JUDGMENT OF THE GENERAL COURT (Third Chamber)
28 February 2024 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark atomic fund – Earlier EU word mark ATOMICO – Lack of evidence of the reputation of the earlier mark – Article 8(5) of Regulation (EU) 2017/1001 – Remittal of the case to the Opposition Division)
In Case T‑98/23,
Atomico Investment Holdings Ltd, established in Road Town (British Virgin Islands), represented by S. Malynicz, Barrister-at-Law,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by P. Georgieva, D. Gája and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Augusto Gomes Tominaga, residing in Amsterdam (Netherlands),
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, I. Nõmm and G. Steinfatt (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 21 November 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Atomico Investment Holdings Ltd, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 December 2022 (Case R 324/2022-2) (‘the contested decision’).
Background to the dispute
2 On 9 February 2018, Mr Augusto Gomes Tominaga filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3 The mark applied for covered goods and services in Classes 9, 36 and 42 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 corresponding, for each of those classes, to the following description:
– Class 9: ‘Supercomputers; computer software for authentication and authorization of transactions on a peer-to-peer network based on distributed ledger technologies that may be accessed from any computer device; Computer hardware for high speed processing and storage of data using multiple CPU’s; Computer programs and computer software for electronically trading securities; Computer software for authorizing access to databases; Downloadable software for authentication and authorization peer to peer transactions based on distributed ledger technologies; telecommunications and data networking hardware, namely, devices for transporting and aggregating voice, data, and video communications across multiple network infrastructures and communications protocols’;
– Class 36: ‘Financial services directed to management and trade of crypto assets specifically based on peer-to-peer internet network and distributed ledger technology, financial investment services focusing in crypto assets and specifically based on peer-to-peer internet network and distributed ledger technology; financial affairs specifically on crypto assets and particularly based on peer-to peer internet network and distributed ledger technology; monetary affairs focusing in crypto assets and specifically based on peer-to-peer internet network and distributed ledger technology’;
– Class 42: ‘Programming of computer software; software as a service (saas) services featuring software for authentication and authorization of transactions on a peer-to-peer network based on distributed ledger technologies; Data encryption services; Development of computer software for authentication and authorization of peer to peer transactions based on distributed ledger technologies; Development of computer software for decentralized autonomous organizations, network and web technologies’.
4 The application for registration was published in European Union Trade Marks Bulletin No 2020/188 of 1 October 2020.
5 On 23 December 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
6 The opposition was based on the following earlier rights:
– the EU word mark ATOMICO, registered on 4 March 2008 under number 5 446 067, covering, inter alia, goods and services in Classes 35 and 36 and corresponding, for each of those classes, to the following description:
– Class 35: ‘Business management services; business consultancy services; business administration; office functions; business advice relating to financial re-organisation; administration of business affairs; advisory services relating to business management and organisation; advisory services relating to the acquisition of businesses; business advice; business assistance relating to the formation of commercial undertakings; business consulting and information services; business research and development services marketing services; marketing consultancy services; advertising services; advertising consultancy services; recruitment services; employment agency services; business information, advisory and consultancy services, all relating to the aforesaid services’,
– Class 36: ‘Financial services; financial investment services; insurance services; financial affairs; monetary affairs; real estate affairs; venture capital services; venture capital management services; venture capital fund management; venture capital funding services; providing financing to start-up and emerging companies; financing services for the securing of funds in respect of ventures; venture capital financing; project capital investment services; administration of financial affairs; financial consulting services; computerised advisory services; advisory services relating to financial matters; information, advisory and consultancy services, all relating to the aforesaid services’;
– the non-registered trade mark ATOMICO in all Member States of the European Union and in the United Kingdom of Great Britain and Northern Ireland in respect of the following services: ‘Financial services in relation to technology companies, investment services in relation to technology companies, business services in relation to technology companies, venture capital services in relation to technology companies, provision of strategic input, guidance, training and mentoring to technology companies, day-to-day operation and management of technology companies, development of computer software, and development and operation of online platforms’.
7 The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and Article 8(4) and (5) of 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).
8 On 20 December 2021, the Opposition Division upheld the opposition in its entirety on the basis of Article 8(5) of Regulation 2017/1001, with regard to the earlier EU trade mark.
9 On 18 February 2022, Mr Gomes Tominaga filed a notice of appeal with EUIPO against the decision of the Opposition Division.
10 By the contested decision, the Board of Appeal annulled the Opposition Division’s decision and remitted the case to the Opposition Division for examination of the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 and Article 8(4) of that regulation. According to the Board of Appeal, the evidence provided by the applicant was insufficient to establish the reputation of the earlier EU trade mark.
Forms of order sought
11 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs.
12 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in the event that a hearing is convened.
Law
13 In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(5) of Regulation 2017/1001. The applicant submits that the Board of Appeal incorrectly considered that the evidence which it had adduced was insufficient to establish that the earlier EU trade mark had a reputation in the European Union at the relevant date among the relevant public.
14 Under Article 8(5) of Regulation 2017/1001, upon opposition by the proprietor of a registered earlier trade mark within the meaning of paragraph 2, the trade mark applied for is not to be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier EU trade mark, the trade mark has a reputation in the European Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned, and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.
15 For an earlier trade mark to be afforded the broader protection under Article 8(5) of Regulation 2017/1001, a number of conditions must, therefore, be satisfied. First, the earlier trade mark which is claimed to have a reputation must be registered. Second, that mark and the mark applied for must be identical or similar. Third, it must have a reputation in the European Union, in the case of an earlier EU trade mark, or in the Member State concerned, in the case of an earlier national trade mark. Fourth, the use without due cause of the mark applied for must lead to the risk that unfair advantage might be taken of the distinctive character or the repute of the earlier trade mark or that it might be detrimental to the distinctive character or the repute of the earlier trade mark. As those conditions are cumulative, failure to satisfy one of them is sufficient to render that provision inapplicable (see judgments of 22 March 2007, Sigla v OHIM – Elleni Holding (VIPS), T‑215/03, EU:T:2007:93, paragraphs 34 and 35 and the case-law cited, and of 31 May 2017, Alma-The Soul of Italian Wine v EUIPO – Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE), T‑637/15, EU:T:2017:371, paragraph 29 and the case-law cited).
16 According to the case-law, in order to ascertain whether an earlier EU trade mark is known by a significant part of the relevant public, it is necessary to take into consideration all the relevant facts of the case, namely, in particular the market share held by the earlier mark, the intensity, geographical extent and duration of its use, and the amount spent by the undertaking in promoting it, without any requirement for that mark to be known by a given percentage of the relevant public or for its reputation to cover all the territory concerned, so long as that reputation exists in a substantial part of that territory (see judgment of 10 May 2007, Antartica v OHIM – Nasdaq Stock Market (nasdaq), T‑47/06, not published, EU:T:2007:131, paragraph 46 and the case-law cited).
The relevant public
17 The applicant disputes the definition of the relevant public adopted by the Board of Appeal in paragraph 39 of the contested decision, according to which the relevant public consisted of undertakings looking for money and investors looking for an opportunity.
18 According to the applicant, the relevant public comprises, first, investors in its funds and, second, technology companies that wish to attract its venture capital financing and to use its know-how to develop their business.
19 EUIPO disputes that restriction on the relevant public.
20 As regards the relevant public, it is apparent from the applicant’s prospectus of May 2021, entitled ‘Introduction to Atomico’ and submitted by the applicant during the proceedings before EUIPO as Exhibit KR10, that it is aimed at potential investors and founders of technology companies. According to the witness statement, to which that document is annexed, similar versions were regularly made available around the date of the trade mark application.
21 It is apparent from page 4 of that prospectus that the applicant’s business concept consists of discovering and investing in technology companies likely to become winners in category $B+. That discovery aspect implies that the applicant is not addressing itself solely to its pre-existing clients, but that its purpose is to identify new undertakings for which it seeks financing and in which it invests.
22 Similarly, the title of the prospectus which appears as ‘Introduction’ leaves no doubt that the public for which the applicant’s services are intended is not limited to its pre-existing clients or to specialists. On the contrary, the purpose of that prospectus is to present the applicant to a public which is not (yet) aware of it.
23 Therefore, the applicant is wrong to dispute the Board of Appeal’s definition of the relevant public. The Board of Appeal correctly based its assessment of the earlier EU trade mark on a relevant public consisting, first, of undertakings looking for money and, second, of investors looking for an opportunity.
The errors of assessment alleged by the applicant
24 The applicant complains that the Board of Appeal erred in finding that the evidence which it had adduced was insufficient to prove the reputation of the earlier EU trade mark. It alleges in that regard seven errors of assessment.
The absence of a market survey or opinion poll
25 In paragraph 38 of the contested decision, the Board of Appeal found that the applicant had not adduced a market survey or opinion poll.
26 The applicant submits that, given that the relevant public was specialised and that it would therefore be difficult to conduct a survey among a sufficiently large part of the relevant public, the reputation of the earlier mark had to be proved by other means which it was free to choose in the light of the relevant case-law and the EUIPO guidelines.
27 EUIPO disputes the relevance of that line of argument.
28 The Board of Appeal’s finding, in paragraph 38 of the contested decision, that the applicant did not adduce a market survey or opinion poll cannot be interpreted as the implementation of a systematic and indispensable requirement in order to be able to demonstrate the reputation of a mark. Rather, that consideration must be viewed in the overall context of the contested decision, namely that the Board of Appeal noted the weakness of the evidence put forward by the applicant and noted that the applicant did not adduce a market survey or opinion poll which could have offset that weakness. Accordingly, as EUIPO points out, the Board of Appeal did not in any way take the view that a market survey or an opinion poll was indispensable, with the result that it was entirely possible for the applicant to choose freely the evidence with which it intended to prove the reputation of the earlier EU trade mark.
29 The applicant’s first complaint is therefore ineffective.
The dates of some exhibits
30 The applicant submits that the Board of Appeal erred in arbitrarily setting short periods during which evidence could shed light on the reputation of the earlier EU trade mark at the relevant date. The Board of Appeal was wrong to consider that documents relating to periods three, four and five years before the relevant date fell outside the scope of the analysis on the ground that those documents were too early and that a document dated two years after the relevant date fell outside the scope of the analysis on the ground that it was too late. The applicant claims that there is no ‘cut-off’ as such, since it will always depend on the evidence in question if it is capable of proving the reputation of the earlier mark at the relevant date.
31 As regards the undated exhibits, the applicant states that it is generally possible to deduce a date from the content of the document or by referring to the witness statement.
32 EUIPO disputes the applicant’s arguments.
33 In that regard, first, the Board of Appeal correctly found that the relevant date for the assessment of the reputation of the earlier mark was the date on which the mark applied for was filed, namely 9 February 2018.
34 Second, according to the case-law, the evidential value of a document is likely to vary depending on whether the period covered is close to or distant from the filing date (see judgment of 16 December 2010, Rubinstein v OHIM – Allergan (BOTOLIST), T‑345/08 and T‑357/08, not published, EU:T:2010:529, paragraph 52 and the case-law cited).
35 In paragraph 27 of the contested decision, the Board of Appeal observed that Exhibits KR2, KR11 and KR24 bore a date that was distant in time from the relevant date. In paragraph 28 of the contested decision, the Board of Appeal added that some documents were undated.
36 As regards Exhibits KR2 and KR11, it is sufficient to note that the Board of Appeal did not exclude them from its analysis. In paragraph 29 of the contested decision, it took into account, together with several other documents, the press articles produced with those exhibits and their evidential value for the media coverage of the earlier EU trade mark.
37 Exhibit KR24 is a screenshot of the Level20 website, which includes ATOMICO among the displayed marks of its sponsors. According to the witness statement, to which that document is annexed, Level20 is an organisation promoting the employment of women in senior roles in the European private equity industry.
38 As regards the applicant’s complaint that the Board of Appeal erred in finding that Exhibit KR24 dated from 2014, it must be held that the contested decision is vitiated by a typing error in paragraph 27, where the Board of Appeal appears to maintain that Exhibit KR24 dates from 2014. However, it is apparent both from the other references to that exhibit and from the references to Exhibit KR25 in the contested decision that the Board of Appeal was well aware of the fact that it was Exhibit KR25 which dated from 2014 and not Exhibit KR24. As regards Exhibit KR24, the applicant did not provide any information on the date of that document, and the witness statement, reproduced in paragraph 24 of the contested decision, also contains no details in that regard. Moreover, the Board of Appeal did not exclude that exhibit from its findings.
39 In addition, the screenshot shows 83 different logos. The applicant does not explain to what extent the fact that its logo which contains the earlier EU trade mark is among a considerable number of sponsors of an initiative such as Level20 is supposed to prove the reputation of the earlier EU trade mark within the European Union.
The evidential value of the press articles
40 In paragraphs 29 and 30 of the contested decision, the Board of Appeal found that the evidential value of press articles and other publications depended principally on whether those publications covered promotional matters or whether, on the contrary, they were the result of independent and objective research done by independent professionals. The applicant did not provide any information in that regard that would enable the Board of Appeal to assess the media coverage set out in Exhibits KR2, KR3, KR4, KR5, KR6, KR7, KR8, KR11, KR12, KR13 and KR14. Furthermore, the applicant failed to state that the investors read the magazines or newspapers concerned and whether they were popular with them.
41 The applicant emphasises the relevance of Exhibits KR2, KR3, KR4, KR5, KR7 and KR8 for the reputation of the earlier EU trade mark and submits that the purely promotional press sometimes reaches a greater public than a much more worthy, independent and researched article published in an obscure magazine.
42 EUIPO disputes the applicant’s arguments.
43 According to settled case-law, in the case of a scientific publication or a publication in the general-interest press, the very existence of that publication constitutes a relevant factor in establishing the reputation of the goods marketed under the trade mark with the general public, irrespective of the positive or negative content of those articles (judgment of 16 December 2010, BOTOLIST, T‑345/08 and T‑357/08, not published, EU:T:2010:529, paragraph 54).
44 First, as regards the article entitled ‘The Climate Corporation bought by Monsanto for $1.1 billion’ attached in Exhibit KR2, and the first article set out in Exhibit KR4, the applicant accepts that those are self-publications. Similarly, it submits that the first article in Exhibit KR8 comes from Scandit, a company based in Sweden in which the applicant has invested.
45 Although the applicant submits, with regard to self-publications, that the purely promotional press sometimes reaches a greater public than a more worthy, independent and researched article published in an obscure magazine, it must be held that it did not, however, provide any information on the dissemination of the abovementioned documents submitted in Exhibits KR2, KR4 and KR8. In that regard, the applicant has in particular failed to raise the point that a presentation of figures on the volume of distribution of its own publications or publications from sources under its influence was not possible.
46 Second, as regards the articles published either by American media or by British media, it is common ground that the applicant has not provided any information on the number of readers or the number of copies distributed within the European Union.
47 The Board of Appeal was therefore right not to take into consideration publications from American media, namely WSJ, TechCrunch (KR3, KR4, KR7), Vox (KR5) and VentureBeat (KR7).
48 As regards the article from Forbes magazine (see Exhibit KR2), which the relevant public is likely to become aware of because of the renown of that magazine, it is sufficient to note that the Board of Appeal did not exclude it from its assessment but considered that its evidential value was rather low in view of its date of publication which was significantly distant in time from the relevant date, namely 2013.
49 As regards the articles from the Reuters news agency (see Exhibit KR2) and Financial Times (see Exhibit KR3), which, despite their British origin, are also widely read in financial circles in the European Union, it is true that they state that the applicant participated, among others, in the financing of a transaction concerning the Finnish company Rovio Entertainment Ltd and a transaction by the Swedish start-up Klarna. However, two articles which appeared in newspapers are not sufficient to establish reputation.
50 Third, the publication on the tech.eu website (www.tech.eu), set out in Exhibit KR13, does not contain any relevant information on knowledge of the earlier EU trade mark within the European Union. That article merely introduces some of the applicant’s employees and their ambitions to promote the growth of technology companies in Europe. Moreover, tech.eu is managed by a company established in London (United Kingdom). The applicant has not shown that that site was actually used by the relevant public in the European Union.
51 The publication on EU-Startups (www.eu-startups.com) set out in Exhibit KR5 in which the applicant is listed among other investors as the financier of a company called Truecaller based in Stockholm (Sweden) does not provide, even in conjunction with the two publications referred to in paragraph 49 above on participation in the financing of Rovio Entertainment and Klarna, sufficient information to infer a reputation within the meaning of Article 8(5) of Regulation 2017/1001 concerning the applicant’s mark in the European Union. In the absence of further information on the venture capital market and the overall volume of transactions carried out in the European Union, it is not possible to establish the reputation of the earlier EU trade mark on the basis of a few articles which demonstrate a successful investment made by the applicant.
52 As regards the publications in Swedish media set out in Exhibit KR14, the applicant relied on an article dated 30 November 2016, entitled ‘Atomico: 14.7 billion is pumped into Swedish tech companies – this year alone’. However, that article does not deal with the applicant’s investment activities but with the analyses it carries out itself: ‘Atomico estimates that Swedish tech companies will withdraw more than SEK 1.47 billion’. That article therefore does not support a finding that the earlier EU trade mark has a reputation.
53 Given that the media extracts adduced by the applicant are either self-publications or publications outside the European Union or publications containing very little information on the earlier EU trade mark, the Board of Appeal did not err in finding, in paragraph 44 of the contested decision, that the evidence provided by the applicant did not make it possible to ascertain the actual degree of knowledge or recognition of that mark among the relevant public.
The internal reports
54 In paragraph 31 of the contested decision, the Board of Appeal found that the internal reports adduced by the applicant had to be treated with caution, given that they had been created by the applicant and were self-serving.
55 The applicant submits that it is apparent from the EUIPO guidelines that internally generated evidence was common in EUIPO proceedings and was regularly regarded as probative, even though it required a certain degree of caution. In the absence of evidence from an external source, it should nevertheless be given some value. In any event, evidence from an internal source may be supported by independent evidence.
56 The applicant claims that, in the present case, the fact that it is an undertaking operating in a sector which is heavily regulated and subject to extensive institutional oversight should reinforce the probative value of internal documents.
57 EUIPO disputes the applicant’s arguments.
58 As regards the applicant’s internal documents set out in Exhibits KR1 and KR9, it should be noted that only Exhibit KR1 contains official documents, namely the ‘Quarterly Reports’ for the years 2017 and 2018, possibly intended to be presented outside the undertaking and therefore possibly subject to regulations which may increase the evidential value of those documents. However, it is apparent from the footnotes to those reports that they concern a company established in the Cayman Islands and not the applicant which is incorporated in the British Virgin Islands. Moreover, the applicant has not explained to what extent the heavy regulations on which it relies in order to prove the reliability of its documents are applicable to the documents which it adduced or to what extent extensive institutional supervision has an impact on those documents.
59 In any event, the investment lists produced in Exhibits KR1 and KR9 are lists for internal use which do not contain data forming part of the applicant’s accounts, since those lists specify only the names of the undertakings, the dates of acquisition and the geographical area of the investments. Furthermore, the ‘geography’ column merely contains a reference to ‘Europe’ and it is not stated whether those investments concern undertakings established in the European Union, so that those lists do not indicate the extent of the applicant’s activity within the European Union.
60 The burden of proof of the reputation of the earlier mark lies with the applicant. Accordingly, it is for the applicant to explain diligently to what extent the documents adduced form a whole in order to establish the evidence required. The applicant did not carry out that task of supporting the information contained in its internal reports with press articles or other objective documents. Admittedly, the applicant added to the internal list of investments, set out in Exhibit KR9, press articles relating to a number of investments in companies that have their registered office in the European Union, made with the applicant’s participation, in Exhibits KR2 to KR8. However, it is not sufficient to adduce, during the administrative procedure, a large number of documents without identifying to which investments in question the individual articles from a third party relate, especially since the list in Exhibit KR9 does not even specify in which State the companies established in ‘Europe’ had their registered office, so that it is not possible to know whether they are established in the European Union.
61 Consequently, the Board of Appeal did not make an error of assessment in finding that the internal reports adduced by the applicant had to be treated with caution and could not be accorded the same evidential value as documents drawn up by independent sources.
The use of the mark on the website and social media
62 In paragraph 33 of the contested decision, the Board of Appeal found that presence on the internet, through a website or on social media, may prove that a mark has acquired some reputation. According to the Board of Appeal, it would, however, have been necessary to produce a report on the range of dates, the number of users, the average duration of the session, the bounce rate and the territorial or geographic location of the users who accessed the applicant’s website. As regards social media, extracts from social media platforms may, according to the Board of Appeal, be regarded as coming from independent sources in so far as they include information created by the platforms themselves, which cannot be controlled or modified by the owner of a page or an account. In that regard, the Board of Appeal found that the applicant had failed to fulfil its obligation to provide that information and clarification, in particular as regards the source of information and the location of the persons who follow its tweets.
63 The applicant submits that it provided a large part of the allegedly missing information in Exhibit KR20 by identifying new users, their geographical location and the total number of sessions. According to the applicant, the level of detail of the evidence requested by the Board of Appeal is not necessary. The applicant made it clear that the main means of promotion was word of mouth, while the use of the website or social media was less important.
64 EUIPO disputes the applicant’s arguments.
65 In Exhibit KR20, the applicant submitted a spreadsheet for the purpose of indicating the number of visitors to its website in June 2018. However, since that spreadsheet does not contain any indication of its author or source, it is not such as to prove that the earlier EU trade mark has a reputation.
66 Furthermore, as EUIPO correctly observed, the information contained in Exhibit KR20 cannot be linked to a specific date or period either, since there is no indication of a date on the list reproduced in that exhibit.
67 As regards the social media extracts produced in Exhibits KR21 and KR22, it is sufficient to note, as observed by EUIPO, that they do not provide any specific data relating to the European Union.
68 It follows that the Board of Appeal correctly found that the information provided by the applicant on the use of its website and social media was insufficient and did not enable it to assess whether those digital communication channels had contributed to the reputation of the earlier EU trade mark.
The award obtained
69 In paragraph 36 of the contested decision, dealing with an award which the applicant claims to have received, the Board of Appeal found that the applicant had not provided any additional information on the criteria relating to the manner in which the award had been obtained.
70 The applicant argues that the information it provided was sufficient, referring to the witness statement of its principal legal counsel, from which it is apparent that it is the ‘Exit of the Year’ award of the ‘Allstars Awards’ which had been won as a result of the applicant’s investment in a Finnish mobile games company and its subsequent exit from it.
71 EUIPO disputes the applicant’s argument.
72 The mere fact of having won an award, in itself, does not provide any information on the reputation of a trade mark. The evidential value of the assessment of reputation depends on the details, in particular, as regards the criteria for granting the award, the number and qualification of competing candidates and whether the award was publicised among the relevant public at the relevant date.
73 In that regard, the applicant stated the title of the award, namely ‘Exit of the Year’, and the broader category in which that award features, namely ‘Allstars Awards’. It also emphasised that that type of award, according to the witness statement of its employee, represented the ‘Oscar’ of the sector. Lastly, it explained that the award had been won in 2014 as a result of the applicant’s investment in the Finnish mobile games company Supercell and its subsequent exit from that company.
74 However, it is not apparent from that information to what extent that award is known in the European Union. The applicant has not indicated either the registered office of the organisation granting the Allstars Awards or details about the publication or distribution of the grant of the award. The mere fact that the reason for granting that award was an investment in Finland does not show that the relevant public either in Finland or in the European Union was aware of the award.
75 Consequently, the Board of Appeal did not make an error of assessment in finding that the information provided by the applicant on the award it received in order to establish the reputation of the earlier EU trade mark was insufficient.
The distinction between the use of the earlier EU trade mark in Europe and in the European Union
76 In paragraphs 40 and 41 of the contested decision, the Board of Appeal found, in essence, that while the applicant claims that its mark has acquired a reputation in Europe, the evidence relating to the United Kingdom is not capable of proving that reputation. Since the withdrawal of the United Kingdom from the European Union, proof of reputation referring, in the context of opposition proceedings, to that territory no longer has a valid legal basis.
77 Moreover, the Board of Appeal concluded in paragraph 42 of the contested decision that, in so far as the applicant referred to the reputation which its mark had acquired in Sweden, it had not provided any specific evidence concerning that country, with the exception of two investments made in Swedish companies, the hiring of a marketing agent in Sweden, 7 989 website connections from persons located in that country and three employees who participated in three different conferences in Sweden.
78 The applicant complains that the Board of Appeal misinterpreted the evidence adduced. There is ample evidence of individual investments and exits by the applicant relating to companies based in Member States of the European Union, in particular in Germany, Finland and Sweden. The applicant’s list of investments includes many EU companies and the applicant regularly participates in industry events. In addition, the evidence includes significant advertising of the services provided by the applicant to EU undertakings in media distributed in the European Union.
79 EUIPO disputes the applicant’s arguments.
80 In that regard, the Board of Appeal was right to observe that the applicant, both in its written pleadings and in the evidence which it submitted, does not draw a clear distinction between Europe and the European Union. In a large number of documents, it uses the term ‘Europe’ as a geographical name, rather designating the continent, including, in particular, the United Kingdom. On that basis, it is not possible to verify the reputation of the earlier EU trade mark in the European Union, since most of the evidence submitted must be disregarded, since it does not expressly use the term ‘European Union’.
81 The Board of Appeal was obliged not to take into account the use of the earlier EU trade mark in the United Kingdom – which was no longer enforceable against interveners at the date of the contested decision – and to disregard the evidence relating to it (see, to that effect, judgment of 12 October 2022, Shopify v EUIPO – Rossi and Others (Shoppi), T‑222/21, under appeal, EU:T:2022:633, paragraphs 96 to 104), which, moreover, is not disputed by the applicant.
82 As the applicant did not make the required distinction that has become necessary in particular because of the United Kingdom’s withdrawal from the European Union (see paragraph 76 above), it has not succeeded in proving the reputation of the earlier EU trade mark in the European Union.
83 Admittedly, it is sufficient that reputation exists in part of the European Union. In that regard, the applicant adduced press publications from which it is apparent that it made two investments in Finnish undertakings, two investments in German undertakings, one investment in an Estonian company, one investment in a Dutch company and six investments in Sweden.
84 However, even the information on those six investments made by the applicant in Swedish undertakings is not sufficient, in the absence of further information on the Swedish investment market, to infer that the earlier EU trade mark has a reputation in that country. In that regard, it should be noted, as done by EUIPO, that the applicant has not provided information on the relevant EU market or its market share. In so far as the applicant submits that it drew up a report on the ‘ecosystem for European startups’ announced in its article of 30 November 2016 set out in Exhibit KR14 (cited in paragraph 52 above), it should have been able to provide relevant figures for the venture capital market in the European Union, in particular on investments in the technology sector, but not limited to it.
85 In the light of the foregoing, the Board of Appeal’s finding, in paragraph 43 et seq. of the contested decision, that it was not possible to establish the reputation of the earlier EU trade mark in the light of all the evidence adduced by the applicant, which did not make it possible to ascertain the actual degree of knowledge or recognition of the mark in the relevant sector of the relevant public in a significant part of the European Union, is not vitiated by error.
86 In the light of all of the foregoing considerations, the single plea in law put forward by the applicant cannot be upheld, with the result that the action must be dismissed.
Costs
87 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.
88 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 (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Atomico Investment Holdings Ltd to pay the costs.
Delivered in open court in Luxembourg on 28 February 2024.
V. Di Bucci | | M. van der Woude |