Gemeenschapsbeeldmerk "GhanaFresh" nietig verklaard wegens depot te kwader trouw

BHIM (Nietigheidsafdeling), no. 8723 C, 31 oktober 2014, Food Processors v Sanchez.

Merkenrecht. Het Gemeenschapsbeeldmerk “GhanaFresh” (zie linksonder) wordt nietig verklaard wegens een depot te kwader trouw (artikel 52(1)(b) GMeV).

31. However, the similarities between the marks are profound. The marks are to all intents and purposes identical. A coincidence in all the features of the marks is of course so highly improbable as to be practically inconceivable as a quirk of chance. But improbability is placed upon improbability when an enlargement of the image of the contested mark reveals the presence of further coincidences which appear to have been ineptly airbrushed out, namely, the words 'premium quality' and 'palmnut cream concentrate' (see paragraph 14 above). This is as close as one could expect to get to a 'smoking gun' in a bad faith case.

34. In any event, the evidence is overwhelming that when the contested mark was filed on 13/03/2003, the application was made dishonestly and with full knowledge of the applicant's trading activities in the E.U. under the contested mark. The Cancellation Division has no serious doubt that the contested mark was a deliberate copy of the applicant's mark. This amounts to a classic bad faith situation. Moreover, the evidence shows that the contested mark was almost certainly doctored in order to disguise the fact that it was a replica of another trader's mark.

Lees de beslissing hier.