Following yesterday's post on the Court of First Instance's non-English decision in Lidl, here is a little report, kindly furnished for the IPKat by his good friend Tigga, from Hammonds. Writes Tigga:
"The case concerned an application by Rewe to register the mark SALVITA for goods in classes 5, 29, 30 and 32. It was opposed by Lidl on the basis of a registration for the mark SOLEVITA, registered as a national mark in Germany and covering goods in classes 29, 30 and 32. Rewe requested proof of use and Lidl filed a declaration from their international sales director giving figures for sales under mark in Germany, a list of the goods sold under the mark and examples of packaging (undated).Thanks, Tigga, says the IPKat. It's so lovely to know what the CFI has ruled.
The Opposition Division held that Lidl had not demonstrated real and serious use of the national mark. In particular, there was no evidence to support the figures and it was not clear that the packaging came from the relevant time period. Lidl unsuccessfully appealed to the First Board of Appeal and made a subsequent appeal to the CFI.
Rejecting the appeal, the CFI held that proof of use cannot be shown by probabilities or presumptions but rather should be based upon concrete and objective elements. While the declaration and the list could contribute to a finding of real and serious use and were not completely irrelevant, an overall impression had to be taken on the evidence. There were certain elements which Lidl could have furnished to support its assertion, such as invoices, catalogues and adverts, that it did not provide. As a result the CFI concluded that insufficient evidence had been shown.
Next, the CFI rejected the arguments that the BoA had violated Lidl's rights to be heard and violated Article 74 on the basis that Rewe had not disputed the proof. In respect the argument that they had not been heard, the CFI concluded that the need to be heard extends to all elements of fact or law which lead to the decision, but not the final position itself. As regards the principle under Art. 74, it was for Lidl to prove the use once the evidential burden had been placed upon them by Rewe's request that they prove use of the mark".