Board decision annulled due to incorrect evaluation of evidence

European Union
In Zino Davidoff SA v Office for Harmonisation in the Internal Market  (OHIM) (Case Τ-108/08, July 15 2010), the General Court has annulled the decision of the Second Board of Appeal of OHIM.
 
Zino Davidoff SA applied for the registration of GOOD LIFE as a Community trademark (CTM) for goods in Class 3 of the Nice Classification (Application 00709641).  
 
The application was opposed by Greek company I Kleinakis kai SIA OE on the basis of its Greek trademark GOOD LIFE (Registration 102703) for goods in Classes 3 and 5. Notably, Kleinakis also owned the CTM GOOD LIFE (Registration 001663327), which had been filed only a month earlier than the opposed trademark.
 
Zino Davidoff requested proof of genuine use in Greece of the earlier mark. Kleinakis submitted, among other things, a copy of a decision by the Greek Administrative Trademarks Committee that rejected an action for the cancellation of the mark on which the opposition was based, as well as some invoices.
 
The Opposition Division of OHIM determined that the opposition lacked merit and rejected it in its entirety. In particular, the Opposition Division found that genuine use of the earlier mark had not been proved, pointing out that:
  • the documents on which the Greek decision was based were neither specified nor produced; and
  • out of the documents produced as proof of genuine use, only two related to the reference period.
On appeal, the Second Board of Appeal of OHIM reversed the decision of the Opposition Division. It held that the Greek decision was relevant for the case at hand and that some of the invoices (dating from May 2000 and January 2001) were sufficient to establish genuine use.
 
The General Court disagreed.
 
First, the court held that the Greek decision was not relevant, as it was only of limited probative value on the issue of genuine use and lacked conclusive evidence of use. According to the court, the Board of Appeal had breached its duty of diligence by taking into court a national decision that was based on less than conclusive evidence.
 
In addition, with regard to the actual evidence submitted before OHIM, the General Court found that, due to an error in translation, the board had wrongly inferred that one of the invoices established the sale of 19,287 items. In fact, that number referred to the price of the goods in Greek drachmas, and only 40 items had been sold.
 
In light of the limited probative value of the national decision and the erroneous assessment of the evidence, the court concluded that there were sufficient grounds for the annulment of the board’s decision.
 
Eleni Lappa, Drakopoulos Law Firm, Athens

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