|The mark in use|
|A different kind of Vampire Vodka, this |
one seems to be available online
- The photograph and promotional text did not “substantiate the place, time or still less extent of the use”.
- Five of six of the invoices date from the period between the applications being filed and published, and in these circumstances although they can be taken into account “the duration and the frequency of the use adduced [by them] does not support the conclusion that the products bearing the name of the earlier mark were marketed continuously over the relevant period”.
- No information was provided about the identities of the companies in the invoices, nor the relationship between the company issuing it and the opponent.
- It had not been established that the company on the invoice had used the mark with the opponent’s consent.
- It had not been established that the mark had been used publicly and outwardly.
- The use on the invoices equating to 900 units a month was a “small” quantity in the relevant market (ie, alcoholic drinks). In fact, “the sales volume is marginal bearing in mind the average monthly consumption of vodka on the Romanian market” (How much, hic, vodka, is marginal, to, hic, consume, in an average, hic, month? Slurs Merpel).
- Accordingly, 2,592 bottles of vodka over three months was not enough to establish genuine use in the circumstances, notwithstanding the finding in VITAFRUIT that 3,516 bottles of concentrated fruit juice was enough over 11 months.
- The six invoices could not be considered as merely samples of a greater batch of sales and/or use.