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January 2019

Beef up your evidence!

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Supermac’s recent successful revocation of McDonald’s EUTM registration No. 62638 for BIG MAC on the grounds of non-use* should be a stark reminder to trade mark owners of the importance of submitting robust evidence of genuine use of their mark, whether defending a non-use revocation action or submitting proof of use of an earlier right.

In support of their EUTM 62638, McDonald’s submitted three affidavits signed by representatives of McDonald’s companies claiming significant sales figures during the relevant period, together with examples of packaging, promotional brochures and menus, prints of advertising posters and website pages bearing the mark BIG MAC, as well as an extract from Wikipedia on the BIG MAC brand. Assessing the probative value of the affidavits in conjunction with the additional evidence of use submitted, the Cancellation Division concluded that McDonald’s’ evidence was insufficient to prove that the mark BIG MAC had been put to genuine use in the EU in respect of the relevant goods and services during the relevant period of time. 

When collating evidence of genuine use for submission before the EUIPO, it is vital to demonstrate the place, time and extent of use of the mark in question. Where a trade mark owner is unable to produce well documented records of their trade mark use or where such records are thin on the ground, eccora’s experienced investigators are well placed to assist. Using our extensive research and investigation processes, we are able to provide robust bundles of evidence, including evidence from independent third party sources, to support claims of genuine use. Equally, should a trade mark owner seek assistance in gathering evidence of non-use of a registered trade mark (in support of a revocation action) or evidence of acquired distinctiveness of a mark, eccora has the extensive skills and resources to facilitate this.

Our full range of services can be found at here. 

* EUIPO Cancellation Division Decision No. 14788C Supermac’s (Holdings) Ltd v McDonald’s International Property Company, Ltd