took place between application and registration be taken into account.

4. One of the arguments that the EUTM proprietor put forward against the invalidity applicant’s claim is evidence that the EUTM has acquired distinctive character following use.

5. The General Court has held that whether a trade mark should be registered or should be declared invalid be assessed on the basis of the situation at the date of its application, not of its registration (judgment of 03/06/2009, T-189/07, Flugbörse, EU:T:2009:172; confirmed by order of 23/04/2010, C-332/09 P, Flugbörse, EU:C:2010:225).

6. As in opposition proceedings, the proprietor of the contested EUTM require the invalidity applicant to submit proof of genuine use of its earlier trade mark.

7. The admissibility check result in the identification of absolute and/or relative admissibility deficiencies in the application. Absolute admissibility deficiencies are those that be remedied by the applicant and will automatically lead to the application being considered inadmissible