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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Detailed affidavit by employee of applicant may be sufficient to prove genuine use

The First Board of Appeal, in a decision of 27 May 2010 just highlighted in the latest Alicante News, held that genuine use may be proven with just an affidavit by an employee of the concerned party without any supporting evidence, provided that the affidavit was detailed and convincing. From the summary according to Alicante News:

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 Board considered that the information in the declaration appears reasonable and plausible. He signer explains that the mark was first used in 1997 in Germany and has been continually used since. He states that the goods are mattresses and frames. He explains why the LEGRA mark is sometimes used in combination with ROWA. He explains that the mark is not advertised as a consumer product to the public because the beds are upmarket and are the subject of selective distribution. He comments in detail on the rest of the evidence that has been submitted. He gives statistics as regards the turnover for selling LEGRA goods and advertising them, during the relevant period, year by year. The Board could not find anything in the declaration that might generate doubts about its trustworthiness.

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.

Posted by: Mark Schweizer @ 16.12
Tags: OHIM, genuine use, Board of Appeal, proof, ,
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