JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
26 July 2023 (*)
(EU trade mark – Revocation proceedings – EU figurative mark representing the outline of a bear – Partial revocation – Genuine use of the trade mark – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) – Proof of genuine use)
In Case T‑638/21,
Apart sp. z o.o., established in Suchy Las (Poland), represented by J. Gwiazdowska, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Klee and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
S. Tous, SL, established in Manresa (Spain), represented by D. Gómez Sánchez, J.L. Gracia Albero, M. Molina García and M. Schaaf, lawyers,
THE GENERAL COURT (Fifth Chamber),
composed, at the time of the deliberations, of D. Spielmann, President, U. Öberg and I. Gâlea (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 29 November 2022,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Apart sp. z o.o., seeks the annulment and alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 July 2021 (Case R 1437/2020-5) (‘the contested decision’).
Background to the dispute
2 On 23 May 2017, the applicant filed an application with EUIPO for revocation of the EU trade mark registered further to an application filed on 26 February 2009 for the following figurative sign:
3 The goods covered by the contested mark are in Classes 14, 18 and 25 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 correspond, for each of those classes, to the following description:
– Class 14: ‘Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments’;
– Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas and parasols’;
– Class 25: ‘Clothing, footwear, headgear’.
4 The ground relied on in support of the application for revocation was that set out in Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (now Article 58(1)(a) 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)).
5 On 8 September 2017, the intervener, S. Tous, SL, submitted evidence intended to establish genuine use of the contested mark. On 21 June 2018, it submitted additional evidence.
6 On 15 May 2020, the Cancellation Division partially upheld the application for revocation. The intervener’s rights in the contested mark were revoked with effect from 23 May 2017 in respect of some of the contested goods, namely:
– Class 14: ‘Precious metals and their alloys; precious stones; horological instruments except wrist watches; chronometric instruments’;
– Class 18: ‘Leather and imitations of leather; animal skins; hides; parasols’;
– Class 25: ‘Clothing, except scarves and baby clothing, footwear, except baby footwear; headgear’.
7 On 13 July 2020, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division, requesting, inter alia, that that decision be annulled in so far as the Cancellation Division had partially rejected the application for revocation of the contested mark in respect of certain goods.
8 By the contested decision, the Fifth Board of Appeal dismissed the appeal. First of all, it examined the evidence produced by the intervener in order to establish genuine use of the mark. In the light of that evidence, it concluded that the contested mark had been used ‘as a trade mark in the course of trade’. The Board of Appeal also found that the contested mark was distinctive, since it consisted of the outline of a bear. In addition, it found that the representation of the trade mark in various forms in the evidence would be immediately identified by the relevant consumers and that none of the alterations made to that mark was so significant that the characteristic outline of the sign would not be visible. Accordingly, it concluded that the contested mark had been used in acceptable variants in accordance with point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 (now point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001), and that its use in relation to the goods at issue had been sufficiently demonstrated to create or maintain market shares on the specific market.
Forms of order sought
9 The applicant claims that the Court should:
– annul the contested decision and alter the decision in order to revoke the contested mark;
– in the alternative, annul the contested decision and refer the case back to EUIPO;
– order EUIPO and the intervener to pay the costs incurred before the Board of Appeal and before the Court.
10 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
11 The intervener contends that the Court should:
– in essence, dismiss the action;
– order the applicant to pay the costs, including those incurred before the Cancellation Division and the Board of Appeal.
Law
Preliminary observations
12 As a preliminary point, it should be observed that the applicant refers, in its written pleadings, to the provisions of Regulation 2017/1001. However, given the date on which the application for revocation at issue was filed, namely 23 May 2017, which is decisive for the purpose 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, not published, 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 references made by the parties 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).
13 According to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited).
14 Regulation 2017/1001 entered into force on 1 October 2017, on which date the proceedings before the Cancellation Division were still ongoing. 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) entered into force on 14 May 2018. Article 80 of Delegated Regulation 2018/625 provides that the provisions 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) are to continue to apply to ongoing proceedings where that regulation does not apply in accordance with its Article 82, until such proceedings are concluded. Article 82(2)(d) of Delegated Regulation 2018/625 provides that Article 10, relating to proof of use, is not to apply to requests for proof of use made before 1 October 2017.
15 Since the request for proof of use was made before 1 October 2017, the provisions of Regulation No 2868/95 must apply. By contrast, the provisions of Delegated Regulation 2018/625 apply as regards the question of the scope of the appeal brought before the Board of Appeal and the question of the admissibility of the observations lodged by the applicant on 18 December 2020, examined in paragraph 16 et seq. and in paragraph 35 et seq. below, respectively.
The request to set the date of revocation at an earlier date than the date of the application for revocation
16 The applicant complains that the Board of Appeal refused to grant its request to set an earlier date than the filing date of the application for revocation, for the purpose of determining the date from which the revocation thus declared in respect of the goods referred to in paragraph 6 above would take effect. It submits that the Board of Appeal failed to take into account the evidence relating to that request and did not provide reasons for its decision in that regard.
17 The Board of Appeal found, in paragraph 13 of the contested decision, that the applicant had limited the scope of its appeal in its statement of grounds, seeking annulment of the decision of the Cancellation Division only in so far as it had rejected the application for revocation in respect of certain goods in Classes 14, 18 and 25 for which it had found that the intervener had furnished sufficient evidence to show proof of use. The Board of Appeal inferred from this that the Cancellation Division’s decision was not disputed in so far as it had partially upheld the application for revocation in respect of some of the goods in those classes for which it had found that the intervener had not furnished proof of use. Accordingly, the Board of Appeal found that the request to set an earlier date than the filing date of the application for revocation, for the purpose of establishing the date on which the partial revocation was to take effect, had not been appealed either. Consequently, it concluded that, to that extent, the contested decision was final on that point.
18 The Board of Appeal found that, in its statement of grounds, the applicant requested that the date of the effects of the revocation, for the goods in respect of which the application for revocation had been upheld, be set at an earlier date than the filing date of the application for revocation and pointed out that, under Article 22(1)(b) of Delegated Regulation 2018/625, that statement must not extend the limits of the scope of the appeal as established in the notice of appeal in accordance with Article 21(1)(e) of Delegated Regulation 2018/625. It therefore held that the request had to be rejected as inadmissible.
19 EUIPO and the intervener dispute the applicant’s arguments.
20 The Court observes, as the Board of Appeal pointed out, that the applicant sought, in the statement of grounds, annulment of the decision of the Cancellation Division only in part, in so far as it had rejected the application for revocation in respect of some of the goods and services in Classes 14, 18 and 25.
21 In accordance with Article 95(1) of Regulation 2017/1001, the examination of the merits of the appeal by the Board of Appeal is to be restricted to the facts, evidence and arguments provided by the parties and the relief sought. Similarly, the first sentence of Article 64(5) of that regulation states that, if examination of the application for revocation of rights or for a declaration of invalidity reveals that the trade mark should not have been registered in respect of some or all of the goods or services for which it is registered, the rights of the proprietor of the EU trade mark are to be revoked or it is to be declared invalid in respect of those goods or services. In addition, Article 21(1)(e) of Delegated Regulation 2018/625 states that the notice of appeal filed in accordance with Article 68(1) of that regulation must contain, where the decision subject to appeal is only contested in part, a clear and unambiguous identification of the goods and services in respect of which the decision subject to appeal is contested.
22 It is apparent from the provisions referred to in paragraph 21 above, read in conjunction with the first sentence of Article 71(1) of Regulation 2017/1001, that the Board of Appeal, in the context of an appeal relating to an application for revocation of a mark and brought against a decision of the Cancellation Division, cannot adjudicate beyond the forms of order sought before it.
23 In that regard, it has already been held that, in the context of an appeal relating to a relative ground for refusal of registration of a mark, which is brought against a decision of the Opposition Division, the Board of Appeal could not adjudicate beyond the subject matter of the appeal brought before it. The Board of Appeal can thus annul such a decision only within the limits of the submissions made by an appellant in the appeal against the latter decision or, where applicable, by the respondent in its observations in reply (see, to that effect and by analogy, judgments of 19 September 2018, Eddy’s Snack Company v EUIPO – Chocoladefabriken Lindt & Sprüngli (Eddy’s Snackcompany), T‑652/17, not published, EU:T:2018:564, paragraph 20, and of 13 October 2021, Škoda Investment v EUIPO – Škoda Auto (Representation of an arrow with wing), T‑712/20, EU:T:2021:700, paragraph 22).
24 It should be noted, as observed by EUIPO, that the Cancellation Division’s decision has become final with regard to the goods in respect of which the application for revocation was upheld and that that point was not disputed by the applicant in its appeal before the Board of Appeal. Consequently, the Board of Appeal was fully entitled to decide that the applicant’s request to set an earlier date than the filing date of the application for revocation had to be rejected as inadmissible.
Admissibility of certain evidence and certain observations
25 The applicant complains that the Board of Appeal endorsed the findings of the Cancellation Division concerning the admissibility of the evidence produced by the intervener on 21 June 2018, while declaring inadmissible the observations which the applicant had itself made on 18 December 2020.
– The evidence submitted out of time to the Cancellation Division
26 The applicant claims that the additional evidence produced by the intervener on 21 June 2018 should not have been taken into consideration because it was submitted out of time.
27 EUIPO and the intervener dispute the applicant’s arguments.
28 In the contested decision, the Board of Appeal stated that the additional evidence submitted on 21 June 2018 to the Cancellation Division merely strengthened and clarified the evidence submitted initially on 8 September 2017. Furthermore, the Board of Appeal noted that the applicant had disputed the evidence initially submitted and that the submission of new evidence was justified in response to those objections. The Board of Appeal therefore concluded that the applicant’s complaint that the new evidence should not have been taken into consideration had to be rejected.
29 As a preliminary point, it should be recalled that Rule 40(5) of Regulation No 2868/95 provides that, in the case of an application for revocation based on Article 50(1)(a) of that regulation, the Office is to invite the proprietor of the Community trade mark to furnish proof of genuine use of the mark, within such period as it may specify. If the proprietor of the contested mark does not provide that proof within the time limit set, EUIPO is to revoke the trade mark.
30 However, account must be taken of the discretion conferred on EUIPO by Article 95(2) of Regulation 2017/1001, which states that EUIPO may disregard facts or evidence which are not submitted in due time by the parties concerned.
31 In that regard, it must be borne in mind that, when no proof of use of the mark concerned is submitted within the time limit set by EUIPO, the application for revocation must automatically be rejected by it. However, when evidence is produced within the time limit set by EUIPO, the production of supplementary evidence remains possible (see, to that effect, judgment of 21 July 2016, EUIPO v Grau Ferrer, C‑597/14 P, EU:C:2016:579, paragraph 26).
32 In stating that the latter ‘may’, in such a case, decide to disregard evidence, Article 95(2) of Regulation 2017/1001 grants EUIPO broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account (see, to that effect, judgment of 18 July 2013, New Yorker SHK Jeans v OHIM, C‑621/11 P, EU:C:2013:484, paragraph 23).
33 As regards, more specifically, the submission of evidence of genuine use of the trade mark in revocation proceedings brought on the basis of Article 51(1)(a) of Regulation No 207/2009, it is also apparent from the case-law that Rule 40(5) of Regulation No 2868/95 provides, in that regard, that EUIPO is to invite the proprietor of the EU trade mark to furnish proof of genuine use of the mark, within such period as it may specify. That rule also provides, in its second sentence, that if the proof of use of the mark is not provided within the time limit set by EUIPO, the mark is to be revoked. It follows that, where no proof of use of the mark concerned is submitted within the period set by EUIPO, the latter must, as a rule, revoke the mark of its own motion. However, that is not required where evidence, which is not entirely irrelevant, of that use has been submitted within that time limit. It also follows therefrom that it remains possible to submit evidence of use of the mark in addition to the evidence adduced within the time limit set by EUIPO under Rule 40(5) of Regulation No 2868/95 after expiry of that time limit and that EUIPO is in no way prohibited from taking account of additional evidence which is submitted out of time (see judgment of 9 February 2022, Heitec v EUIPO – Hetec Datensysteme (HEITEC), T‑520/19, not published, EU:T:2022:66, paragraphs 33 to 35 and the case-law cited).
34 Similarly, it has already been held that it was possible for the proprietor of a contested mark to submit additional evidence outside the time limit set by the EUIPO division adjudicating on the matter at first instance, in so far as that evidence was not the initial and only proof of use, but was evidence additional to relevant proof which was submitted within the time limit (see judgment of 3 October 2019, 6Minutes Media v EUIPO – ad pepper media International (ADPepper), T‑668/18, not published, EU:T:2019:719, paragraph 21 and the case-law cited).
35 It must be stated that, as EUIPO submits, the additional evidence consists in sample invoices for further sales in various countries of the European Union during the period between 2014 and 2017 and supplements the evidence submitted before the end of that time limit. Moreover, that evidence enabled the intervener to respond to the observations submitted by the applicant in objection to the evidence initially submitted.
36 In the light of those considerations, it must be held that the Board of Appeal did not fail to exercise its broad discretion in accepting the additional evidence submitted by the intervener on 21 June 2018.
– Admissibility of the observations submitted by the applicant on 18 December 2020
37 The applicant complains that the Board of Appeal failed to take into consideration the observations it submitted in its letter of 18 December 2020 and claims that the Board of Appeal’s refusal to do so is unjustified, since EUIPO sent that letter on to the intervener and included the observations in the case file, which, according to the applicant, meant that it had accepted them.
38 EUIPO and the intervener dispute the applicant’s arguments.
39 The Board of Appeal noted that the applicant had been informed, by letter of 30 November 2020, that the written procedure had been closed and that it would take a decision on the basis of the arguments and evidence before it. In addition, it pointed out that the applicant had had the opportunity to request a second round of written submissions. It therefore concluded that the observations in question were inadmissible.
40 The procedure before the Board of Appeal is set out in Title V of Delegated Regulation 2018/625, entitled ‘Appeals’. Articles 21 to 26 of that delegated regulation refer specifically to the various stages of the written part of that procedure. In particular, during that written part, the notice of appeal and the statement setting out the grounds of appeal are followed by the submission of observations in response of the other party in the proceedings. Subsequently, in accordance with Article 26(1) of Delegated Regulation 2018/625, the Board of Appeal may authorise the appellant to supplement the statement of grounds with a reply within such period as it may specify. Such authorisation may be granted only upon a reasoned request by the appellant, filed within two weeks of the notification of the response.
41 In accordance with the procedure laid down in Delegated Regulation 2018/625, after the submission of observations in response by the other party in the proceedings, the appellant still has the opportunity to request authorisation from the Board of Appeal to submit a reply on those observations, including on any new evidence submitted (judgment of 16 June 2021, Fidia farmaceutici v EUIPO – Ioulia and Irene Tseti Pharmaceutical Laboratories (HYAL), T‑215/20, not published, EU:T:2021:371, paragraph 87).
42 In the present case, it is sufficient to note that, as EUIPO observes, following receipt of the observations of 18 November 2020, the applicant did not request, within the period of two weeks following that receipt, authorisation to submit a reply, even though it had that opportunity to submit its observations.
43 Consequently, the view cannot be taken that the Board of Appeal failed to take into account the observations submitted by the applicant in its letter of 18 December 2020 and deprived it of the opportunity to submit observations on the response of 18 November 2020.
The claims for annulment
44 In support of its action, the applicant puts forward three pleas in law. The first plea alleges infringement of Article 51(1)(a) and Article 15(1) of Regulation No 207/2009. The second plea alleges failure to state reasons, in breach of Article 94(1) and Article 95(1) of Regulation 2017/1001. The third plea alleges infringement of Article 20 and Article 41(1) and (2)(a) and (c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), relating to the right to be heard, the obligation of the administration to give reasons for its decisions, and the principles of sound administration, legal certainty and equal treatment.
The second plea in law, alleging infringement of Article 94(1) and Article 95(1) of Regulation 2017/1001
45 By its second plea, the applicant complains that the Board of Appeal failed to state reasons for its decision and, in particular, that it analysed the genuine use of the trade mark solely on the basis of evidence from unreliable third-party statements, such as the certificate issued by the Asociación para la Defensa de la Marca (Andema). The applicant refers in that regard to its arguments set out in connection with the first plea.
46 EUIPO and the intervener dispute the applicant’s arguments.
47 It must be recalled that, under Article 94(1) of Regulation 2017/1001, decisions of EUIPO are to state the reasons on which they are based. According to the case-law, that duty has the same scope as that enshrined in the second paragraph of Article 296 TFEU and its purpose is, first, to allow interested parties to know the justification for the measure so as to enable them to protect their rights and, second, to enable the EU judicature to exercise its power to review the legality of the contested decision (judgment of 6 September 2012, Storck v OHIM, C‑96/11 P, EU:C:2012:537, paragraph 86; see, also, judgment of 28 April 2004, Sunrider v OHIM – Vitakraft-Werke Wührmann and Friesland Brands (VITATASTE and METABALANCE 44), T‑124/02 and T‑156/02, EU:T:2004:116, paragraphs 72 and 73 and the case-law cited).
48 However, the duty to state reasons does not require the Boards of Appeal to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. It is therefore sufficient if the institution concerned sets out the facts and the legal considerations having decisive importance in the context of the decision (judgment of 27 February 2018, Hansen Medical v EUIPO – Covidien (MAGELLAN), T‑222/16, not published, EU:T:2018:99, paragraph 50 and the case-law cited).
49 First, the applicant complains that the Board of Appeal did not explain the reasoning which led it to consider that the certificate issued by Andema constituted objective evidence.
50 In that regard, the Board of Appeal stated that the certificate issued by Andema, which was an independent association, came from a third party that was not related to the intervener and therefore originated outside its sphere of influence, unlike the other certificates. The Board of Appeal therefore concluded that the certificate was objective evidence which in itself attested to certain facts, but was not, however, the only evidence on which it based its overall assessment, since it was corroborated by other evidence.
51 Consequently, it must be held that the Board of Appeal stated reasons for its assessment to the requisite legal standard and that the applicant’s argument must be rejected.
52 Secondly, the applicant reiterates, in essence, its complaints relating to the assessment of genuine use of the contested mark under Article 51(1)(a) of Regulation No 207/2009, read in conjunction with Article 15(1) thereof, and claims that the Board of Appeal failed to explain the reasoning which enabled it to reach its conclusions on that point.
53 In the present case, the Board of Appeal analysed the genuine use of the contested mark with regard to the evidence submitted, concluding that the use of that mark had been shown during the relevant period and in the relevant territory. As regards the extent of use, it found that the evidence submitted by the intervener supported the conclusion that the threshold established by the case-law had been reached. Furthermore, with regard to the nature of use, the Board of Appeal found that, in the light of the relevant case-law, the contested mark had been used as a trade mark in the course of trade and that use in other forms did not alter its distinctive character.
54 In that regard, it must be stated, as EUIPO submits, that the Board of Appeal set out its reasoning in detail in paragraphs 42 to 107 of the contested decision, including explicit references to the evidence.
55 In addition, it should be noted that the applicant disputes the validity of the Board of Appeal’s reasoning, which is examined in connection with the first plea in paragraphs 61 to 125 below.
56 It follows that, contrary to what the applicant claims, the Board of Appeal did provide a statement of reasons to the requisite legal standard in the contested decision as to the question whether the applicant had furnished proof of genuine use of the contested mark in respect of the goods at issue.
57 Thirdly, as regards the infringement of Article 95(1) of Regulation 2017/1001, relating to the examination of the facts by EUIPO of its own motion, the applicant merely cites that provision and does not state how it was infringed by the Board of Appeal.
58 In that regard, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of Article 53 thereof, and Article 177(1)(d) of the Rules of Procedure of the General Court, the application must contain a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (see judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 11).
59 In the present case, the applicant has not explained in its application how the Board of Appeal infringed Article 95(1) of Regulation 2017/1001, and merely cited that provision in the statement of its pleas in law. That argument must therefore be rejected as inadmissible.
60 Accordingly, the second plea must be rejected in its entirety.
The first plea, alleging an error of assessment with regard to Article 51(1)(a) and Article 15(1) of Regulation No 207/2009
61 The applicant puts forward, in essence, three complaints in support of the plea alleging an error of assessment with regard to Article 51(1)(a) and Article 15(1) of Regulation No 207/2009. The first concerns the relevance of certain evidence, the second concerns the use of the contested sign as a mark, and the third concerns the use of the contested mark in a form differing in elements which alter its distinctive character.
– The first complaint, alleging that certain evidence is unreliable
62 The applicant complains that the Board of Appeal based its assessment on unreliable evidence, namely the Andema certificate, which cannot be regarded as objective evidence, in so far as the President of that association is, according to the applicant, the proprietor of the intervener’s trade mark.
63 The Board of Appeal found that the Andema certificate constituted objective evidence coming from a third party and having particular weight, and that, corroborated by the other evidence, it showed use of the contested sign on the market.
64 It should be noted that, in order to assess the evidential value of a document, regard should be had first and foremost to the credibility of the account it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (see, to that effect, judgment of 7 June 2005, Lidl Stiftung v OHIM – REWE-Zentral (Salvita), T‑303/03, EU:T:2005:200, paragraph 42).
65 In the present case, it should be recalled that Andema is an independent association. It is apparent from the file relating to the proceedings before EUIPO that Andema’s articles of association state, in Article 25, that the President has a merely representative and administrative role, with no involvement in the issuance of certificates. The certificates issued are to be signed by the Director-General of the association, not by the President. Accordingly, it must be held that, taking account of the person from whom it originated and how it came into being, the certificate issued by Andema appears to be reliable and to have evidential value.
66 Furthermore, it is apparent from the contested decision that the Board of Appeal did not base its reasoning solely on the Andema certificate, but on all the evidence submitted by the intervener.
67 Accordingly, the applicant’s argument must be rejected and it must be held that the Board of Appeal made no error of assessment in taking account of the certificate issued by Andema.
– The second complaint, alleging an error of assessment regarding the use of the contested sign as a trade mark
68 The applicant claims that the Board of Appeal erred in finding that the intervener used the contested sign as a trade mark. In that regard, it submits that the relevant public cannot perceive such a simple sign as a trade mark and will identify the origin of the items of jewellery by the trade name which is indicated on labels or packaging, not by the shape of the goods. According to the applicant, the evidence submitted by the intervener shows that the sign is not used to determine the origin of the goods, but solely as a design or decorative element.
69 EUIPO and the intervener dispute the applicant’s arguments.
70 The Court recalls that under Article 51(1)(a) of Regulation No 207/2009, the rights of the proprietor of the EU trade mark are to be declared to be revoked on application to EUIPO 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 in respect of which it is registered, and there are no proper reasons for non-use. However, that article provides that no person may claim that the proprietor’s rights in a trade mark should be revoked where, during the interval between expiry of that period and filing of the application, genuine use of the trade mark has been started or resumed.
71 According to Article 51(2) of Regulation No 207/2009, 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.
72 In that respect, as regards Article 15(1) of Regulation No 207/2009, it is settled case-law that there is ‘genuine use’, within the meaning of that provision, of a trade mark 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 (see judgment of 8 June 2017, W. F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 37 and the case-law cited; judgment of 7 June 2018, Schmid v EUIPO – Landeskammer für Land- und Forstwirtschaft in Steiermark (Steirisches Kürbiskernöl), T‑72/17, EU:T:2018:335, paragraph 42; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
73 However, the fact that a mark is used in order to create or preserve an outlet for the goods or services for which it is registered and not for the sole purpose of preserving the rights conferred by the mark is not sufficient reason to conclude that there is a ‘genuine use’ within the meaning of Article 15(1) of Regulation No 207/2009. It is equally indispensable that the mark be used in accordance with its essential function (judgments of 8 June 2017, W. F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraphs 39 and 40, and of 7 June 2018, Steirisches Kürbiskernöl, T‑72/17, EU:T:2018:335, paragraph 43).
74 As regards individual marks, the essential function is to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him or her, without any possibility of confusion, to distinguish the goods or services from others which have another origin. For the trade mark to be able to fulfil its essential role in the system of undistorted competition which the Treaty seeks to establish and maintain, it must offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality (see judgment of 8 June 2017, W. F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 41 and the case-law cited; judgment of 7 June 2018, Steirisches Kürbiskernöl, T‑72/17, EU:T:2018:335, paragraph 44).
75 The requirement, when applying Article 15(1) of Regulation No 207/2009, of use in accordance with the essential function of indicating origin reflects the fact that, while a mark may, admittedly, also be used to fulfil other functions, such as that of guaranteeing the quality of that product or service or that of communication, investment or advertising, it is nevertheless subject to the sanctions provided for in that regulation where it has not been used in accordance with its essential function for an uninterrupted period of five years. In that case, the rights of the proprietor of the mark are declared to be revoked, in accordance with the rules laid down in Article 51(1)(a) of Regulation No 207/2009, unless he or she is able to invoke proper reasons for failing to make use of the mark in a way that enables it to fulfil its essential function (see judgment of 8 June 2017, W. F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 42 and the case-law cited; judgment of 7 June 2018, Steirisches Kürbiskernöl, T‑72/17, EU:T:2018:335, paragraph 45).
76 It is in the light of the principles set out above that the Court must examine the applicant’s arguments relating to the question whether the use of the mark may be regarded as being in accordance with its essential function.
77 In the first place, the applicant disputes, in essence, the validity of the contested mark. In particular, it argues that the contested sign is too simple to constitute a trade mark and that the consumer will not be able to recognise the trade mark solely on the basis of the shape of the items of jewellery or where that trade mark is affixed in various shapes or colours or to textile articles.
78 In that regard, the Board of Appeal found that the validity of the trade mark could not be called into question in revocation proceedings and that it enjoyed a presumption of validity.
79 It is necessary to acknowledge a certain degree of distinctiveness of an earlier registered mark. It follows that the earlier trade mark cannot be found to be generic, descriptive or devoid of any distinctive character, without calling into question its validity in revocation proceedings (see, to that effect, judgments of 24 May 2012, Formula One Licensing v OHIM, C‑196/11 P, EU:C:2012:314, paragraphs 47, 51 and 52, and of 13 September 2016, hyphen v EUIPO – Skylotec (Representation of a polygon), T‑146/15, EU:T:2016:469, paragraph 43). Thus, even if the contested mark had to be considered devoid of a high degree of distinctive character, a minimum of distinctive character should nevertheless be acknowledged for it, by virtue of its having been registered (judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 44).
80 In the second place, the applicant claims that the contested sign, in the form of certain items of jewellery or appearing on printed fabrics, does not constitute an indication of the commercial origin of the goods. Thus, the various designs of items of jewellery are, according to the applicant, identified only when the trade mark is associated with the word sign TOUS.
81 The Board of Appeal noted, in paragraph 81 of the contested decision, that the sign at issue was affixed to some of the contested goods in a clearly visible manner and in such a way as to indicate to consumers the producer of those goods. The Board of Appeal also found that the trade mark had been used publicly on the market, which, according to the Board of Appeal, was corroborated by the Andema certificate, by the further affidavits of certain employees and representatives of different stores which marketed the intervener’s goods, and by catalogues, invoices and social media presence.
82 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 the goods or services at issue, the characteristics of the market and the scale and frequency of use of the mark. The fact that a mark that is not used for goods newly available on the market but for goods that were sold in the past does not mean that its use is not genuine, if the proprietor makes actual use of the same mark for component parts that are integral to the make-up or structure of such goods, or for goods or services directly connected with the goods previously sold and intended to meet the needs of customers of those goods (see, to that effect and by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
83 The applicant submits that the contested mark often appears together with the word element ‘tous’, which is the element that makes it possible to recognise the trade mark and the commercial origin of the goods at issue, and that the outline of the bear is perceived solely as a decorative element. However, it has already been held that the joint use of a figurative element and a word element on the same textile or clothing item does not undermine the identification function of the contested mark; it is not unusual in the clothing sector to juxtapose a figurative element with a word element linked to the designer or manufacturer, without the figurative element losing its autonomous identification function in the overall impression (judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 58).
84 While it is true that the contested sign appears alongside the intervener’s trade name TOUS, that does not preclude it from also being used on its own or from serving to identify the commercial origin of the goods accepted by the Board of Appeal. It has already been held that the fact that the relevant public perceives a trade mark by referring to another trade mark which designates the same goods and is used in conjunction with the first trade mark does not mean that the first trade mark is not used as a means of identification in itself (see, to that effect, judgments of 15 December 2016, Mondelez UK Holdings & Services v EUIPO – Société des produits Nestlé (Shape of a chocolate bar), T‑112/13, not published, EU:T:2016:735, paragraph 99, and of 28 February 2019, Lotte v EUIPO – Générale Biscuit-Glico France (PEPERO original), T‑459/18, not published, EU:T:2019:119, paragraph 74).
85 In the present case, it must be held that, even though the word mark TOUS is used together with the contested figurative sign in various forms of advertising, that does not prevent the consumer from recognising and identifying the goods concerned solely by means of the contested sign. Furthermore, it follows from the evidence accepted by the Board of Appeal that the contested sign is used consistently, not only in advertising campaigns, but also in so far as it is printed on its own on various textile articles such as scarves, umbrellas or bags, and that it is therefore capable on its own of identifying the commercial origin of the goods.
86 Consequently, the applicant’s argument that the relevant public can recognise the intervener’s goods only where the contested sign is used together with the trade name TOUS must be rejected.
87 In the third place, the applicant submits that the average consumer perceives the contested sign only as a decorative element and that, consequently, such a consumer cannot infer the commercial origin from a shape which coincides with the shape of jewellery or which is printed on fabrics.
88 In that regard, it must be held, as the Board of Appeal found, that the applicant has not substantiated its argument that the average consumer would not be able to associate the shape which evokes the outline of the bear with the contested mark when that outline is printed on fabrics or used as a three-dimensional shape for jewellery.
89 The applicant’s argument must therefore be rejected.
90 In the fourth place, the applicant submits that the contested sign is perceived as a design.
91 However, it does not explain how the contested mark would be perceived as a design within the meaning of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) and not as a trade mark.
92 The applicant’s argument must therefore be rejected.
93 In the fifth and last place, the applicant claims that the evidence submitted by the intervener does not demonstrate a clear connection between the use of the contested mark and the goods at issue.
94 In that regard, it follows from the evidence produced by the intervener during the proceedings before EUIPO that the contested sign was used in connection with the goods at issue, in particular items of jewellery and textile goods bearing that sign. The fact that it is affixed to numerous goods and that it appears on advertising materials makes it possible to establish a clear connection between the trade mark and the goods at issue.
95 The applicant’s argument must also be rejected.
96 Accordingly, it must be held that the Board of Appeal made no error of assessment in finding that the evidence produced showed that the contested mark had been used in the course of trade to designate the goods at issue.
97 In the light of the foregoing, the second complaint in the first plea must be rejected as unfounded.
– The third complaint, alleging an error of assessment regarding the use of the contested mark in a form other than that in which it was registered
98 The applicant claims that it is apparent from the evidence produced by the intervener that the signs used are not equivalent to the sign as registered and that they show significant variations in shape, colour, outline and sharpness. Therefore, it submits that the Board of Appeal erred in finding that the intervener had proved use of the trade mark.
99 EUIPO and the intervener dispute the applicant’s arguments.
100 The Board of Appeal found that, as regards the various representations of the contested mark, the contested sign remained clearly perceivable. It noted that the characteristic outline of that sign, the shape evoking the outline of a bear, would be immediately identified by the relevant consumers, irrespective of its variations in size, outline, colour or other additions. It concluded that the variations were not so strong and that the outline could still be seen.
101 According to point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered.
102 In that regard, the purpose of point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009, which avoids imposing strict conformity between the form of the trade mark used and the form in which the mark was registered, is to allow its proprietor, in the commercial exploitation of the sign, to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the sign used in trade differs from the form in which it was registered only in insignificant respects, and the two signs can therefore be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark which was registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (judgments of 10 June 2010, Atlas Transport v OHIM – Hartmann (ATLAS TRANSPORT), T‑482/08, not published, EU:T:2010:229, paragraph 30; of 21 June 2012, Fruit of the Loom v OHIM – Blueshore Management (FRUIT), T‑514/10, not published, EU:T:2012:316, paragraph 28; and of 12 March 2014, Borrajo Canelo v OHIM – Tecnoazúcar (PALMA MULATA), T‑381/12, not published, EU:T:2014:119, paragraph 26).
103 The finding of an alteration of the distinctive character of the mark as registered requires an assessment of the distinctive and dominant character of the elements added, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the different elements within the arrangement of the trade mark (judgments of 12 March 2014, PALMA MULATA, T‑381/12, not published, EU:T:2014:119, paragraph 30, and of 20 July 2017, Cafés Pont v EUIPO – Giordano Vini (Art’s Cafè), T‑309/16, not published, EU:T:2017:535, paragraph 16).
104 It is in the light of those considerations that the Court must examine whether the Board of Appeal was correct in concluding that the differences between the signs used and the contested sign as registered did not alter the distinctive character of the contested sign.
105 In the contested decision, the Board of Appeal found that the distinctiveness of the contested sign lay in the outline of a figure which could be considered as a bear but could also be seen as a fanciful figure, and that the irregular upper part attracted the attention of consumers.
106 In the first place, the applicant claims that the Board of Appeal made an error of assessment when analysing the distinctive character of the contested sign. The applicant submits that the contested sign is in Class 21.01.25 of the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks of 12 June 1973, as amended, and that, in accordance with that classification, that sign represents a teddy bear. The applicant therefore claims that the Board of Appeal failed to explain why it considered that the relevant public would perceive that sign as a fanciful figure.
107 The classification of a sign under the Vienna Agreement cited in paragraph 106 above cannot affect the scope of protection of a trade mark or the Board of Appeal’s assessment of the way in which the relevant public will perceive a trade mark. Classification under the Vienna Agreement is carried out exclusively for administrative purposes (see, to that effect and by analogy, judgments of 5 November 2008, Calzaturificio Frau v OHIM – Camper (Representation of a stylised arch with the surface in solid colour), T‑304/07, not published, EU:T:2008:477, paragraph 39, and of 10 November 2011, Esprit International v OHIM – Marc O’Polo International (Representation of a letter on a pocket), T‑22/10, not published, EU:T:2011:651, paragraph 92).
108 Moreover, it must be stated that the contested sign is represented by a relatively thin black outline, which may be interpreted as representing a bear, but also as a fanciful figure, and that it has no connection with the goods at issue.
109 Therefore, the Board of Appeal made no error of assessment in finding that the contested sign has an average degree of distinctive character.
110 In the second place, the applicant submits, in essence, that the contested sign as registered is extremely simple and that the smallest changes to it are significant in the eyes of consumers, who pay attention to the details.
111 The applicant relies on paragraph 72 of the judgment of 19 June 2019, adidas v EUIPO – Shoe Branding Europe (Representation of three parallel stripes) (T‑307/17, EU:T:2019:427), and submits that the Board of Appeal disregarded the case-law which establishes that, where a trade mark is extremely simple, even minor alterations to that mark may constitute significant changes, so that the amended form may not be regarded as broadly equivalent to the mark as registered.
112 It must be held, as the Board of Appeal found, that the contested sign is not as simple as the applicant claims, and that none of the changes in question in any way prevents the relevant public from perceiving the contested mark clearly.
113 Furthermore, it should be noted that the sign in the case that gave rise to the judgment of 19 June 2019, Representation of three parallel stripes (T‑307/17, EU:T:2019:427), consisted of three black parallel lines in a rectangular configuration on a white background. Since the signs are different, that judgment cannot be considered to invalidate the findings of the Board of Appeal.
114 In the third place, the applicant claims that the variations in the outline, sharpness, colour and background of the sign as used or the addition of precious stones significantly affect the distinctive character of the contested sign.
115 In the present case, as regards the variation in colour, the Court notes that the contested sign as registered does not have a colour claim and finds that the variations in that regard do not support the conclusion that the distinctive character has been altered. As regards the outline, although it appears in multiple variants, it remains sufficiently clear and distinctive to have no impact on consumer perception, to allow the contested sign to be recognised and thus to be associated with the trade mark. As regards the sharpness of the outline, the Court emphasises that that aspect cannot affect the perception of the sign, which remains visible irrespective of its sharpness. Furthermore, the addition of decorative precious stones, when the sign takes the form of certain goods, does not alter the distinctive character of the contested mark because the characteristic outline can still be seen.
116 Consequently, the various changes made to the contested sign as used, relating to its shape, colour, outline, sharpness and background, represent insignificant changes which are decorative in nature and do not alter its distinctive character. The differences between the sign as registered and the sign as used on the goods concerned are not such as to lead the relevant public to fail to recognise the contested mark.
117 As regards the use of the contested sign in a three-dimensional shape, the applicant submits that the consumer would not be able to identify the commercial origin of the goods from their shape.
118 The Board of Appeal found that the three-dimensional representation of the contested sign for jewellery had no impact on the distinctiveness of that sign.
119 In that regard, average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish distinctive character in relation to a three-dimensional mark than in relation to a word or figurative mark (see judgments of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 30 and the case-law cited; of 20 October 2011, Freixenet v OHIM, C‑344/10 P and C‑345/10 P, EU:C:2011:680, paragraph 46 and the case-law cited; and of 7 May 2015, Voss of Norway v OHIM, C‑445/13 P, EU:C:2015:303, paragraph 90 and the case-law cited).
120 In those circumstances, the more closely the shape registered as a trade mark resembles the shape most likely to be taken by the product in question, the greater the likelihood of the registered shape being devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001) (see, to that effect, judgment of 24 September 2015, Klement v OHIM – Bullerjan (Form of an oven), T‑317/14, not published, EU:T:2015:689, paragraph 36). Only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin, is not devoid of any distinctive character for the purposes of that provision (judgment of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 31).
121 That case-law, which was developed in relation to three-dimensional trade marks consisting of the appearance of the product itself, also applies where the contested mark is a figurative mark consisting of the two-dimensional representation of that product. In such a case, the mark likewise does not consist of a sign unrelated to the appearance of the products it covers (judgments of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 29, and of 21 April 2015, Louis Vuitton Malletier v OHIM – Nanu-Nana (Representation of a brown and beige chequerboard pattern), T‑359/12, EU:T:2015:215, paragraph 24).
122 In the present case, in so far as some of the goods are capable of actually taking the shape of the contested sign, in particular items of jewellery, it must be held that that sign departs significantly from the shape most likely to be taken by the goods in respect of which it was registered, namely jewellery such as rings, pendants or earrings. Accordingly, the contested mark departs significantly from the customs of the sector. It enables the relevant public to continue to perceive the trade mark as an indication of the commercial origin of the goods at issue (see, to that effect, judgments of 28 February 2019, PEPERO original, T‑459/18, not published, EU:T:2019:119, paragraph 72, and of 23 September 2020, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle), T‑796/16, EU:T:2020:439, paragraph 147).
123 In the fourth place, the applicant claims that the Board of Appeal erred in rejecting its argument relating to the application of the Common Communication on the Common Practice of the Scope of Protection of Black and White (“B&W”) Marks of 15 April 2014. It relies on examples taken from that communication to illustrate the points it makes regarding differences that are permitted.
124 In that regard, it should be noted, as observed by EUIPO, that the examples taken from the Common Communication on the Common Practice of the Scope of Protection of Black and White (“B&W”) Marks of 15 April 2014 are used, in connection with that communication, to illustrate the concept of identity between trade marks for the purpose of assessing genuine use or when examining claims of priority or seniority. For the purpose of applying Article 15 of Regulation No 207/2009, it is not decisive whether the sign as used is identical to the sign as registered, but whether the changes to the contested sign alter the distinctive character of the trade mark.
125 Consequently, the Board of Appeal was correct in concluding that the use of the contested mark in forms that differed slightly from the registered sign did not alter its distinctive character.
The third plea, alleging infringement of Article 20 and Article 41(1) and (2)(a) and (c) of the Charter
126 By its third plea, the applicant claims that the Board of Appeal infringed its right to equal treatment and its right to be heard, and adopted the contested decision in breach of the principles of legal certainty and sound administration.
127 In the first place, the applicant complains that the Board of Appeal endorsed the findings of the Cancellation Division concerning the admissibility of the evidence produced out of time by the intervener on 21 June 2018 and that it declared inadmissible the applicant’s observations submitted on 18 December 2020. In addition, it claims that the Board of Appeal thereby infringed the right to equal treatment.
128 It is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently, but also that different situations must not be treated in the same way unless such treatment is objectively justified (judgments of 17 July 1997, National Farmers’ Union and Others, C‑354/95, EU:C:1997:379, paragraph 61, and of 16 September 2004, Merida, C‑400/02, EU:C:2004:537, paragraph 22).
129 In the present case, a distinction must be drawn between the situation in which EUIPO accepted the additional evidence produced out of time by the intervener and that in which it refused to accept the observations submitted out of time by the applicant.
130 As regards the evidence produced out of time by the intervener on 21 June 2018, it should be noted that that evidence was produced in order to supplement the evidence initially submitted by the intervener and to respond to the applicant’s observations in that regard, as stated in paragraph 33 above.
131 That situation cannot be compared with that of the applicant, which, after being informed of the closure of the written procedure on 30 November 2020, and without requesting a second round of pleadings, submitted written observations on 18 December 2020.
132 In that regard, the fact that the applicant’s observations of 18 December 2020 were placed on the file does not guarantee that they are admissible. Those two situations arose at different stages of the proceedings and cannot be compared.
133 Accordingly, the part of the applicant’s third plea alleging that the principle of equal treatment was breached must be rejected.
134 In the second place, the Court observes that, in its application, the applicant confines itself to alleging infringement of the right to be heard when it lists the pleas relied on in support of the action, without explaining how that right was infringed.
135 As regards the breach of the principles of legal certainty and sound administration, the applicant does not explain how the Board of Appeal’s assessments would undermine them, since the applicant again confines itself to alleging that those principles were breached.
136 It must be recalled that, under Article 76(d) of the Rules of Procedure, the application must contain a summary of the pleas in law relied on, and that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (see judgment of 18 September 2012, Scandic Distilleries v OHIM – Bürgerbräu, Röhm & Söhne (BÜRGER), T‑460/11, not published, EU:T:2012:432, paragraph 16 and the case-law cited).
137 Accordingly, as regards the parts of the third plea alleging infringement of the right to be heard and breach of the principles of sound administration and legal certainty guaranteed by the Charter, it must be held that the applicant confines itself to referring to those rights and principles without specifying how they were infringed or breached by the Board of Appeal. They must therefore be rejected as inadmissible.
138 In the light of the foregoing, the third plea must be rejected and, consequently, the action must be dismissed in its entirety, without it being necessary to rule on the admissibility of the applicant’s request for the case to be referred back to EUIPO.
Costs
139 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
140 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred in the present proceedings, in accordance with the forms of order sought by EUIPO and the intervener.
141 The intervener has also contended that the applicant should be ordered to pay the costs incurred by the intervener in the proceedings before EUIPO. In that regard, it is sufficient to note that, since this judgment dismisses the action brought against the contested decision, point 2 of the operative part of that decision, read in the light of paragraph 109 of the grounds of that decision, continues to govern the costs incurred in the course of the proceedings before the Cancellation Division and in the appeal proceedings before EUIPO (see, to that effect, judgment of 19 October 2017, Aldi v EUIPO – Sky (SKYLITe), T‑736/15, not published, EU:T:2017:729, paragraph 131).
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Apart sp. z o.o. to pay the costs.
Delivered in open court in Luxembourg on 26 July 2023.