The Applicant, Cantina Tollo SCA, filed an EU trade mark
application for the mark ALDIANO covering "alcoholic beverages
(except beers)". The application was opposed by ALDI based on
an EU trade mark registration ALDI covering various goods and
services including "alcoholic beverages (except beers)".
ALDI claimed that there was a likelihood of confusion.
Given the ALDI mark had been registered for more than five years
at the relevant time, the Applicant requested ALDI to file evidence
of use. ALDI supplied:-
An Affidavit from an employee
Three advertisements for products
including the wines Espiral Vinho Verde, ROSSO TOSCANO and BONUS
Two copies of draft labels for the
wines BONUS Vino Blanco and Espiral Vinho Verde. The reverse of the
labels contained a reference to ALDI.
Three photographs of bottles and a
box for the wines Espiral Vinho Verde, ROSSO TOSCANO and BONUS Vino
Eleven invoices from suppliers to
The Opposition Division rejected the opposition on the grounds
that the evidence did not show the ALDI mark had been genuinely
used. The Board of Appeal agreed saying there was no evidence to
show that the goods had been sold on the market.
On appeal, ALDI disputed the finding of the Board of Appeal that
the products were not marketed under the ALDI mark but under the
marks ROSSO TOSCANO, Espiral and BONUS and that the use of ALDI was
only as the company name of the retailer. The General Court stated
that it has been held that there is use when a third party affixes
a trade mark which is its company name to the goods it markets. It
rejected the Board of Appeal's argument that there had been no
use of the mark when the company name was affixed to packaging and
said it was not relevant if the mark was small or not affixed to
the front of the packaging.
Taken as a whole, the General Court found that they had
information on the nature of the use of ALDI in relation to the
wines ROSSO TOSCANO and Espiral by means of the Affidavit,
advertisements, labels and photos. (The only evidence of use for
BONUS Vino Blanco was the Affidavit and packaging which did not
show actual marketing – the advertisement was not in the
relevant five year period). They then went on to consider the
extent of use.
The Applicant's employee in his Affidavit had stated that
the mark had been used in relation to three types of wine during
the five year period and had been the subject of advertisements
published in Spanish daily newspapers in 2011 and 2012. The
Affidavit included a table of sales figures for the wine. In line
with their normal practice in relation to evidence from a party to
the proceedings the General Court stated that they would give
evidential value to the information in the Affidavit provided it
was supported by other evidence.
With regard to the advertisements, no details were given of the
names of the newspapers nor the circulation figures. This therefore
did not show the extent of the use of the mark according to the
General Court. It also found that the invoices showed the sale of
the wine to the Applicant and its Spanish distribution companies
but not the marketing by the Opponent itself.
The Opponent claimed that it could not provide till receipts for
the bottles of wine it sold because of the very high number of such
receipts and also data protection issues. This was rejected by the
General Court who said it would not have been difficult for the
Opponent to provide copies of receipts, sales invoices or
The Court therefore agreed with the Board of Appeal that no use
had been provided. The Opposition failed and ALDI were ordered to
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