Case T‑287/13

Husky CZ s.r.o.

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark — Revocation proceedings — Community word mark HUSKY — Genuine use of the trade mark — Partial revocation — Extension of the time-limit — Rule 71(2) of Regulation (EC) No 2868/95 — Translation into the language of the proceedings)

Summary — Judgment of the General Court (First Chamber), 13 February 2015

1.      EU law — Interpretation — Texts in several languages — Differences between the various language versions — Account to be taken of the overall scheme and purpose of the legislation in question

2.      Community trade mark — Procedural provisions — Time-limits — Extension of a time-limit fixed by OHIM — Conditions

(Commission Regulation No 2868/95, Art. 1, Rule 71(1) and (2))

3.      Community trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Translation of the documents produced

(Council Regulation No 207/2009, Art. 51(1)(a); Commission Regulation No 2868/95, Art. 1, Rules 22(2) to (4) and (6), and 40(5))

4.      Community trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Criteria for assessment

(Commission Regulation No 2868/95, Art. 1, Rules 22(3), and 40(5))

1.      The need for uniform application and, accordingly, for uniform interpretation of a European Union measure makes it impossible to consider one version of the text in isolation, but requires, on the contrary, that it be interpreted on the basis of both the real intention of its author and the aim the latter seeks to achieve, in the light, in particular, of the versions existing in all the other official languages.

(see para. 37)

2.      On a proper interpretation of Rule 71(2) of Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark, when a party, in inter partes proceedings, requests an extension of time, the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may, but is not required to, seek the consent of the other party. That provision has to be read in conjunction with Rule 71(1), from which it follows that OHIM, in particular when it decides not to seek the other party’s consent, must take account of the circumstances surrounding the request for an extension of time.

(see para. 46)

3.      Rule 22(6) of the Regulation No 2868/95 implementing Regulation No 40/94 on the Community trade mark supplements and further elaborates on the provisions of Rule 22(2) to (4) of the same regulation, which apply mutatis mutandis to revocation proceedings pursuant to Rule 40(5) of that regulation. Accordingly, Rule 22(6) of the Implementing Regulation is applicable to revocation proceedings based on Article 51(1)(a) of Regulation No 207/2009 on the Community trade mark. It is apparent from Rule 22(6) of Regulation No 2868/95 that OHIM is able to request of the party submitting documents that they be translated where the documents submitted are not in the language of the proceedings.

(see paras 55, 56)

4.      Under Rule 22(3) of Regulation No 2868/95, which applies mutatis mutandis to revocation proceedings in accordance with Rule 40(5) of the regulation, evidence of genuine use of a trade mark must concern, as cumulative requirements, the place, time, extent and nature of the use made of the trade mark.

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 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.

In order to examine whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence of the factors taken into account.

Although Rule 22 of Regulation No 2868/95 refers to indications concerning the place, time, extent and nature of use, and gives examples of acceptable evidence, such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing, that rule does not state that each item of evidence must necessarily give information about all four elements to which proof of genuine use must relate, namely the place, time, nature and extent of use.

Moreover, it cannot be ruled out that an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts.

Proof of genuine use of the mark at issue must be established by taking into consideration all of the evidence submitted to the Board of Appeal of OHIM for assessment.

(see paras 62-67)