72It should be added for the sake of completeness that, although the General Court stated in the context of the case which gave rise to the judgment in Pollo Tropical CHICKEN ON THE GRILL, paragraph 70 above (paragraphs 61 and 62), that the applicant for a declaration of invalidity in respect of a Community trade mark had not adduced evidence to support the presumption — on which it based its argument that the proprietor of the mark had acted in bad faith — that the proprietor could not have been unaware of the existence of earlier marks, it is by contrast common ground in the present case that, at the time when the mark at issue was filed, the former proprietor was already aware of the existence of the intervener’s earlier SIMCA marks and their earlier use in the 1970s. Accordingly, the significance of the proposal to surrender the Community trade mark in return for compensation is different from that of the proposal made in the case which gave rise to the judgment in Pollo Tropical CHICKEN ON THE GRILL, paragraph 70 above, in particular owing to the fact that, as soon as he filed the application for registration, the former proprietor could expect — not altogether unrealistically — to receive an offer of financial compensation from the intervener.
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