In Case T-581/11, in 2007 Bayer Design Fritz Bayer GmbH & Co. KG applied for registration of goods in Class 28 among others “ dolls, dolls beds, dolls houses, dolls clothing” for the following mark

In 2009, Dimian AG applied for invalidity based on the grounds of Article53(1)(c) read in conjunction with Article8(4), and Article 8 (1) b) and 8 (2) c) CTMR invoking mon-registered word mark Bambolina used in the course of trade in the Czech Republic, Denmark, Germany, Estonia, Greece, Spain, France, Ireland, Italy, Latvia, Hungary, the Netherlands, Austria, Poland, Slovenia, Slovakia, Finland, Sweden and the United Kingdom, for ‘Dolls and accessories for dolls such as doll prams and doll buggies’ in Class 28, claimimg it is well known in the above countries within the meaning of Article6bisof the Paris Convention.

The Cancellation Division and Board of Appeal rejected the application essentially because there was no sufficient proof of use in the course of trade of more than local significance. It must be reminded that use the course of trade must be submitted not only until the date of application for registration of the CTM at issue, but also during the subsequent period up to the date on which an application for a declaration of invalidity was filed.

Whilst an affidavit, a supply contract and invoices had been produced for the period from the launch of the earlier mark in 2004 until the application for registration of the mark at issue on 29 October 2007, the evidence relating to the period from 29 October 2007 until 9 July 2009, on which date the application for a declaration of invalidity was submitted, was much more limited. The fact that the evidence in relation to that period was limited could not be offset by the evidence relating to the period from 2004 until 2007, because the use of the earlier mark between 2004 and 2007 was in itself quite limited.

Further, probabilities or suppositions are not sufficient: sole catalogues or loose pages from few toys catalogues (from Germany, Spain and Italy) dated 2007 until 9 July 2009 did not constitute independent evidence and make it possible to determine whether it had in fact been distributed, where, and in what quantities. Those do not prove that any sales were made. Thus, a substantial part of the evidence was found to be flawed by legitimate doubts as to whether loose, unnumbered and undated pages featuring the products actually corresponded to the particular cover page of the catalogue they followed. Finally, no evidence was adduced for the period after January 2009.

The General Court dismissed the appeal and upheld decisions of the OHIM.