[09.08.16 09:08] Mark Schweizer
von meinem Post auf Class 46, dem Blog von MARQUES:
The decision shows once again that proving genuine use in commerce is not an easy undertaking. It also seems overly formalistic. What's the point of the deliveries to the Swiss subsidiary, if not to put the goods on the Swiss market? In administrative proceedings, the court theoretically has to gather the evidence by itself (it does not do so in opposition proceedings). ELUAGE is clearly in use in commerce in Switzerland, as even a quick search on the internet confirms. In the March 2012 issue of the consumer magazine SALDO (in the relevant time period), the ELUAGE eye cream was tested. How would SALDO have acquired the cream, if not from a Swiss re-seller? Together with the sales to the Swiss subsidiary, this makes it more than likely that the mark was genuinely used in commerce in Switzerland. The result of the overly strict practice is that Swiss consumers will be faced with the marks ELUAGE and YALUAGE used for similar goods, which I do believe causes confusion.