Wednesday, 21 July 2010

An affidavit is all that's needed

In a decision in Case R 1153/2009-1 given on 27 May 2010 mentioned in the latest Alicante News, the First Board of Appeal held that genuine use may be proved with nothing more than an affidavit by an employee of the party required to prove it. There is no need for supporting evidence, if the affidavit is detailed and convincing. Alicante News says: ‘The Board held that that doubts concerning the trustworthiness of the declaration may always exist but must be based on objective elements, such as the existence of contradictions in the declaration or of manifestly implausible statements or suspiciously vague or reticent wording.’ The declaration was made by the managing director of the opponent, and far from this raising questions about his impartiality (which is how the opposition division looked at it) the Board considered that he was simply the best person to provide this evidence. It said:
The Board does not share the Opposition Division’s position that declarations which contain sales figures should be proved with invoices because the declaration, provided it complies with the formal and substantial requirements listed above, is already proof. In addition, as the opponent suggests, since it would be easy to produce fake invoices (or falsify genuine ones), the submission of invoices would not increase substantially the reliability of the declaration.

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