Top Takeaways:

• EUIPO ruled that Imiracle failed to prove “Elfbar Crystal” was genuinely used in Slovakia.
• Claims of 12,385 unit sales and four invoices were deemed insufficient for sustained commercial use.
• Shenzhen SKE’s “Crystal” trademark application in Slovakia can now proceed.

European trademark officials have rejected an attempt by the maker of Elfbar disposable vapes to prevent rival Shenzhen SKE Technology Co. from registering the “Crystal” trademark in Slovakia, determining that Elfbar’s owner did not demonstrate genuine commercial use of its brand in the country.

According to a decision from the Opposition Division of the European Union Intellectual Property Office (EUIPO), Hong Kong-based iMiracle (HK) Limited and iMiracle (Shenzhen) Technology Co. Ltd. failed to demonstrate sufficient use of the unregistered mark “Elfbar Crystal” in Slovakia to counter a 2023 trademark application filed by Shenzhen SKE Technology Co. The application covers tobacco products and electronic cigarettes.

Imiracle initially opposed the application based on alleged unregistered rights in “Elfbar Crystal” claimed to exist across Europe. However, in July 2024, the company limited its opposition only to Slovakia.

To support its claim, Imiracle submitted what it described as sales records showing that 12,385 units of “Elfbar Crystal 2500” were sold in Slovakia in 2021, along with four invoices issued to two Slovak distributors. However, the EUIPO found that the evidence reflected only short-term supply activity, not sustained or economically significant commercial use.

The office also found a major inconsistency in the evidence. Packaging materials submitted by Imiracle were written in Ukrainian using Cyrillic script, which the EUIPO said raised doubts that the products had actually been sold in the Slovak market. In its written decision, the agency stated that the packaging language indicated the goods “were not distributed in the relevant territory.”

Under EU trademark rules, an opposition based on an unregistered sign must demonstrate that the mark has been used in commerce and holds more than local significance in the relevant territory. The EUIPO concluded that Imiracle failed to meet that legal standard.

As a result, the Opposition Division fully rejected Imiracle’s opposition, allowing Shenzhen SKE’s “Crystal” trademark to move forward with registration in Slovakia unless an appeal is filed.