Genuine use of a trademark exists where the trademark is used in accordance with its essential function. This function is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services.
In order to provide proof of use the evidence must consist of indications concerning the place, time, extent and nature of use of a trademark. These requirements for proof of use are cumulative. This means that the opponent is obliged not only to indicate, but also to prove each of these requirements. However, the sufficiency of the indication and proof as to the place, time, extent and nature of use has to be considered in view of the entirety of the evidence submitted.
The nature of a trademark is an important requirement. Often, trademarks are used in different ways, along with other elements and is not always clear what the trademark is. This could endanger the proof of use.
This happened in a case against the logo of Panini (the footballer). Panini had to furnish evidence of this logo for a.o. keychains and watches. The use was not very convincing: only few photos of these products with various forms of the logo were provided. The EUIPO took the view that the logo is merely used as decoration, and thus not as a trademark. So. the revocation action is successful.
So, not only use is important, but consequent use of the trademark. A brand identity guideline could be helpful in this respect, just to make sure that everybody is using the same trademark.
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