What kind of evidence of use is sufficient to prevent a trademark from being declared revoked due to lack of use?

In January 2019 EUIPO declared McDonald’s trademark ‘BIG MAC’, registered in 1998, revoked since it found that the evidence of use provided was insufficient.

McDonald’s appealed against the EUIPO Cancellation Division’s decision, and the Board of Appeal partly annulled the decision in respect of, inter alia, services relating to meat and chicken products and meat and chicken sandwiches, food and drink distribution and takeaway food preparation services. However, Supermac’s (Holdings) Ltd from Ireland, the original applicant for revocation of the BIG MAC trademark, appealed the decision of the EUIPO Board of Appeal to the EU General Court, requesting that the decision be amended to order revocation of the BIG MAC trademark registration for products other than meat sandwiches and related services.

On June 5th 2024, the General Court issued its decision ECLI:EU:T:2024:360, partially annulling and altering the EUIPO Board of Appeal’s decision holding that the trademark BIG MAC was revoked for chicken sandwiches and poultry products, even though McDonald’s submitted various marketing materials, menu boards, TV commercials and extracts from social media marketing showing, inter alia, the use of the trademark BIG MAC for chicken burgers in France.

However, the General Court found that the evidence relied on by McDonalds did not show, inter alia, the volume of sales, the length of time the mark had been used, the frequency and extent of use of the mark or the prices of products using the mark. The evidence relied on by McDonald’s was therefore not considered sufficient to show that the use of the trademark BIG MAC for chicken sandwiches and poultry products and related services constituted genuine use of the mark.

The decision is an important reminder to all trademark holders that actual use alone is not enough; evidence of use and its extent, such as sales volumes, may be required and should therefore be saved regularly.