Declaration of invalidity of the EU trade mark
Recent decision of the Board of Appeal in the European Union
In the recent decision of the fourth Board of Appeal in the European Union in case R 892/2016-4, Applicant or Appellant AWG Allgemeine Warenvertriebs GmbH filed an application for a declaration of invalidity of a European Union trade mark against Respondent or EUTM Proprietor Antonio Benitez Gomez.
On 3 October 2014, Antonio Benitez Gomez (‘the EUTM proprietor’) obtained registration of a figurative mark Little Kings Boutique Infantil as a European Union trade mark for the following goods and services:
Class 25 – Clothing; footwear; headgear;
Class 35 – Import-export and retailing and wholesaling in shops and via the Internet of clothing, footwear and headgear.
On 29 January 2015, an application for a declaration of invalidity of a European Union trade mark was filed by AWG Allgemeine Warenvertriebs GmbH and it was based on the earlier German trade mark for the word mark LITTLE KING registered on 3 June 1994 and renewed until 30 June 2023 for the following goods:
Class 25 – Clothing, headgear; all the aforesaid goods being clothing for babies, infants and children.
The application for a declaration of invalidity was directed against part of the goods and services of the contested mark and was based on all the goods of the earlier mark. By decision of 19 April 2016, the Cancellation Division rejected the application for a declaration of invalidity in its entirety and ordered the cancellation applicant to bear the costs. On 13 May 2016, the cancellation applicant filed a notice of appeal.
On 17 August 2016, the cancellation applicant withdrew its appeal.
Decision of the Board of Appeal in the European Union
As a consequence of the withdrawal of the appeal, the appeal proceedings have become without purpose and were closed accordingly. The decision of the Cancellation Division became final, including its decision on costs, and the European Union trade mark stayed on the register for all the goods and services it was registered for. The cancellation applicant (appellant), who withdrew its appeal, is considered the losing party and had to bear the costs of the appeal proceedings. The appellant also bears the costs of the cancelation proceedings in accordance with the contested decision.
On those grounds, the Board of Appeal took a note of the withdrawal of the appeal; declared the cancellation and the appeal proceedings closed; ordered the appellant to bear the costs incurred by the respondent in the cancellation and the appeal proceedings; and fixed the amount of costs for the cancellation and appeal proceedings to be paid by the appellant to the respondent.
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