The Trademark That Outlived the Final Curtain

Division III of the Federal Court of Appeals in Civil and Commercial Matters affirmed the Trademark Office’s decision that had rejected the non-use cancellation action filed against the trademark TIHANY SPECTACULAR, registered in Class 41, owned by RAMSA Showtime LLC. While it was undisputed that the trademark had not been used in Argentina during the five years prior to filing of the action, the Court found that circumstances of force majeure justified an exception to the non-use cancellation.

The Court emphasized that non-use cancellation does not operate mechanically upon the mere lapse of time. Rather, it allows exceptions where the trademark owner can demonstrate objective impediments that rendered the use of the mark impossible or unreasonable.

The ruling focused on two main factors:

• Impact of the COVID-19 pandemic: the court of appeals considered that sanitary restrictions prevented mass events for a substantial period (approximately from March 2020 to early 2022), which the Court deemed a typical case of force majeure.
• Nature of the services involved: the Court understood that the services identified by the mark have specific characteristics, with discontinuous activity cycles and a complex operational structure in logistical and economic terms.

On this basis, the Court concluded that it would be unreasonable to require continuous use of the trademark in Argentina within the ordinary statutory timeframe, in light of the extraordinary obstacles involved and the specific conditions of the activity.

Additionally, the Court held that the trademark retained a degree of “residual reputation” in the market. Although this does not replace the requirement of use, it was considered an additional factor in assessing the case. Accordingly, the Court highlighted the mark’s continued presence in the digital environment, including the availability of content on platforms such as YouTube, as an indication of its ongoing recognition among the public.

Accordingly, the Court upheld the challenged administrative decision rejecting the non-use cancellation action against the TIHANY SPECTACULAR trademark, thereby preserving the registration of the mark.