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Spain - Weight of evidence in cancellation actions on the grounds of lack of use.
The Spanish Supreme Court (Civil Chamber, Judgment 716/2009 - cassational appeal 1540/2005) has upheld a prior decision of the IP specialised Barcelona Court of Appeals in a Spanish trade mark cancellation case.
The respondent’s trade mark (claiming class 29: olive oil) was challenged on the grounds of lack of use. The Court of First Instance awarded the claim, but this was reversed by the Barcelona Court of Appeals. The Court of Appeals found that sales amounting little more than Euro.- 2,000 in two years plus other evidences as labels, invoices, catalogues and clients' affidavits were – if not “exaggerated” (literal)- enough to prove “real and effective use in Spain”.
Which is somehow surprising for this Class 46 member, being Spain the biggest producer of olive oil (800,000 Tons in year 2009) and its biggest consumer (Euro 1,314 million in internal sales in 2009 only).
Tags: Spain, cancellation action, real and effective use.,
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09 April 2010 @ 10.00
I beg to disagree that this decision would be surprising. "Real and effective use" of a trademark does not require any particular quantity, also not in a country which like Spain produces a very big quantity of the good in question. Small manufacturers and traders deserve the same trademark protection as big ones. Only token use is insufficient.
