JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
28 October 2020 (*)
(EU trade mark – Revocation proceedings – EU word mark FRIGIDAIRE – Genuine use – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001))
In Case T‑583/19,
Electrolux Home Products, Inc., established in Charlotte, North Carolina (United States), represented by P. Brownlow, Solicitor,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
D. Consult, established in Wattignies (France),
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 17 June 2019 (Case R 166/2018‑5), relating to revocation proceedings between D. Consult and Electrolux Home Products,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann (Rapporteur), President, O. Spineanu-Matei and R. Mastroianni, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 23 August 2019,
having regard to the response lodged at the Court Registry on 16 December 2019,
having regard to the request for a hearing lodged by the applicant,
having regard to the measure of organisation of procedure of 28 April 2020 and the response of EUIPO lodged at the Court Registry on 12 May 2020,
having regard to the letters, sent in answer to the question from the Court relating to oral hearings in the context of the current health crisis due to the COVID-19 pandemic, by which the main parties indicated that they did not wish to attend a hearing, and considering that it has obtained sufficient information from the documents in the file, having decided to close the oral part of the procedure,
gives the following
Judgment
Background to the dispute
1 On 13 December 1999, the applicant, Electrolux Home Products, Inc., obtained registration, under the number 000071241, of the EU word mark FRIGIDAIRE from the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended, itself replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2 The goods in respect of which the EU word mark FRIGIDAIRE was registered were in Classes 7 and 11 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description:
– Class 7: ‘Household and commercial clothes washing machines, dishwashing machines; household food waste disposers and trash compactors; refrigeration compressors; electric can openers, blenders, food mixers, food processors, coffee grinders, meat grinders, electric knives, knife sharpeners, meat slicers, ice crushers, juice extractors, pasta making machines in Class 7’;
– Class 11: ‘Household and commercial refrigerators, freezers and ice makers; household electric and gas cooking appliances, namely, ranges, ovens, stoves and cooktops; microwave ovens, ranges hoods, room air conditioners, humidifiers and dehumidifiers, water heaters, water coolers, small electric appliances, including coffee makers, espresso machines, instant hot water dispensers, toasters, toaster ovens, fry pans, air purifiers, ice cream freezers, hair dryers, clothes drying machines in Class 11’.
3 On 13 October 2015, D. Consult submitted an application for revocation of the EU word mark FRIGIDAIRE on the basis of Article 51(1)(a) and (b) of Regulation No 207/2009 for all of the goods referred to in paragraph 2 above, on the grounds, first, that that mark had not been put to genuine use and, second, that that mark had become the common name in trade for the goods in respect of which it had been registered.
4 On 23 November 2017, the Cancellation Division partially upheld the application for revocation, on the ground that the contested mark had not been put to genuine use during the period from 13 October 2010 to 12 October 2015 for the following goods:
– Class 7: ‘Household and commercial clothes washing machines, dishwashing machines; household food waste disposers and trash compactors; refrigeration compressors; electric can openers, coffee grinders, meat grinders, electric knives, knife sharpeners, meat slicers, ice crushers, juice extractors, pasta making machines in Class 7’;
– Class 11: ‘Commercial refrigerators and freezers; Household and commercial ice makers; household electric and gas cooking appliances, namely ranges, stoves and cooktops; ranges hoods, room air conditioners, humidifiers and dehumidifiers, water heaters, water coolers, small electric appliances with the exception of toasters, kettles, irons’.
5 For the rest, the Cancellation Division rejected the application for revocation and, accordingly, maintained the validity of the registration of the contested mark for the following goods:
– Class 7: ‘Blenders, food mixers, food processors in Class 7’;
– Class 11: ‘Household refrigerators and freezers; household electric and gas cooking appliances, namely, ovens; microwave ovens; small electric appliances, namely, toasters, kettles, irons in Class 11’.
6 On 23 January 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Cancellation Division to the extent that it had revoked the applicant’s rights to the contested mark for the goods referred to in paragraph 4 above. In its observations in response of 24 May 2018, D. Consult requested annulment of that decision, in so far as it rejected the application for revocation in respect of the goods referred to in paragraph 5 above.
7 By decision of 17 June 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO partially upheld the applicant’s appeal. It annulled the decision of the Cancellation Division in so far as it had revoked the applicant’s rights in respect of the contested mark for ‘coffee grinders, meat grinders, electric knives, meat slicers, ice crushers, juice extractors, pasta making machines’ in Class 7 on the ground that genuine use of that mark had been established in respect of those goods. Consequently, it rejected the application for revocation of that mark in so far as it covered those goods and dismissed the applicant’s appeal as to the remainder as well as the request for annulment submitted by D. Consult.
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision;
– annul the decision of the Cancellation Division of 23 November 2017;
– maintain the registration of the contested mark for all the goods for which it is registered;
– order EUIPO to pay the costs.
9 EUIPO contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
10 In support of the action, the applicant raises a single plea in law, alleging an infringement of Article 58(1) of Regulation 2017/1001. By that plea, it challenges the Board of Appeal’s finding that the contested mark has not been put to genuine use for some of the goods for which it had been registered.
11 It must be noted at the outset that the applicant and EUIPO refer, in their written pleadings, to the provisions of Regulation 2017/1001. However, in view of the date on which the application for revocation in question was filed, namely, in the present case, 13 October 2015, which is decisive for the purposes of identifying the substantive law applicable, the present dispute is governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 6 June 2019, Deichmann v EUIPO, C‑223/18 P, EU:C:2019:471, paragraph 2, and of 3 July 2019, Viridis Pharmaceutical v EUIPO, C‑668/17 P, EU:C:2019:557, paragraph 3). Since Articles 18 and 58 of Regulation 2017/1001 correspond to Articles 15 and 51 of Regulation No 207/2009, the parties’ references to the former articles must be understood as referring to the latter articles (judgment of 3 July 2019, Viridis Pharmaceutical v EUIPO, C‑668/17 P, EU:C:2019:557, paragraph 25).
12 Under Article 51(1)(a) of Regulation No 207/2009 (now Article 58(1)(a) of Regulation 2017/1001), the rights of the proprietor of an EU trade mark are to be declared to be revoked, on application to EUIPO or on the basis of a counterclaim in infringement proceedings, if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
13 According to Article 51(2) of Regulation No 207/2009 (now Article 58(2) of Regulation 2017/1001), where the grounds for revocation of rights exist in respect of only some of the goods or services for which the EU trade mark is registered, the rights of the proprietor are to be declared to be revoked in respect of those goods or services only.
14 According to settled case-law, there is genuine use of a trade mark, within the meaning of Article 51(1)(a) of Regulation No 207/2009, where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (judgment of 3 July 2019, Viridis Pharmaceutical v EUIPO, C‑668/17 P, EU:C:2019:557, paragraph 38, see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43). In addition, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see judgment of 4 April 2019, Hesse and Wedl & Hofmann v EUIPO (TESTA ROSSA), T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 29 and the case-law cited).
15 When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark used in trade is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
16 Genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT), T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28).
17 In that regard, pursuant to Rule 22 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (now Article 10(3) and (4) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1)), which is applicable to revocation proceedings pursuant to Rule 40(5) of Regulation No 2868/95 (now Article 19(1) of Delegated Regulation 2018/625), the proof of use of a mark must concern the place, time, extent and nature of use of the mark and is, in principle, to be confined to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in Article 78(1)(f) of Regulation No 207/2009.
18 In the present case, the Board of Appeal observed that, since the application for revocation was lodged by D. Consult on 13 October 2015, the period of five years to be taken into consideration ran from 13 October 2010 to 12 October 2015, a fact which is not disputed by the parties.
19 Moreover, it is apparent from a combined reading of the contested decision and of the decision of the Cancellation Division that the Board of Appeal found that the applicant had established genuine use of the contested mark and, accordingly, maintained the validity of the registration of that mark in respect of the following goods:
– Class 7: ‘Blenders, food mixers, food processors; coffee grinders, meat grinders, electric knives, meat slicers, ice crushers, juice extractors, pasta making machines in Class 7’;
– Class 11: ‘Household refrigerators and freezers; household electric and gas cooking appliances, namely, ovens; microwave ovens; small electric appliances, namely, toasters, kettles, irons in Class 11’.
20 However, the Board of Appeal found that the applicant had not established genuine use of the contested mark for the other goods in respect of which that mark had been registered.
21 The applicant disputes the findings of the Board of Appeal concerning the lack of proof of genuine use of the contested mark as regards, first, ‘household and commercial clothes washing machines’ and ‘dishwashing machines’ in Class 7 and, second, ‘ranges’ and ‘clothes drying machines’ in Class 11 (‘the goods in question’).
22 As regards the goods in question, the Board of Appeal observed that the applicant relied before it on, inter alia, the following evidence, such as described in the contested decision, in order to establish genuine use of the contested mark for ‘household and commercial clothes washing machines, household electric and gas cooking appliances, namely, ranges, stoves and cooktops, ranges hoods and dishwashing machines’:
– a statement from the Director of Global Licensing Operations at Electrolux North America, Inc., (‘Electrolux North America’) to which, inter alia, the following documents were annexed:
– invoices dated between April 2014 and June 2015 evidencing sales of goods bearing the mark FRIGIDAIRE to the US Department of Defense, submitted as proof of use of those goods in Belgium;
– invoices dated between January 2015 and October 2015 evidencing sales of goods bearing the mark FRIGIDAIRE to the US Department of Defense in Belgium;
– a statement from the International Business Development Manager at Electrolux North America and Electrolux Home Products, Inc., (‘Electrolux Home Products’) to which, inter alia, the following documents were annexed:
– a non-exclusive distribution agreement between Electrolux and East West International/Export 220V, dated 1 January 2014 and granting that latter company the right to sell goods bearing the mark FRIGIDAIRE in Europe, the Middle East, Africa and India;
– invoices dated between June 2014 and December 2014 evidencing sales of goods bearing the mark FRIGIDAIRE, through East West International/Export 220V, to the US State Department’s military base in Antwerp (Belgium);
– invoices dated between November 2011 and September 2015 evidencing sales of goods bearing the mark FRIGIDAIRE, through the distributor Export 220V, to the US State Department’s military base in Neustadt (Germany);
– invoices dated between September 2010 and June 2014 evidencing sales of goods bearing the mark FRIGIDAIRE to Johann Fouquet GmbH in Neustadt (Germany);
– non-exclusive licences to sell goods bearing the mark FRIGIDAIRE between Electrolux Home Products France SAS and Darty et Fils SAS, dated between 20 February 2014 and 19 February 2015;
– a supply agreement between, inter alia, the applicant and the company Euronics, in which the applicant agreed to periodically supply Euronics with its goods, for the period from 1 April 2013 to 31 March 2014;
– a commercial agreement entered into between, inter alia, the applicant and Euronics, for the period from 1 April 2015 to 31 March 2017.
Failure to take into consideration evidence concerning American military bases located in Member States
23 The applicant submits that, contrary to the Board of Appeal’s findings, the statements referred to in paragraph 22 above and the annexes thereto were sufficient to establish use of the contested mark in the European Union as well as its intention to create a commercial outlet for the goods in question within the European Union. In that regard, it criticises the Board of Appeal on the ground that it did not take into account the case-law arising from three national legal decisions as well as a decision of a Board of Appeal of EUIPO.
24 It should be observed that, in his statement, the Director of Global Licensing Operations at Electrolux North America describes the use of the contested mark in the United Kingdom and in France as well as other sales carried out in Europe, the use of that mark on social media and the usage policy of that mark. In particular, he indicated that, during 2014 and 2015, the applicant had sold the goods to the US Department of Defense and the US State Department and to that country’s embassies in Europe under the mark in question. He refers in this regard to the invoices described in paragraph 22 above.
25 In addition, in his statement, the International Business Development Manager at Electrolux North America and Electrolux Home Products described the terms of sale of the applicant’s goods in Belgium and in Germany, explaining that there was a non-exclusive distribution agreement with East West International/Export 220V between 1 January 2014 and 31 December 2015, and referring to that agreement and to the invoices mentioned in paragraph 22 above.
26 In the contested decision, the Board of Appeal observed that the applicant had submitted proof establishing the sale, by a non-exclusive distributor, of 1 516 washing machines, 765 clothes dryers, 216 dishwashers, and 610 ranges, together with refrigerators and freezers, to the US Department of Defense and the US Department of State for a military base located in Germany between November 2011 and September 2015 and for a military base located in Belgium between June 2014 and December 2014. The applicant does not dispute those facts.
27 The Board of Appeal found that those sales figures were not negligible but that they were likely to reflect the needs of the soldiers living in those military bases and not to indicate the applicant’s intention to create a commercial outlet in the European Union for the goods in question.
28 In the first place, the applicant relies on a judgment of the High Court of Justice (England & Wales), Chancery Division, of 18 March 2002, in which it was held that sales of baby food to a US air force base in the United Kingdom constituted genuine use of the mark in question for those goods, despite the fact that that mark was not used outside the military base in question. The applicant also relies on a judgment of the Bundesgerichtshof (Federal Court of Justice, Germany) of 5 June 1985 and a judgment of the Bundespatentgericht (Federal Patents Court, Germany) of 1 October 1980, in which it was allegedly held that sales of goods in Belgian and American military bases, respectively, disrupted competition, in the sense that the consumers of the goods concerned could have chosen to purchase similar goods from other distributors outside the military bases. Therefore, the sales carried out in those military bases competed with the sales which could have been carried out locally, with the result that the former constituted use of the marks in question in the territory in which the military bases were located.
29 It must be stated that those national decisions are not such as to call into question the findings of the contested decision. It suffices to recall that the EU trade mark regime is autonomous and that the legality of decisions of the Boards of Appeal is assessed solely on the basis of Regulation No 207/2009, with the result that EUIPO, or, on appeal, the General Court, is not required to reach the same conclusions as those arrived at by national authorities or courts in similar circumstances (see, to that effect, judgment of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 37 and the case-law cited).
30 In the second place, the applicant relies on the decision of the Second Board of Appeal of EUIPO of 9 October 2013 in Case R 686/2013‑2, in which the Board of Appeal held that, first, American military bases located in the territory of the European Union are part of EU territory, second, the fact that consumers who purchase goods in those bases are American citizens is irrelevant, since the nationality of consumers is immaterial to the finding of genuine use of a mark, and, third, the proprietor of a mark had to demonstrate that he or she intended to create or maintain a market share within the European Union for the goods covered by the mark in question. The applicant maintains that, in that case, the proprietor of the mark in question had not demonstrated that it pursued the aforementioned objective and that, in the present case, the applicant has submitted evidence demonstrating that it pursued that objective.
31 It must be recalled that EUIPO is required to decide on the basis of the circumstances of each individual case and that it is not bound by previous decisions taken in other cases. The legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation No 207/2009 and not on the basis of any previous decision-making practice of those boards. Furthermore, in its review of legality, the Court is not bound by the decision-making practice of EUIPO (see judgment of 15 December 2015, ARTHUR & ASTON, T‑83/14, EU:T:2015:974, paragraph 39 and the case-law cited).
32 The national decisions and the decision of a Board of Appeal of EUIPO relied on by the applicant are therefore not capable of calling into question the lawfulness of the Board of Appeal’s assessments.
33 Moreover, it is apparent from the statements in question, as well as from the invoices annexed thereto, that (i) the goods were ordered by US Government Departments, (ii) the distributor from whom the goods were ordered is established in the United States and (iii), apart from the goods referred to in an invoice consigned from Poland, those goods had been consigned from Mexico, the United States or Turkey.
34 Since the concept of genuine use in the European Union necessitates the use of the mark in the European Union, use of that mark in third States cannot be taken into account for the purposes of establishing genuine use of that mark (see, to that effect, judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 38).
35 As regards the invoice concerning goods consigned from Poland, the Board of Appeal observed – and the applicant does not dispute this – that the goods referred to in that invoice had passed only in transit through that State, with the result that that invoice did not establish use of the contested mark in the European Union.
36 Moreover, the Director of Global Licensing Operations at Electrolux North America confirmed that the goods referred to in the invoices annexed to his statement had been specially modified by adapting European plugs and providing voltage and hertz levels adapted for use in Europe.
37 Therefore, the Board of Appeal was correct in finding that sales of the goods in question to the US Department of Defense and the US State Department for military bases located in Belgium and in Germany were not capable of establishing the applicant’s intention to create a commercial outlet in the European Union for the goods in question.
38 Consequently, the applicant’s head of complaint must be rejected.
Failure to take into consideration the sales of goods to Johann Fouquet and the contracts entered into with Darty et Fils and Euronics
39 The applicant criticises the Board of Appeal on the ground that it failed to have regard to the case-law on the conditions of the territorial extent of the use of a mark by not finding that the sales of goods to Johann Fouquet and the contracts entered into with Darty et Fils and Euronics constituted use of a sufficient territorial intensity and extent to establish genuine use of the contested mark in the European Union.
40 As the applicant rightly submits, it follows from the case-law that the territorial borders of the Member States should be disregarded in the assessment of genuine use in the European Union within the meaning of Article 15(1) of Regulation No 207/2009 (see, to that effect, judgments of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 44, and of 30 January 2015, Now Wireless v OHIM – Starbucks (HK) (now), T‑278/13, not published, EU:T:2015:57, paragraph 46).
41 Moreover, since the assessment of whether the use of the trade mark in the European Union is genuine is carried out by reference to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark serves to create or maintain market shares for the goods or services for which the mark was registered, it is impossible to determine a priori, and in the abstract, what territorial scope should be chosen in order to determine whether the use of the mark is genuine or not. A de minimis rule, which would not allow the Court to appraise all the circumstances of the dispute before it, cannot therefore be laid down (judgment of 30 January 2015, now, T‑278/13, not published, EU:T:2015:57, paragraph 47; see also, by analogy, judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 55).
42 In the first place, as regards the invoices addressed to Johann Fouquet, referred to in paragraph 22 above, the Board of Appeal noted – and this is not disputed by the applicant – that those invoices evidenced the sale to that company of 138 washing machines and 42 dryers and that that company was established in Germany. The Board of Appeal found that the volume of those sales was rather low and noted – a fact which is not disputed by the applicant – that no further proof of sales in other German cities had been provided. Since it further observed that one of the military bases to which the goods had been sold was also located in Germany, it held that use of the contested mark was insufficient, in terms of territorial extent and intensity, to find that the applicant had maintained or created a share in the market for those goods. It added that, since no sale of goods bearing that mark had been established outside the American military base located in Antwerp – which the applicant does not dispute – the same conclusion could be drawn a fortiori as regards the territory of Belgium.
43 First, it should be noted that the applicant does not dispute the sales figures to Johann Fouquet, determined by the Board of Appeal. It also does not dispute the lack of proof of sales in other cities in Germany nor, as regards Belgium, outside the American military base in Antwerp. Moreover, the applicant submits no evidence to establish that the sales to that company were sufficient to constitute a use which could be classified as genuine use of the contested mark in the European Union as regards the goods in question.
44 Second, it is apparent from paragraphs 110 and 111 of the contested decision that the Board of Appeal deduced from its factual findings concerning the lack of sales of the goods in question, as regards Germany, outside the American base in question and the city in which Johann Fouquet is established and, as regards Belgium, outside the American base in Antwerp, that the applicant had not established its intention to market the goods in question in the European Union, in contrast to ‘refrigerators and freezers’ in Class 11.
45 Thus, the Board of Appeal relied on the factual findings in paragraph 110 of the contested decision in order to assess the applicant’s intention to create or maintain market shares for the goods in question, within the meaning of the case-law referred to in paragraph 14 above. It cannot be concluded that that assessment arises from an intention, going against the case-law recalled in paragraph 41 above, to determine a priori and in the abstract, what territorial scope should be chosen in order to determine whether the use of the contested mark in the European Union is genuine or not or to lay down a de minimis rule for that purpose.
46 In the second place, as regards the agreements entered into with Darty et Fils referred to in paragraph 22 above, these contain no reference to the contested mark. In addition, as EUIPO correctly notes, evidence that the goods bearing that mark were marketed by that company, namely, in the present case, the statement of the Director of Global Licensing Operations at Electrolux North America as well as the screenshots of the website of Darty et Fils, concern only refrigerators and freezers and not the goods in question.
47 As regards the contracts entered into with Euronics, only the contract relating to the period between 1 April 2015 and 31 March 2017 mentions the contested mark. In addition, as EUIPO correctly notes, evidence that the goods bearing that mark were marketed by that company, namely, the statement of the Director of Global Licensing Operations at Electrolux North America as well as the screenshots of the website of Euronics, concern only refrigerators and freezers and not the goods in question.
48 Consequently, the contracts and agreements referred to in paragraph 22 above were irrelevant for the purposes of establishing genuine use of the contested mark in the European Union in respect of the goods in question.
49 The applicant’s head of complaint must therefore be rejected.
Failure to take into consideration use of the contested mark on social media
50 The applicant claims that the Board of Appeal erred in law by not taking into consideration proof of use of the contested mark on social media in conjunction with the other evidence establishing, according to the applicant, genuine use of that mark in the European Union, that is to say, the evidence referred to in paragraph 22 above.
51 The Board of Appeal found that the visibility of the contested mark on certain social media did not establish genuine use of that mark in the European Union. In particular, it found that there was no objective proof that the applicant’s pages on social media concerning the goods in question had been visited by the public residing in the territory of the European Union. It observed, on the contrary, that, according to the printouts of the applicant’s social media pages, those pages appear to be addressed to the public in the United Sates, given that the telephone number indicated began with the international dialling code of that country.
52 It must be held that, contrary to the applicant’s assertions, the Board of Appeal took into account the use of the contested mark on social media provided by the applicant in order to assess the genuine character of that use in the European Union.
53 Moreover, the applicant puts forward no argument to challenge the merits of the Board of Appeal’s findings in this respect, with the result that that head of complaint must be rejected.
54 It follows from the foregoing that the applicant has not established any error of assessment by the Board of Appeal in the examination of whether the contested mark was put to genuine use in the European Union for the goods in question.
55 The action must therefore be dismissed in its entirety, without there being any need to adjudicate on the admissibility of the applicant’s heads of claim seeking annulment of the Cancellation Division’s decision of 23 November 2017 and maintenance of the registration of the contested mark for all of the goods in respect of which it was registered.
Costs
56 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Electrolux Home Products, Inc., to pay the costs.
Spielmann | Spineanu-Matei | Mastroianni |
Delivered in open court in Luxembourg on 28 October 2020
E. Coulon | | M. van der Woude |