23 June 2022Trademarks

EU court rejects trade union’s ‘Waterford’ revocation bid

British and Irish trade union  Unite the Union has failed to convince the EU General Court to annul a European Union Intellectual Property Office (EUIPO) decision not to revoke a trademark.

In a ruling handed down yesterday, June 22, the General Court dismissed Unite’s attempt to have ‘Waterford’—a trademark owned by WWRD Ireland IPCO—revoked on the ground that the mark was liable to mislead the public as to the geographical origin of those goods.

In June 2000, WWRD Ireland registered the ‘Waterford’ trademark covering classes 3, 8, 11, 21, 24, and 34.

Unite originally opposed the trademark in respect of ‘articles of glassware, earthenware, chinaware and porcelain’ in 2013. The EUIPO’s Cancellation Division rejected the application in late 2014, finding that evidence of misleading use had not been provided.

The 2014 decision became final after Unite didn’t file a notice of appeal. But, in May 2017, Unite filed a new application to revoke the trademark for the same goods. This time, in support of its application, Unite provided an opinion poll, called "Waterford Study", dated March 2015.

Originally, the EUIPO said the application was inadmissible as an application relating to the same subject matter and cause of action, involving the same parties, had already been adjudicated. However, in May 2018, the EUIPO sent the parties a communication, stating that it considered the application admissible.

In October 2019, the Cancellation Division rejected the application. Subsequently, the EUIPO’s Board of Appeal dismissed the appeal.

Again, Unite appealed against the decision, asking the General Court to annul the contested decision and revoke the trademark.

According to Unite, the Board of Appeal erred in finding that an applicant for revocation had to show actual deceit or a sufficiently serious risk that the consumer would be deceived.

The General Court rejected this argument, stating that case law has held that this ground of revocation “presupposes the existence of actual deceit or a sufficiently serious risk that the consumer will be deceived”.

Unite also argued that the Board of Appeal made an “unfounded” distinction between a survey an opinion poll and that survey and opinion polls have the same probative value.

“It argues that there are no obligatory methods for conducting a survey or an opinion poll and that the fact that the Waterford Study was conducted via ‘online access panels’ is not a reason to reject it,” said the General Court.

Unite contended that although the "Waterford Study" was conducted on the basis of a panel of people who complete surveys in exchange for a reward doesn’t mean the responses were influenced.

In rejecting the arguments, the General Court noted: “It must be stated that, contrary to what the applicant claims, the Board of Appeal did not find that the fact that the Waterford Study had been conducted on the basis of a panel of people who completed surveys in exchange for reward meant that their responses had been influenced.

“The Board of Appeal found that, on account of that fact, the participants in the poll had selected themselves and had not been chosen as constituting a representative sample of the population.”

Additionally, the court found that the Board of Appeal didn’t reject the "Waterford Study" on the ground that it was an opinion poll but relied on the fact that it wasn’t “aware of the methodology which had been used in that poll and called into question the representativeness of the panel of people who had taken part in it”.

Concluding, the court said: “It follows that the applicant has not put forward any argument which is capable of calling into question the Board of Appeal’s assessment that it did not have sufficient information to enable it to satisfy itself as to the representativeness of the panel used in the Waterford Study and therefore as to the reliability of that poll.”

The General Court dismissed the appeal. ordering Unite to pay its own costs and those incurred by WWRD Ireland.

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