The last chance of Grigorius Holdings has burned - the famous energy drink "BURN" succeeds in claiming bad faith
On April 15 2020, the US company Energy Beverages LLC (Plaintiff) brought an action against SIA “Grigorius Holdings” (Defendant) regarding the registration No. M 73 657 of the word mark “BURN”. On 4 December 2019, the Board of Appeal examined the opposition case and upheld the opposition only partially and acknowledged the mark “BURN” No. M 73 657 as invalidated for all goods in class 25, for all services in classes 38 and 41 and for a part of the goods in class 9. Consequently, the action was brought against the remaining goods included in Defendant’s mark.
The owner of the contested mark – Grigorius Holdings, SIA (Defendant) – is related to the famous trademark pirate Michael Gleissner, therefore the action was based on arguing bad faith of the applicant. The US company Energy Beverages LLC was represented in the Board of Appeal and in the court by trademark attorneys, lawyers – Gatis Meržvinskis and Kristīne Ostrovska.
The court, after hearing the arguments presented by Plaintiff’s representative, upheld the action in full due to the following reasons:
– Plaintiff owns a family of earlier Latvian national and European Union trademarks “BURN”, which have good reputation for energy drinks in the European Union.
– In the court’s view, a reference to a person’s abusive action is a serious allegation which the person expressing it must prove.
– The Court concludes that the all evidence, including the one which was not submitted before the Board of Appeal by Plaintiff, confirm the fact that Defendant applied for the contested mark without any intention of using it in commerce for all the goods and services applied for.
– The Court recognizes that Defendant’s attempts to register an identical trademark are not accidental, but is a deliberate and repeated act with the specific purpose – appropriating trademarks owned by third parties and then making profit from these trademark registrations or creating obstacles to trademark proprietors.
– Section 96 (5) of the Latvian Civil Procedure Law stipulates that a party does not have to prove facts which had not been contested by the opposite party. The Court concludes that Defendant’s disregard for the proceedings indicates that Plaintiff’s arguments are correct.
Similar findings were also admitted by the court in previous rulings concerning Grigorius Holdings’ marks Jaxid and Parasite Eve.