Plaintiff: Aldi GmbH & Co. KG
Case no.: R1074/2020-4
Jurisdiction: European Union
Industry: Retail
Decision date: 18 May, 2021
Subject matter: Extent of useProof of use
The cancellation applicant failed to prove use of two of its earlier marks ‘ALDI’ for ‘retailing in all product areas´ which is the broad specification for which it had to prove use. Obviously, it is impossible to prove retail services in all product areas as long as these product areas are not defined; even the reference to a very wide range of products does not make the impossible possible. Furthermore, the fact that amongst these many products alcoholic beverages sporadically appear excludes the proof that the earlier marks would have been used ‘only in relation to part of the goods or services for which the mark is registered’ as required by Article 64(2) EUTMR. Moreover, the cancellation applicant failed to prove the nature and/or the extent of use of the two other earlier marks ‘ALDI’ for ‘wine’ and ‘beers’ during the relevant period. Thus, the cancellation applicant has not proven that the earlier mark had been put to genuine use in the European Union for these goods. The cancellation request shall be rejected pursuant to Article 64, third sentence, EUTMR and Article 19(2), last sentence EUTMDR, also on the basis of these earlier marks.
ALDI
ALDIANO
