Saint-Gobain Pam SA v European Union Intellectual Property Office (T-364/05)

Judgment of 22 Mar 2007

law://eu/cjeu/2005/t-364-05/para_37@2026-11-13

37It must be observed in this connection that the request for proof of genuine use of the earlier mark has the effect of shifting the burden of proof to the opponent to demonstrate genuine use (or the existence of proper reasons for non-use) upon pain of having his opposition dismissed (MUNDICOR, cited in paragraph 32 above, paragraph 38, FLEXI AIR, cited in paragraph 34 above, paragraph 24, and Salvita, cited in paragraph 34 above, paragraph 77). Genuine use of the earlier mark is therefore a matter which, once raised by the applicant for the trade mark, must be settled before a decision is given on the opposition proper (FLEXI AIR, cited in paragraph 34 above, paragraph 26). The request for proof of genuine use of the earlier mark therefore adds to the opposition procedure a specific and preliminary question and in that sense changes the content thereof.

Saint-Gobain Pam SA v European Union Intellectual Property Office (T-364/05)

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