In case T-204/12Vila Vita Hotel und Touristik v OHMI, ViaVita (France) applied for the sign VIAVITA for services in classes 36 to 45. Vila Vita Hotel und Touristik GmbH (Germany) brought an opposition on the basis of earlier Austrian word mark VILA VITA PARK registered for travel agency services in Classes 39 and 45 and earlier German figurative mark VILA VITA registered for goods and services in classes 3, 35, 37, 39 and 41 (see right). The applicant requested proof of genuine use of the earlier rights.

Whereas the opposition division partially upheld the opposition, the First Board of Appeal rejected the opposition finding that the opponent had not demonstrated genuine use of its rights according to article 42 (2) and (3) together with Article 15 (1) a) of CTMR .

The General Court dismissed the appeal and also found that the use of the earlier rights constituted a “substantial modification” with respect to the way they were registered .

Regarding the earlier Austrian mark, the opponent only brought evidence of the use of VILA VITA and the omission of the distinctive word element PARC is not marginal. Actually, evidence of the use under the name “vila vita hotel & feriendorf panno[n]ia” (as referring to a holidays village) shows a substantial modification of the use with respect to the registered sign.

As regards the earlier German right, the opponent brought evidence of the following use:

The court noted that the figurative elements are so completely different (the globe has been replaced by a butterfly, palm trees o leaves) that it is not possible to recognize visually the German sign such as it is registered. Therefore, there is lack of genuine use for both earlier signs and the opposition cannot succeed.