In Case T-196/13, Lina M.Stal-Florez Botero filed for application of the above mark for goods in Classes 16, 20 and 24. Nanu-Nana Joachim Hoepp GmbH & Co. KG filed an invalidity application on the basis of earlier German right NANA registered among others for goods in Classes 16, 20 and 24.
OHIM and the General Court rejected the application for a declaration of invalidity in its entirety on the ground that genuine use of the earlier mark, for the purposes of Article57(2) and (3) of CTMR, had not been proved.
The affidavits and photos submitted by the applicant could not prove the time and extent of use of the mark in respect of the goods depicted.
Furthermore, the affidavits, drawn by an employee of the company, with therefore less evidentiary value, did not constitute conclusive evidence as they did not allow to draw, with certainty, any conclusions as to the duration and extent of use of the earlier mark in relation to the specific categories of goods within the classes concerned. For example, in 2007, it is stated in the affidavits, in respect of Class 16, that the applicant sold 287 types of goods and around 9 million products, with a total turnover of approximately EUR17 million. Apart from quantitative indications, the affidavits did not contain any additional details as regards the goods or types of goods sold.
Furthermore, the photos that were provided depicting certain goods in the three classes in question do not allow any conclusions to be drawn as to the extent and duration of use in relation to the goods depicted in those photos. In that regard, the photos are not dated and, in response to a question posed at the hearing, the applicant’s representative was not able to give the date on which the photos in question had been taken. Consequently, even if the goods depicted in the photos were marketed, there is nothing which makes it possible to establish, from those photos, the date on which or the period for which those goods were marketed.
As regards the nature of use, although the photos submitted showed that the term ‘NANA’ featured on product labels and stickers attached to the products, it was not certain that that could constitute an affixing of the sign to the goods for the purpose of proving use ‘in relation to goods’ within the meaning of the case-law. More specifically, it was not totally certain that the relevant public confronted with the product labels and stickers in a Nanu-Nana shop would actually perceive them as a trade mark designating a specific product, rather than as a company or shop name.