Requirement of proof of use in case of opposition against trademark registration in the European Union
Under European Union trademark implementing regulation (EUTMIR) there is a requirement for the trademark use, which determines that the EU trademark has to be put into use within five years after the date of publication.
Accordingly, in case the dispute arises regarding the trademark similarity and possibility of EU trademark registration being rejected, the owner of the opposed trademark may ask the owner of the earlier mark to provide evidence of the use.
Article 22(3) of EUTMIR determines that this evidence shall show the details of place and time where the trademark has been used as well as the nature of the use within the disputed classes of goods and services.
The evidence of use f the European Union trademark must be precise and indisputable in order for it to be sufficient. For instance, if in the evidence provided the precise place and dates of use will not be mentioned, the Opposition Division of EUIPO may declare the evidence insufficient. Moreover, if from the documents of evidence provided it s not clear, which EU trademark has been used, this evidence will be declared inadmissible.
Furthermore, it has to be kept in mind that the opposite side (owner of the opposed trademark) as well as the Opposition Division may request the evidence to be submitted in the language of the proceedings. If the evidence is submitted in different language, the Opposition Division has a right to reject the evidence.
It has been determined in the case law that evidence may not be probable and cannot consist of suppositions. The evidence has to be objective and has to show the sufficient use of a trademark in the European Union or other relevant territory in the disputed classes of goods and services in order for it to be admissible and sufficient.
To find out more about trademark registration in the European Union or opposition against EU trademarks, please contact our English-speaking lawyers at firstname.lastname@example.org.
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