Guidelines on evidence of use issued by Trademark Office
In Productora de Jugos SA v Warner-Lambert Company (Resolution 6036), the Colombian Trademark Office (TO) has issued a resolution clarifying the evidence required to prove use of a mark that is subject to a cancellation for non-use action.
Productora de Jugos SA, a Colombian company, filed an action with the TO to cancel the registration for TUTTI FRUTTI owned by Warner-Lambert Company - now part of the Pfizer Group - on the grounds of non-use. The TO upheld the claim and took the opportunity to outline the evidence required to prove use of a mark.
The TO's guidelines included the following points:
- Invoices evidencing the volume of sales must cover the three years preceding the filing of the cancellation action. The volume of sales must be real, effective and consistent with the nature of the product or service bearing the trademark. Invoices must clearly show the trademark, internal references used in place of the mark are not sufficient.
- Accounting documentation demonstrating the volume and frequency of the sale of goods or services under the mark during the relevant period should be certified by the accounting officers of the company or independent auditors.
- Other material such as envelopes, advertising, videos, catalogues, brochures and samples of the product should be supported by documentation issued by independent auditors, media officers or any other relevant officers of the company demonstrating the effective dates of the manufacture, distribution and use of such material.
Luz Helena Adarve-Gomez, Cárdenas & Cárdenas, Bogota
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