The judgment of the General Court in case T-108/08 teaches us again how tricky proof of genuine use can be. Davidoff filed GOOD LIFE as a CTM in connection with Class 3 goods (back) in 2000, but was confronted by I. Kleinakis & Sia OE of Athens, Greece who filed an opposition on the basis of an identical Greek TM registered also for Class 3 goods. Davidoff requested proof of use and Kleinakis offered:

Decision No 2910/2002 of 8 April 2002 of the Greek  Trade Marks Administrative Committee rejecting a cancellation action for non-use filed by Davidoff against Kleinakis’ GOOD LIFE registration in Greece and the said cancellation action;

10 invoices dated between 17 May 2000 and 27 September 2005;

17 photocopies of photos showing the interior and exterior of retail outlets, allegedly clients of Kleinakis; and

scanned photos of three products bearing the GOOD LIFE trade mark.

The Opposition Division rejected the opposition mainly on the ground that the documents on which the Greek TM Committee’s decision was based “were neither specified nor produced”.  The Board of Appeal thought otherwise holding that the Greek decision which rejected Davidoff’s cancellation action and ruled that there was genuine use of Kleinakis’ earlier mark in Greece was ‘very relevant for the case at hand’. The Board held that the evidence provided by Kleinakis as a whole, especially taking into account the relevance of the Greek decision, were sufficient to prove genuine use.   

The General Court took a different view. First, it looked at the Greek TM Committee’s decision with sound skepticism, as ‘it only briefly refers to the documents submitted and the arguments raised by the parties during the procedure that led to its adoption’ and pointed out that the said document “were not put in the file before OHIM and were therefore not available to the Board of Appeal. Indeed, the evidence submitted by the intervener during the proceedings before OHIM did not contain any document from the file of the proceedings before the Greek authority. In those circumstances, the Board of Appeal was not in a position to understand the reasoning, including the assessment of the evidence, or to identify the evidence on which the Greek decision finding a genuine use of the earlier mark was based.”

The invoices (actually the two of them that were relevant as far as time was concerned) were of no big help either, as apparently they were not correctly translated with the column translated as indicating ‘quantity’ in fact reflecting ‘price per unit’ in Greek drachmas (it’s an old case), which, understandably, gives things a whole new perspective.

Accordingly, having chopped up everything into little pieces, the General Court, wisely in this blogger’s opinion, annuled the BoA’s decision.