Trademark owners, take note! The General Court of the European Union (GC) has recently annulled a decision by the EUIPO Board of Appeal (BoA) concerning the revocation of the figurative mark “Lav”.

This ruling is a significant victory for brand owners, particularly regarding how genuine use is proven in legal proceedings.

Why the General Court disagreed with the EUIPO

While the Board of Appeal (BoA) originally supported the revocation—likely due to a perceived lack of sufficient evidence—the General Court found the BoA’s evaluation fundamentally flawed. The Court identified three critical legal errors:

1. Inappropriate Burden of Proof: The Court ruled that the EUIPO had imposed an “inappropriate or excessive burden of proof” on the trademark owner. It signaled that while use must be “genuine”, the administrative requirements to prove it should not become an impossible hurdle.
2. Failure in Evidence Evaluation: The Court critiqued the BoA’s assessment of evidence (Beweiswürdigung), suggesting that the submitted materials were not viewed in their proper context or were unfairly dismissed.
3. Violation of “Good Administration”: Crucially, the GC cited Article 41 of the Charter of Fundamental Rights (the principle of good administration). This implies the EUIPO failed in its duty to examine the case impartially and fairly.

Practical Takeaways for IP Professionals – The ruling provides a roadmap for defending marks against non-use:

• Audit Your Evidence for “Inappropriateness”: If an EUIPO examiner or the BoA demands an exhaustive level of detail that seems disconnected from commercial reality, use this case to argue against an “excessive burden of proof”.
• The “Global Assessment” Strategy: Do not just present evidence; weave it into a narrative. The Court expects a fair evaluation of the evidence as a whole. Ensure your documentation (invoices, catalogues, etc.) collectively demonstrates a real commercial presence, even if individual pieces might seem minor.
• Invoke the Principle of Good Administration: If you feel your evidence is being dismissed without a reasonable explanation, remind the authorities of their obligations under Art. 41 of the Charter. This is a powerful procedural tool to ensure your “genuine use” evidence is actually considered, not just checked off a list.
• Prepare for Scrutiny on Specific Articles: This case specifically involved Art. 18(1) and Art. 58(1)(a) of Regulation 2017/1001. Ensure your internal compliance teams understand these articles through the lens of this new GC interpretation.

This judgment reinforces that while the duty to prove genuine use remains with the owner, the EUIPO must remain fair and proportionate in its demands.