JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
21 November 2013 (*)
(Community trade mark – Revocation proceedings – Community word mark RECARO – Genuine use of the mark – Article 15(15)( a) of Regulation (EC) No 207/2009 – Nature of the use of the mark – Admissibility of new evidence – Article 76(2) of Regulation No 207/2009 – Obligation to state reasons – Article 75 of Regulation No 207/2009)
In Case T‑524/12,
Recaro Holding GmbH, formerly Recaro Beteiligungs-GmbH, established in Stuttgart (Germany), represented by J. Weiser, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by J. Crespo Carrillo, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being,
Certino Mode SL, established in Elche (Spain),
ACTION brought against the decision of the First Board of Appeal of OHIM of 6 September 2012 (Case R 1761/2011-1) relating to revocation proceedings between Recaro Beteiligungs-GmbH and Certino Mode SL,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 3 December 2012,
having regard to the response lodged at the Registry on 27 March 2013,
in the absence of a request to fix a hearing submitted by the parties within a period of one month from notification of closure of the written procedure, and having therefore decided, upon a report of the Judge-Rapporteur and pursuant to Article 135a of the Rules of Procedure of the General Court, to rule without an oral procedure,
gives the following
Judgment
1 On 25 June 1999, Certino Mode SL (‘the proprietor of the Community mark’) obtained from the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) registration of the word mark RECARO on the basis of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)). That mark was registered under number 73434.
2 The goods in respect of which registration was sought fall within Classes 10 and 25 of the Nice Agreement of 15 June 1957 on the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 10: Orthopaedic footwear;
– Class 25: Footwear (except orthopaedic).
3 On 16 September 2009, the applicant, Recaro Beteiligungs-GmbH, filed an application for revocation of the mark at issue pursuant to Article 51(1)(a) of Regulation No 207/2009. In that application, the applicant argued that the mark at issue had not been put to genuine use.
4 On 22 January 2010, 21 June 2010 and 10 January 2011, the proprietor of the Community mark provided evidence in order to establish proof of genuine use of the mark at issue. The applicant submitted observations on the evidence adduced by the proprietor of the Community mark on 30 March and 8 November 2010.
5 By decision of 29 June 2011, the Cancellation Division adopted a decision by which it held that the mark at issue had not been put to genuine use and revoked the mark at issue in its entirety.
6 On 25 August 2011, the proprietor of the Community mark filed an appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Cancellation Division. The proprietor of the Community mark insisted that there had been genuine use of the mark at issue and provided additional evidence.
7 By decision of 6 September 2012 (‘the contested decision’), the First Board of Appeal upheld the action in part, upholding the validity of the registration of the mark at issue for ‘footwear (except orthopaedic)’ in Class 25 and dismissing the action with respect to ‘orthopaedic footwear’ in Class 10.
8 In the contested decision, the Board of Appeal found, first of all, that the evidence adduced for the first time before it by the proprietor of the Community mark was admissible on the basis of Article 76(2) of Regulation No 207/2009 and in reference to Rule 50(1) 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).
9 Next, the Board of Appeal observed that the fact that the proprietor of the Community mark is an intermediary who is involved at the initial stage of production and distribution did not per se preclude proof being made out of genuine use of the mark at issue.
10 Lastly, the Board of Appeal found that the orders received from two purchasers and the orders sent to a footwear manufacturer established clear use of the mark at issue for footwear in significant quantities throughout the relevant period. Other evidence, such as the presence of the proprietor of the Community mark at trade fairs and an article about its products, were also held by the Board of Appeal to establish use of the mark at issue. However, the Board of Appeal, like the Cancellation Division, held that the evidence was insufficient to establish use of the mark in question for ‘orthopaedic footwear’.
Forms of order sought by the parties
11 The applicant claims that the Court should:
– alter the contested decision so that its application for revocation is upheld in its entirety;
– in the alternative, annul the contested decision in so far as it allows registration of the mark at issue for ‘footwear’ in Class 25;
– order OHIM to pay the costs of the proceedings before the Court and Board of Appeal.
12 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
13 The applicant puts forward three pleas in law in support of its action: (i) infringement of Article 51(1)(a) of Regulation No 207/2009, read in conjunction with Article 15 thereof, in that the Board of Appeal was incorrect in finding that there had been genuine use of the mark at issue for ‘footwear’ in Class 25; (ii) infringement of Article 76(2) of Regulation No 207/2009, read in conjunction with Rule 50(1) of Regulation No 2868/95 in that the Board of Appeal was incorrect in basing itself on those provisions to allow the evidence adduced for the first time before it; (iii) infringement of Article 75(1) of Regulation No 207/2009, in that the Board of Appeal, in failing to rule on the relevance of the evidence adduced out of time, did not comply with its obligation to state reasons.
The first plea: infringement of Article 51(1)(a) of Regulation No 207/2009, read in conjunction with Article 15 thereof – genuine use of the mark at issue
14 In support of its first plea the applicant submits, in essence, five complaints concerning: (i) the lack of proof of outward use aimed at end consumers; (ii) use of the mark at issue as a mark in connection with the goods for which it was registered; (iii) use of the mark at issue in its registered form; (iv) the quantitative extent of the use; and (v) the lack of probative value of the evidence adduced by the proprietor of the Community mark for the first time at the stage of the proceedings before the Board of Appeal.
15 The Court will examine those five pleas in the light of the following rules and principles.
16 Article 51(1)(a) of Regulation No 207/2009 provides:
‘The rights of the proprietor of the Community trade mark shall be declared to be revoked on application to [OHIM] or on the basis of a counterclaim in infringement proceedings:
(a) if, within a continuous period of five years, the trade mark has not been put to genuine use in the [European Union] in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use; …’
17 According to Article 15(1)(a) 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.
18 Under Rule 22(2) of Regulation No 2868/95, which applies mutatis mutandis to revocation proceedings pursuant to Rule 40(5) thereof, evidence of use must concern the place, time, extent and nature of use of the trade mark (Case T‑203/02 Sunrider v OHIM – Espadafor Caba (VITAFRUIT) [2004] ECR II‑2811, paragraph 37, and judgment of 10 September 2008 in Case T‑325/06 Boston Scientific v OHIM – Terumo (CAPIO), not published in the ECR, paragraph 27).
19 According to the case-law, there is genuine use 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 (Case C‑40/01 Ansul [2003] ECR I‑2439, paragraph 43).
20 To examine whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa (VITAFRUIT, paragraph 42, and Case T‑334/01 MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON) [2004] ECR II‑2787, paragraph 36).
21 Genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market (Case T‑39/01 Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT) [2002] ECR II‑5233, paragraph 47, and Case T‑356/02 Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT) [2004] ECR II‑3445, paragraph 28).
– Lack of evidence of outward use aimed at end consumers
22 The applicant submits, in essence, that the evidence adduced by the proprietor of the Community mark does not establish genuine use of the mark at issue, as that evidence does not relate to sales to end consumers. The orders and invoices adduced by the proprietor of the Community mark are addressed to third parties, but do not prove that they distributed the goods in question under the RECARO trade mark to end consumers. The same is true of the other evidence adduced by the proprietor of the Community mark, including an article published on the internet. As the proprietor of the Community mark has not provided any evidence such as advertising material or an invoice made out in the name of any end consumers showing that the goods in question were actually distributed under the mark at issue to end consumers, the Board of Appeal’s findings are purely speculative.
23 OHIM disputes the applicant’s arguments.
24 The applicant rightly observes that genuine use of a mark requires that it be used publicly and outwardly (VITAFRUIT, paragraph 39; see also, to that effect, Ansul, paragraph 37). It is also correct that, when assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances which are relevant in establishing whether the commercial exploitation of the mark is real, and in particular whether such use is seen as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market, and the scale and frequency of use of the mark (see VITAFRUIT, paragraph 40 and the case-law cited).
25 OHIM is correct in pointing out, however, that that outward use does not necessarily mean that it is use aimed at end consumers. Genuine use of the mark relates to the market on which the proprietor of the Community mark pursues its commercial activities and on which it hopes to put its mark to use. The line of reasoning advocated by the applicant is based on the incorrect assumption that marks used only in inter-corporate relations cannot enjoy the protection of Regulation No 207/2009. It should be noted in that regard that the relevant public to which marks are addressed do not comprise only end consumers, but also specialists, industrial clients and other professional users (Case T‑211/03 Faber Chimica v OHIM – Industrias Quimicas Naber (Faber) [2005] ECR II‑1297, paragraph 24).
26 In the present case, it is common ground that the proprietor of the Community mark is active as an intermediary and that its activity consists in identifying professional purchasers, such as the distribution companies BR and BE, to which it sells footwear that it has had manufactured by producers such as the companies EC and AN. Nor is it disputed that those distribution and production companies are not part of the same group as the proprietor of the Community mark. Supposing that the mark at issue was actually used in commercial transactions with those companies, a point which will be examined under the subsequent pleas, the sales by the proprietor of the Community mark are such as to establish public and outward use of the mark at issue (see, to that effect, VITAFRUIT, paragraph 50, and judgment of 17 February 2011 in Case T‑324/09 J & F Participações v OHIM – Plusfood Wrexham (Friboi), not published in the ECR, paragraphs 30 to 33). In those circumstances, the fact that the proprietor of the Community mark did not engage directly with end consumers and its presence at trade fairs was limited to trade fairs aimed at industry professionals, such as those organised by Expo Riva Shuh in 2006 and 2008, is of no import.
27 In any event, it should also be observed that in 2009 the proprietor of the mark at issue concluded a licensing contract allowing EC to manufacture, market and sell in Spain a series of goods under the RECARO trade mark. Clauses 3 and 10 of that contract, which the proprietor of the Community mark had produced before the Cancellation Division, impose a number of obligations on EC with respect to advertising, promotion and marketing through a distribution network. It follows that the mark at issue is also intended for sales to end consumers, contrary to the applicant’s contentions.
28 The first plea in law must therefore be dismissed as unfounded.
– Use of the mark at issue as a mark and in connection with the goods for which it was registered
29 Relying on the decision of the Cancellation Division of 29 June 2011, the applicant submits that there is no evidence that the mark at issue was actually used as a mark or that it was associated with an identified good on the market, in particular for the goods covered by the registration of the mark at issue. The Board of Appeal engaged in speculation in finding that some orders and invoices and an article published on the internet concerning the goods of the proprietor of the Community mark showed that the mark at issue was used for ‘footwear’ in Class 25 and not for goods in other classes, such as protective footwear or socks, the sizes of which correspond to the sizes of the footwear and which are also sold in pairs. The Board of Appeal distorted inter alia statements made by Mr G., a sales director, referred to in that article.
30 OHIM disputes the arguments put forward by the applicant.
31 It should be borne in mind in that regard that the question whether a trade mark has been put to genuine use requires that an overall assessment be carried out, taking into account all the relevant factors (see, to that effect, VITAFRUIT, paragraphs 40 and 42 and the case-law cited). Thus each piece of evidence is not to be analysed separately, but rather together, in order to determine the most likely and coherent meaning.
32 In the present case, none of the evidence analysed by the Board of Appeal supports the applicant’s contention that the goods in question are socks or protective footwear. The only aspect that might point in the direction suggested by the applicant concerns an allusion to footwear or an orthopaedic slipper in the order confirmations from BR for pairs of footwear designated by the reference ‘Reca J Orthomuil’.
33 The rest of the body of evidence analysed by the Board of Appeal, however, points to the use of the mark at issue being for ‘footwear’ in Class 25.
34 First of all, although it is true that the purchase orders issued by BE do not state explicitly that the items ordered under the RECARO trade mark are footwear, the fact remains that those order confirmations specify, among other things, the number of pairs, colours (such as ‘moca’, ‘camel’ or ‘black’), sizes, prices and types of sole. The same is true of the order confirmations issued by BR, which also specify the type of article (Bottein or Orthomuil), colours (such as ‘black’, ‘brown’, navy’), sizes, prices and number of pairs. Moreover, the specifications contained in the order confirmations from BE and BR correspond to those in the orders sent by the proprietor of the Community mark to the manufacturers EC and AN and which refer explicitly to the RECARO trade mark. The same is true of the invoices sent by EC to the proprietor of the Community mark.
35 Secondly, according to the first two recitals, the licensing contract concluded between the proprietor of the Community mark and EC in 2009 concerns the manufacture, distribution and sale of a series of footwear products (calzado) in Spain under the RECARO trade mark.
36 Thirdly, contrary to the applicant’s contentions, the statements made by the sales director of the proprietor of the Community mark, Mr G., referred to in an article published on the internet, confirm that the commercial relations which the proprietor of the Community mark had with its partners covered footwear sold under the RECARO trade mark. He states not only that the proprietor of the Community mark is involved in leisure footwear under the RECARO trade mark, but adds that rubber-soled sandals are the highest-selling model.
37 Fourthly, pictures taken from magazines, catalogues and leaflets, referred to by the Cancellation Division in its decision, show the use of the RECARO trade mark on a number of models of footwear. Even though some of the pictures are not dated or predate the relevant period and even though their commercial context is not clear, they nevertheless provide additional evidence supporting the other evidence referred to above (see, to that effect, judgment of 29 February 2012 in Joined Cases T‑77/10 and T‑78/10 Certmedica International and Lehning entreprise v OHIM – Lehning entreprise and Certmedica International (L112), paragraphs 57 and 58).
38 It follows that the Board of Appeal made no error of assessment in finding that the evidence adduced by the proprietor of the Community mark establishes, first, use of the mark at issue as a trade mark in the context of commercial transactions and, secondly, use of the mark at issue for ‘footwear’ in Class 25. Accordingly, the applicant’s second complaint must be rejected as unfounded.
– Use of the mark at issue in its registered form
39 The applicant submits that the proprietor of the Community mark has not established proof of use of the mark at issue with goods sold on the market in its registered form. The applicant observes in that regard that no photographs or advertising of footwear have been produced showing the form in which the mark has been used. Nor can the use of the term ‘reca’ in the order confirmations from BR be considered use of the RECARO trade mark in its registered form. The applicant takes the view that the terms ‘reca’ and ‘recaro’ have a different distinctive character.
40 OHIM disputes the applicant’s arguments.
41 Article 15(1) of Regulation No 207/2009 provides that the mark must be used in a manner that does not alter the distinctive character of the mark as registered. Genuine use requires that the mark be used as registered (Ansul, paragraph 37 and VITAFRUIT, paragraph 39). Use must not alter the distinctive character of the registered mark (Case T‑156/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO AIRE) [2003] ECR II‑2789, paragraph 44).
42 In the present case it is clear, first, that the mark at issue is a word mark. OHIM observes, correctly, that the specific presentation of such a mark in terms of fonts or colours is therefore, in principle, of minimal importance. The specific representation of a word mark is not generally of such a nature as to alter the distinctive character of that mark as registered.
43 Next, it is clear that the applicant is not arguing that the proprietor of the Community mark presented the mark at issue in a manner which would alter its distinctive character, but rather that there is no proof of use of it as registered. There is, however, nothing to indicate or any reason to suppose that the proprietor of the Community mark generally presented the mark at issue in a manner which would alter its distinctive character. On the contrary, apart from the order confirmations from BR, the other evidence produced by the proprietor of the Community mark refers specifically to the mark at issue in a neutral manner, without graphic representation or additional elements. Furthermore, the pictures taken from magazines, catalogues and leaflets show use of the RECARO trade mark on a number of models of footwear in a manner which does not alter its distinctive character. As held in paragraph 37 above, although the probative value of those pictures is admittedly limited, they nevertheless provide additional evidence supporting the other evidence.
44 Lastly, regarding the order confirmations from BR, the Board of Appeal was correct in concluding that the use of the term ‘reca’ in those orders was merely an abbreviation of the term ‘recaro’, given that the corresponding orders sent by the proprietor of the Community mark to the manufacturers for the production of the footwear in question refer to the RECARO trade mark (see paragraph 34 above). The same is true of the invoices from those companies to the proprietor of the Community mark.
45 In those circumstances, the third head of complaint must be rejected as unfounded.
– Extent of use
46 The applicant submits that the evidence adduced by the proprietor of the Community mark does not establish the extent of the use of the mark at issue. In the applicant’s submission, the proprietor of the Community mark ought to have specified the volume or turnover from sales to end consumers.
47 OHIM disputes the applicant’s arguments.
48 It should be borne in mind in that regard the applicant’s argument that only sales to end consumers are relevant for establishing genuine use of a mark was rejected above (see paragraph 28 above). Accordingly, nor can a proprietor of a Community mark be required to demonstrate that the extent of that use refers only to those types of sales.
49 Next, it should be observed that the proprietor of the Community mark provided numerous order confirmations relating to its activities as an intermediary. Those documents refer to thousands of pairs of footwear and transactions involving several hundreds of thousands of euro.
50 The applicant’s fourth plea in law is thus lacking any basis and must be dismissed as unfounded.
– Evidence adduced at the appeal stage
51 The applicant submits that the evidence provided by the proprietor of the Community mark during the proceedings before the Board of Appeal have no probative value and are therefore insufficient to establish genuine use of the mark at issue.
52 OHIM disputes that line of argument.
53 In order to assess genuine use of the mark at issue, the Board of Appeal based the contested decision on a body of evidence which, according to paragraph 19 of the contested decision, included both documents produced previously before the Cancellation Division and additional documents. It is, moreover, clear from paragraphs 20 to 28 of the contested decision that the Board of Appeal attached particular importance to the documents listed in paragraph 19. The documents produced for the first time at the appeal stage before it are not included in that list.
54 Since the applicant failed to demonstrate, in its first four pleas in law, that the Board of Appeal’s analysis in relation to genuine use of the mark at issue, based as it was on the documents listed in paragraph 19 of the contested decision, was incorrect, this plea cannot in any event lead to annulment of the contested decision.
55 It follows that the applicant’s fifth plea in law must be rejected as ineffective.
56 The first plea must therefore be rejected in its entirety.
Second plea in law: infringement of Article 76(2) of Regulation No 207/2009, read in conjunction with Rule 50(1) of Regulation No 2868/95
57 The applicant submits that the Board of Appeal should not have taken account of the evidence adduced by the proprietor of the Community mark for the first time at the appeal stage. The Board of Appeal should not have relied on Article 76(2) of Regulation No 207/2009, read in conjunction with Rule 50(1) of Regulation No 2868/95, in allowing that evidence. In the applicant’s submission, that rule applies only to opposition proceedings. It is not applicable to annulment proceedings based on a lack of genuine use of a mark.
58 OHIM disputes the applicant’s arguments.
59 Under Article 76(2) of Regulation No 207/2009, OHIM may decide to disregard facts that the parties did not adduce in due time. The Board of Appeal therefore has a certain margin of discretion to allow or disallow facts and evidence produced late, although it must give reasons for its decision on that point (see, to that effect, Case C‑29/05 P OHIM v Kaul [2007] ECR I‑2213, paragraphs 42 and 43; judgment of 22 September 2011 in Case T‑250/09 Cesea Group v OHIM – Mangini & C. (Mangiami), not published in the ECR, paragraph 18; and judgment of 23 November 2011 in Case T‑59/10 Geemarc Telecom v OHIM – Audioline (AMPLIDECT), not published in the ECR, paragraphs 14 and 15).
60 Article 76 of Regulation No 207/2009 applies to all types of proceedings before the Office and does not draw any distinction between opposition proceedings and revocation or invalidity proceedings.
61 As regards Rule 50(1) of Regulation No 2868/95, it should be observed, first, that it is an implementing rule from the Commission which cannot depart from the basic Council regulation, namely Regulation No 207/2009, including Article 76 thereof.
62 Next, it is clear that, contrary to the applicant’s submissions, the scope of Rule 50(1) is in no way limited to opposition proceedings. The first sentence of that rule provides, in general terms and without specifying the type of proceedings in question, that, unless otherwise provided, the Board of Appeal may apply the same procedural provisions as those relating to proceedings before the department which has made the decision against which the appeal is brought. The next two sentences specify in greater detail the time limits applicable to opposition proceedings, but do not make any provision as to time limits applicable to other types of proceedings.
63 It follows that Rule 50(1) of Regulation No 2868/95 has no bearing on the margin of discretion the Board of Appeal has under Article 76(2) of Regulation No 207/2009.
64 Lastly, there is no public interest justifying a limitation of that margin of discretion to opposition proceedings. On the contrary, it is in the interest of the proper administration of justice that the Board of Appeal may make a fully informed decision when ruling on revocation or invalidity proceedings for the purposes of Section 5 of Title VI of Regulation No 207/2009, especially since those proceedings also apply in cases involving absolute grounds for invalidity as referred to in Articles 7 and 52 of that regulation and include the aspect of public interest.
65 Accordingly, contrary to the arguments put forward by the applicant, the Board of Appeal was correct to base itself on Article 76(2) of Regulation No 207/2009 and Rule 50(1) of Regulation No 2868/95 in allowing the presentation of evidence which had not been adduced before the Cancellation Division.
66 Moreover, the Board of Appeal, in availing itself of its margin of discretion under Article 76(2) of Regulation No 207/2009, provided a correct statement of reasons, in paragraph 15 of the contested decision, for its decision to take account of the additional evidence put forward at the appeal stage, as it took the view that that evidence was complementary to the evidence adduced previously and therefore relevant for the outcome of the dispute.
67 The second plea must therefore be dismissed as unfounded.
The third plea in law: infringement of Article 75(1) of Regulation No 207/2009
68 The applicant submits that the Board of Appeal infringed its obligation to state reasons, provided for by Article 75(1) of Regulation No 207/2009, in failing to state how it had determined the probative value of the evidence adduced by the proprietor of the Community mark for the first time at the appeal stage.
69 OHIM disputes the applicant’s arguments.
70 It should be borne in mind that the obligation to state reasons laid down in Article 75 of Regulation No 207/2009 has the same scope as that under Article 296 TFEU (see, to that effect, Case C‑447/02 P KWS Saat v OHIM [2004] ECR I‑10107, paragraph 64, and order of 9 December 2008 in Case C‑20/08 P Enercon v OHIM, not published in the ECR, paragraph 29). It is settled case-law that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (KWS Saat v OHIM, paragraph 65). It is sufficient if the Board of Appeal sets out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 29 September 2011 in Case T‑415/09 New Yorker SHK Jeans v OHIM – Vallis K. – Vallis A. (FISHBONE), not published in the ECR, paragraph 40 and the case-law cited).
71 Regarding the statement of reasons in the contested decision at issue here, it is clear from paragraph 19 of the contested decision that the Board of Appeal based its analysis on all of the documents available to it. The Board of Appeal thus conducted an overall assessment, as required by the case-law referred to in paragraph 20 above. Paragraphs 20 to 28 of the contested decision provide a summarised but clear statement of the reasons and factual circumstances which the Board of Appeal endorsed in reaching its decision. In so doing, it was not required to explain the probative value of each element of the body of evidence on which it based its decision, as is apparent from the case-law referred to in paragraph 70 above. It should also be observed that that statement of reasons enabled the applicant to understand the contested decision and to bring an action contesting the basis of that decision, including the evidence adduced in the proceedings before the Board of Appeal, as indicated by the fifth complaint under the first plea in law. This Court has also been able to exercise its power of review.
72 The third plea must therefore be rejected as unfounded.
73 Since none of the pleas in law put forward by the applicant in support of its application, either for the annulment or the alteration of the contested decision, are well founded, the action must be dismissed in its entirety.
Costs
74 Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
75 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Recaro Holding GmbH to pay the costs.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 21 November 2013.
[Signatures]