In TVR Automotive v OHMI - TVR Italia (TVR ITALIA) (Judgment) [2015] EUECJ T-398/13 (15 July 2015) the General Court held that the OHIM Board of Appeal had been wrong to conclude that there was no genuine use of the TVR trade mark at the material time (February 2007) when the application in suit was filed by the applicant, an Italian company claiming somehow (and very optimistically) to be the successor to the business of the then-defunct British sports car manufacturer. Its trade mark comprised a TVR logo (in familiar form) with the word "Italia" appended in smaller letters.
The true successor to TVR's business opposed the application, and the Italian company demanded evidence of use. The opposition was rejected in relation to the goods for which use had been shown - which was not all the goods in the application, but it was the important ones. The Italian company appealed, and then filed for revocation. The appeal was stayed while that was sorted out. The Cancellation Division rejected the application for revocation on the grounds that genuine use had been shown, and the Italian company appealed against that, but out of time so the opposition proceedings then went ahead: the appeal was upheld, on the basis that genuine use from 28 January 2003 to 27 January 2008 had not been proved.
The case was based on the non-use of the TVR trade mark, although there appears to be no allegation that such non-use had lasted for five years: and in any case one of the trade marks involved had not even been registered for five years at the time. It received short shrift from the Court, which took a rather different view of what constitutes "genuine use" in relation to specialised, low-volume motor cars, making me wonder how the case ever got to Luxembourg in the first place.
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The true successor to TVR's business opposed the application, and the Italian company demanded evidence of use. The opposition was rejected in relation to the goods for which use had been shown - which was not all the goods in the application, but it was the important ones. The Italian company appealed, and then filed for revocation. The appeal was stayed while that was sorted out. The Cancellation Division rejected the application for revocation on the grounds that genuine use had been shown, and the Italian company appealed against that, but out of time so the opposition proceedings then went ahead: the appeal was upheld, on the basis that genuine use from 28 January 2003 to 27 January 2008 had not been proved.
The case was based on the non-use of the TVR trade mark, although there appears to be no allegation that such non-use had lasted for five years: and in any case one of the trade marks involved had not even been registered for five years at the time. It received short shrift from the Court, which took a rather different view of what constitutes "genuine use" in relation to specialised, low-volume motor cars, making me wonder how the case ever got to Luxembourg in the first place.
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