Trademark law: SHELBY – prima facie evidence of non-use (Federal Administrative Court)

The requirements for establishing prima facie evidence of non-use of a trademark challenged on the basis of a cancellation request must not be set too strictly.

 “In view of the complexity of proving a negative and the fact that Art. 35 b para. 1 MSchG only requires prima facie evidence of non-use, an applicant for cancellation cannot be expected to provide overly detailed evidence. In particular, it cannot be expected that non-use in any niche market will be substantiated, especially if the trademark has been used by third parties with the consent of the proprietor”.

The sale of around 90 watches in the price segment between CHF 1,500 and CHF 2,500 over a period of two years is sufficient to demonstrate serious use of the trademark. Affixing a trademark to the back of the watch is sufficient proof of use.