JUDGMENT OF THE GENERAL COURT (Third Chamber)
7 July 2021 (*)
(EU trade mark – Revocation proceedings – EU word mark I-cosmetics – Genuine use of the mark – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001))
In Case T‑205/20,
Angela Frommer, residing in Unterschleißheim (Germany), represented by F. Remmertz, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas 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
Minerva GmbH, established in Munich (Germany), represented by R. Dissmann, lawyer,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 10 February 2020 (Case R 675/2019‑2), relating to revocation proceedings between Minerva and Ms Frommer,
THE GENERAL COURT (Third Chamber),
composed of A.M. Collins, President, Z. Csehi (Rapporteur) and G. Steinfatt, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the application lodged at the Court Registry on 16 April 2020,
having regard to the response of EUIPO lodged at the Court Registry on 11 August 2020,
having regard to the response of the intervener lodged at the Court Registry on 17 August 2020,
having regard to the written questions put by the Court to the applicant and the intervener on 26 January 2021,
having regard to the observations lodged by the applicant and the intervener at the Court Registry on 9 and 12 February 2021, respectively,
further to the hearing on 15 April 2021,
gives the following
Judgment
Background to the dispute
1 On 26 January 2010, the applicant, Ms Angela Frommer, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2 Registration as a mark was sought for the word sign I-cosmetics.
3 The goods and services in respect of which registration was sought are in Classes 3, 9 and 44 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 to the following description:
– Class 3: ‘Soaps; perfumery goods; essential oils and oils for cosmetic purposes; cosmetics, skin care products, in particular skin cream; lotions for cosmetic purposes’;
– Class 9: ‘Lasers, not for medical purposes’;
– Class 44: ‘Medical services; hygienic and beauty care for human beings; cosmetic services; beauty-salon services’.
4 The trade mark application was published in the Community Trade Marks Bulletin No 129/2010 of 15 July 2010 and, on 28 October 2010, the sign at issue was registered as an EU trade mark under the number 8836661.
5 On 14 February 2017, the intervener, Minerva GmbH, filed with EUIPO an application for revocation of that mark pursuant to Article 51(1)(a) of Regulation No 207/2009 (now Article 58(1)(a) of Regulation 2017/1001).
6 On 4 September 2017, the applicant submitted items of evidence with a view to establishing use of the contested mark. Those items consisted of affidavits, website screenshots, brochures and advertising leaflets, a price list, documents showing sales figures, a letterhead and an excerpt from a judgment.
7 On 6 February 2019, the Cancellation Division upheld the application for revocation in its entirety and revoked the applicant’s rights in the contested mark, on the ground that the items of evidence submitted were insufficient to prove genuine use of that mark for the goods and services in respect of which it had been registered.
8 On 26 March 2019, the applicant filed an appeal with EUIPO pursuant to Articles 66 to 71 of Regulation 2017/1001 against the decision of the Cancellation Division.
9 By decision of 10 February 2020 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal on the ground that the items of evidence submitted did not establish genuine use of the contested mark during the relevant period for the goods and services in respect of which it had been registered.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO and the intervener to pay the costs, including those incurred before the Board of Appeal.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
12 The intervener submits that ‘the contested decision is not to be annulled’. It confirmed, in response to a written question put by the Court, that it is seeking the dismissal of the action. It must therefore be considered that the intervener contends that the action should be dismissed.
Law
Admissibility of the document submitted for the first time before the General Court
13 EUIPO contends that the list of addresses of the applicant’s clients, submitted before the Court as Annex 4 to the application, should be declared inadmissible, since it was not submitted during the administrative proceedings.
14 In that regard, it is settled case-law that the purpose of an action before the General Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001. It follows from that provision that facts not relied on by the parties before the bodies of EUIPO cannot be relied on at the stage of the action before the Court and that the Court may not re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. The legality of a decision of a Board of Appeal of EUIPO must be assessed in the light of the information available to it when it adopted that decision (see judgment of 24 October 2018, Bacardi v EUIPO – Palírna U zeleného stromu (42 BELOW), T‑435/12, EU:T:2018:715, paragraph 52 and the case-law cited).
15 In the present case, the applicant submitted, as an annex to the application, a list of her clients’ addresses. As EUIPO contends, that document was submitted for the first time before the General Court. As regards the applicant’s argument, put forward in response to a written question of the Court and seeking to establish, on the basis of the case-law, that she cannot be prevented from disputing an assessment which appeared for the first time in the contested decision by submitting new documents annexed to the application, it is sufficient to note that it was already apparent from the Cancellation Division’s decision that the evidence of use submitted by the applicant did not contain sufficient indications that the goods and services covered by the contested mark had been offered or sold to clients in the European Union. Therefore, just as she submitted before the Board of Appeal versions of the documents relating to sales figures containing the names of her clients, there was nothing to prevent the applicant from submitting the list of her clients’ addresses in the context of the proceedings before the Board of Appeal. Accordingly, in the light of the case-law referred to in paragraph 14 above, Annex 4 to the application must be declared inadmissible.
The single plea in law
16 The applicant raises a single plea in law, alleging infringement of Article 18 of Regulation 2017/1001 and of Rule 22 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1). According to the applicant, the Board of Appeal erred in finding that the items of evidence submitted did not establish genuine use of the contested mark during the relevant period.
17 As a preliminary point, it must be noted that, given the date on which the application for revocation at issue was filed, namely 14 February 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 and Regulation No 2868/95 (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).
18 The fact that the applicant has referred, in the application, to Article 18 of Regulation 2017/1001 is irrelevant for the purposes of the present proceedings, since the wording of the provision applicable in the present case, namely Article 15 of Regulation No 207/2009, is identical to that of the provision relied on by the applicant.
19 That said, it must be recalled that it follows from recital 10 of Regulation No 207/2009 that the legislature considered there to be no justification for protecting a registered trade mark except where that trade mark is actually used. In accordance with that recital, Article 51(1)(a) of Regulation No 207/2009 provides that the rights of the proprietor of an EU trade mark are to be declared to be revoked, inter alia 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 or services in respect of which it is registered, and there are no proper reasons for non-use.
20 Thus, the first subparagraph of Article 15(1) of Regulation No 207/2009 provides that, ‘if, within a period of five years following registration, the proprietor has not put the EU trade mark to genuine use in the European Union in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the EU trade mark shall be subject to the sanctions provided for in this Regulation, unless there are proper reasons for non-use’.
21 Rule 22(3) of Regulation No 2868/95, which is applicable mutatis mutandis in revocation proceedings pursuant to Rule 40(5) of that regulation, provides that the indications and evidence for the furnishing of proof of use of the trade mark are to consist of indications concerning the place, time, extent and nature of use of the trade mark for the goods and services in respect of which it is registered. In addition, in accordance with Rule 40(5) of Regulation No 2868/95, in the context of such proceedings, 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, and, if the proof is not provided within the time limit set, that trade mark is to be revoked.
22 Furthermore, 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 was 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. Moreover, the condition of genuine use of the mark requires that that mark, as protected on the relevant territory, be used publicly and outwardly (see judgment of 23 March 2017, Cryo-Save v EUIPO – MedSkin Solutions Dr. Suwelack (Cryo-Save), T‑239/15, not published, EU:T:2017:202, paragraph 29 and the case-law cited).
23 Although the concept of genuine use excludes all minimal and insufficient use as the basis for a finding that a mark is being put to real and effective use on a given market, the requirement of genuine use does not seek to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (see judgment of 15 September 2011, centrotherm Clean Solutions v OHIM – Centrotherm Systemtechnik (CENTROTHERM), T‑427/09, EU:T:2011:480, paragraph 26 and the case-law cited).
24 More specifically, when assessing, in a particular case, whether use of the trade mark is genuine, regard must be had to all of the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 13 February 2015, Husky CZ v OHIM – Husky of Tostock (HUSKY), T‑287/13, EU:T:2015:99, paragraph 63 and the case-law cited).
25 Genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned. It is therefore necessary to carry out a global assessment which takes into account all the relevant factors of the particular case and entails a degree of interdependence between the factors taken into account (see judgment of 23 October 2017, Galletas Gullón v EUIPO – O2 Holdings (Shape of a packet of biscuits), T‑404/16, not published, EU:T:2017:745, paragraph 40 and the case-law cited).
26 As regards the relevant period for assessing use of the contested mark, the Board of Appeal stated, in paragraph 26 of the contested decision, that the applicant was required to prove use of that mark during the period of five years prior to submission of the application for revocation, covering the time span from 14 February 2012 to 13 February 2017 (‘the relevant period’). That finding is not disputed by the applicant.
27 In addition, it must be noted that it is apparent from the contested decision that, in order to prove genuine use of the contested mark, the applicant submitted, in the context of the proceedings before the Cancellation Division, the following items of evidence:
– an affidavit from Ms Frommer dated 29 August 2017 (item of evidence No 1);
– two screenshots of the websites beautylumis.de and beautylumis.com, dated 1 September 2017 (items of evidence Nos 2 and 3);
– four screenshots of the websites beautylumis.de and beautylumis.com, obtained via the Wayback Machine service and dating from August 2013 and August 2015 (item of evidence No 4);
– a screenshot of the website byonik.net, dated 2 August 2017 (item of evidence No 5);
– two undated brochures relating to the products Byonik Creoline Serum and Byonik Creoline, respectively (items of evidence Nos 6 and 7);
– two advertising leaflets relating to the products Byonik Creoline Plus and Byonik Creoline Serum, one of which is dated March 2011 and the other is undated (items of evidence Nos 8 and 9);
– a price list for April 2015 relating to the products Creoline Plus and Creoline Serum (item of evidence No 10);
– a document showing sales figures for the product Byonik Creoline Kabinettware for the period from March 2010 to September 2015, in which the client names have been redacted (item of evidence No 11);
– a document showing sales figures for the product Byonik Creoline Serum for the period from January 2013 to September 2015, in which the client names have been redacted (item of evidence No 12);
– a document showing sales figures for the product Byonik Creoline Plus for the period from March 2010 to August 2015, in which the client names have been redacted (item of evidence No 13);
– a screenshot from 9 August 2017 of the website byonik.net showing the locations of the ‘Byonik Institute’ establishments (item of evidence No 14);
– a leaflet relating to ‘icosmetic®’, dated 2010, bearing the words ‘nur zum internen Gebrauch’ (‘for internal use only’) (item of evidence No 15);
– a letterhead of the company beauty lumis GmbH (item of evidence No 16);
– an extract from a judgment delivered on 9 December 2015 by the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) in the context of infringement proceedings brought by the applicant (item of evidence No 17);
– an affidavit dated 31 July 2017 concerning a marketing campaign (item of evidence No 18).
28 It is also apparent from the contested decision that the applicant submitted, before the Board of Appeal, unredacted versions of items of evidence Nos 11 to 13.
29 It is in the light of those items and arguments presented by the applicant that it is necessary to examine whether the Board of Appeal acted correctly in finding that proof of genuine use of the contested mark had not been furnished in the case at hand.
Use of the contested mark in respect of the goods and services covered by that mark
30 The applicant asserts that the contested mark has been used at least as regards the ‘cosmetics, skin care products, in particular skin cream’ and ‘lotions for cosmetic purposes’ in Class 3 and the ‘hygienic and beauty care for human beings’, ‘cosmetic services’ and ‘beauty-salon services’ in Class 44. As regards the ‘soaps’, ‘perfumery goods’, ‘essential oils and oils for cosmetic purposes’ in Class 3, ‘lasers, not for medical purposes’ in Class 9 and ‘medical services’ in Class 44, she refers to the observations which she submitted before the adjudicating bodies of EUIPO.
31 EUIPO and the intervener dispute the applicant’s arguments.
32 It is apparent from the contested decision that, according to the Board of Appeal, the items of evidence submitted by the applicant do not contain any reference to use of the contested mark for goods and services other than skin care products, and that, consequently, genuine use of that mark during the relevant period has not been established for the goods and services in Classes 9 and 44 or for the ‘soaps’, ‘perfumery goods’ and ‘essential oils and oils for cosmetic purposes’ in Class 3.
33 In that regard, first, so far as concerns the ‘cosmetics, skin care products, in particular skin cream’ and ‘lotions for cosmetic purposes’ in Class 3, it should be noted that, in paragraph 31 of the contested decision, the Board of Appeal found expressly that the items of evidence submitted refer to skin care products and implicitly that those products include the ‘cosmetics, skin care products, in particular skin cream’ and ‘lotions for cosmetic purposes’ in Class 3. In addition, as EUIPO submits, the Board of Appeal took into consideration, when examining the nature and extent of use of the contested mark, ‘cosmetics, skin care products, in particular skin cream’ and ‘lotions for cosmetic purposes’. Therefore, the applicant’s arguments seeking to establish that the contested mark was used for those goods are based on an incorrect reading of the contested decision.
34 Second, so far as concerns the ‘hygienic and beauty care for human beings’, ‘cosmetic services’ and ‘beauty-salon services’ in Class 44, the applicant submits, in essence, that the contested mark has been used for the products Byonik Creoline Serum and Byonik Creoline Plus and for beauty treatments and that, as a result, it has also been used for the services in question. She states that those products are also offered to professional clients for further beauty treatments.
35 In that regard, it should be noted that, in order for use of the contested mark for ‘hygienic and beauty care for human beings’, ‘cosmetic services’ and ‘beauty-salon services’ to be upheld, the applicant is required to prove that those services were actually provided under that mark (see, to that effect, judgment of 23 March 2017, Cryo-Save, T‑239/15, not published, EU:T:2017:202, paragraph 39).
36 In the present case, however, such use cannot be inferred from the documents relied on by the applicant in the application.
37 Items of evidence Nos 2 to 4 consist of screenshots of the websites beautylumis.de and beautylumis.com, where it is stated inter alia that ‘we offer anti-aging technology and products for face, neck and décolleté’ and that ‘the BYONIK® method combines gentle aesthetic dermatology and luxurious treatment with visible results, all on a sound scientific basis’. Although that introductory text presenting the activities of the company beauty lumis, of which the applicant is the managing director, is situated below three signs, one of which is [i]cosmetic®, its content does not demonstrate that ‘hygienic and beauty care for human beings’, ‘cosmetic services’ and ‘beauty-salon services’ were actually provided or, at the very least, offered under the contested mark.
38 In addition, the applicant submits, in essence, that it is apparent from items of evidence Nos 6 to 9, 14 and 15 that the products Byonik Creoline Serum and Byonik Creoline Plus have been offered to professional clients, namely beauty salons, and that, consequently, the contested mark has also been used for beauty treatments and cosmetic services. Even if it were to be supposed that that mark had been used in connection with the products Byonik Creoline Serum and Byonik Creoline Plus, offered also to professional clients, that fact is not sufficient to establish that ‘hygienic and beauty care for human beings’, ‘cosmetic services’ and ‘beauty-salon services’ were actually marketed or provided under that mark. Furthermore, it is apparent from item of evidence No 14 that the beauty salons to which the applicant refers are ‘Byonik Institute’ establishments, without it being possible to establish a link between the services offered by those establishments and the contested mark.
39 It follows that the documents relied on by the applicant do not, even taken as a whole, demonstrate that the ‘hygienic and beauty care for human beings’, ‘cosmetic services’ and ‘beauty-salon services’ in Class 44 were actually provided under the contested mark. Therefore, the Board of Appeal did not err in finding that no genuine use of that mark had been established in respect of those services.
40 Third, so far as concerns the ‘soaps’, ‘perfumery goods’, ‘essential oils and oils for cosmetic purposes’ in Class 3, the ‘lasers, not for medical purposes’ in Class 9 and the ‘medical services’ in Class 44, it must be stated that the applicant merely refers, without providing any further specifics, to the arguments which she presented before the Board of Appeal, which referred to her observations made before the Cancellation Division.
41 In that regard, it must be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that same statute, and under Article 177(1)(d) of the Rules of Procedure of the General Court, the application made in the context of an action brought against EUIPO must contain, inter alia, a summary of the pleas in law relied on. It must, accordingly, specify the grounds on which the action is based, with the result that a mere abstract statement of the grounds is not sufficient to satisfy the requirements of the Statute of the Court of Justice of the European Union and the Rules of Procedure. Moreover, that summary – albeit concise – 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 further information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action or, more specifically, a plea in law, is to be admissible – that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (see judgment of 4 October 2018, Blackmore v EUIPO – Paice (DEEP PURPLE), T‑345/16, not published, EU:T:2018:652, paragraph 45 and the case-law cited).
42 Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the provisions recalled in paragraph 41 above, must appear in the application. Thus, it is not for the General Court to seek and identify, in the annexes, or even in EUIPO’s administrative file, the pleas on which it may consider the action to be based. Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 9 March 2018, Recordati Orphan Drugs v EUIPO – Laboratorios Normon (NORMOSANG), T‑103/17, not published, EU:T:2018:126, paragraph 24 and the case-law cited).
43 In the present case, the application does not contain the essential arguments of the applicant relating to the goods and services referred to in paragraph 40 above and, in accordance with the case-law recalled in paragraph 42 above, a general reference to arguments presented before the Board of Appeal cannot make up for that absence. It follows that the complaint in question has not been put forward in a sufficiently precise and intelligible way to enable the Court to exercise its power of review, with the result that it must be rejected as inadmissible.
44 In the light of all of the foregoing, it must be held that the Board of Appeal did not err in finding that no use, a fortiori no genuine use, of the contested mark during the relevant period had been established for the goods and services in Classes 9 and 44 and for the ‘soaps’, ‘perfumery goods’ and ‘essential oils and oils for cosmetic purposes’ in Class 3.
45 In those circumstances, the applicant’s other complaints relating to the assessment of the items of evidence as regards the duration, place, nature and extent of use of the contested mark will be examined only in relation to the ‘cosmetics, skin care products, in particular skin cream’ and ‘lotions for cosmetic purposes’ in Class 3.
Use of the contested mark for the ‘cosmetics, skin care products, in particular skin cream’ and ‘lotions for cosmetic purposes’ in Class 3
– Duration of use
46 The applicant submits, in essence, that the Board of Appeal wrongly disregarded the probative value of items of evidence Nos 5, 6 and 18 in the light of the requirement relating to the duration of use. She contends that, although some items of evidence are undated or do not date from the relevant period, it is necessary to examine them in the light of other items of evidence in the context of an overall assessment. She adds that the products from the Byonik line, the shape of the packaging of which has not changed since 2010, have been sold regularly in large volumes during a significant portion of the relevant period and that their sale has been accompanied by advertising measures.
47 EUIPO and the intervener dispute the applicant’s arguments.
48 In paragraph 27 of the contested decision, the Board of Appeal found that items of evidence Nos 11 to 13 related to the relevant period. By contrast, it considered that the temporal relevance of certain items of evidence, such as items of evidence Nos 5, 6 and 18, was ‘doubtful’ and referred to its analysis in paragraphs 39 and 40 of that decision relating to the assessment of the nature and extent of use. It stated, inter alia, that item of evidence No 5 was a screenshot that had been generated in August 2017 and therefore did not fall within the relevant period. As regards item of evidence No 6, which is a brochure for the product Byonik Creoline Serum, it observed that its date of publication was not indicated. In addition, the Board of Appeal considered that the affidavit produced as item of evidence No 1 did not appear to be a sufficient basis to prove that the appearance of the packaging of the product Byonik Creoline Serum during the relevant period actually was as shown in items of evidence Nos 5 and 6. As regards the affidavit constituting item of evidence No 18, it found that the marketing campaign for the contested mark referred to therein and commissioned in January 2017 did not make it possible to establish use of that mark during the relevant period, since that period ended on 13 February 2017. In addition, the Board of Appeal observed that the packaging of the product Byonik Creoline Serum, as shown in items of evidence Nos 5 and 6, might be the result of that marketing campaign.
49 In that regard, it must be borne in mind that the relevant period for assessing use of the contested mark covers the time span from 14 February 2012 to 13 February 2017 (see paragraph 26 above).
50 In the first place, it should be noted that it is not disputed that the sales figures for the products Byonik Creoline Kabinettware, Byonik Creoline Serum and Byonik Creoline Plus set out in items of evidence Nos 11 to 13 relate to a portion of the relevant period, as is apparent from the contested decision.
51 In the second place, the applicant submits, in essence, that items of evidence Nos 5 and 6 show the packaging of the product Byonik Creoline Serum bearing the contested mark, on the lower part of the bottle, and constitute examples of advertising used since 2010. According to her, those items of evidence must be interpreted in the light of the sales figures relating to the relevant period as set out in items of evidence Nos 11 to 13, the affidavit submitted as item of evidence No 1 and the other advertising campaigns presented.
52 In that regard, it must be noted that some of the items of evidence relied on by the applicant bear a date outside the relevant period (items of evidence Nos 5, 8 and 15) or are undated (items of evidence Nos 6, 7 and 9).
53 It is true that, in accordance with the case-law, it is not precluded that, in assessing the genuineness of use during the relevant period, account may be taken, where appropriate, of any circumstances subsequent to that period which may make it possible to confirm or better assess the extent to which that mark was used during the relevant period (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 85 and the case-law cited). The same applies to circumstances which are prior to the relevant period (see, to that effect, judgment of 5 July 2016, Future Enterprises v EUIPO – McDonald’s International Property (MACCOFFEE), T‑518/13, EU:T:2016:389, paragraph 55 and the case-law cited). However, in both cases, the taking into consideration of such circumstances is necessarily subject to the submission of documents showing use of the contested mark during that period.
54 In addition, although undated documents may, in certain cases, be used to establish use of a mark (see, to that effect, judgment of 13 February 2015, HUSKY, T‑287/13, EU:T:2015:99, paragraph 68), such evidence can, however, be relevant for proving such use during the reference period only to the extent to which it serves to confirm facts inferred from other items of evidence (judgment of 2 February 2017, Marcas Costa Brava v EUIPO – Excellent Brands JMI (Cremcaffé by Julius Meinl), T‑686/15, not published, EU:T:2017:53, paragraph 59).
55 In the present case, it must be noted that items of evidence Nos 5 and 6 show the packaging of the product Byonik Creoline Serum bearing the reference ‘icosmetics®’, on the lower part of the bottle; item of evidence No 5, a screenshot of the website byonik.net, is dated 2 August 2017 and, therefore, postdates the relevant period, whereas item of evidence No 6, a brochure, is undated. Consequently, those items of evidence are not sufficient, in themselves, to establish use of the contested mark during the relevant period and must therefore be corroborated by other items of evidence.
56 In so far as the applicant refers, to that end, to the sales figures set out in items of evidence Nos 11 to 13 concerning the products Byonik Creoline Kabinettware, Byonik Creoline Serum and Byonik Creoline Plus, it is sufficient to note that, as is apparent, in essence, from the contested decision, those documents make no reference to the contested mark. It follows that those items do not allow any conclusion to be drawn as to whether the packaging of the product Byonik Creoline Serum as shown in items of evidence Nos 5 and 6 has been used by the applicant since 2010 or, at the very least, during the relevant period.
57 In so far as the applicant submits that sales figures showing a significant sales volume are usually accompanied by appropriate advertising measures, it is sufficient to recall that, in accordance with the case-law cited in paragraph 25 above, genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned.
58 As regards the inferences which may be drawn from the affidavit produced as item of evidence No 1, it should be noted that that affidavit comes from the applicant herself, in her capacity as the managing director of the company beauty lumis. In that affidavit, she states that all brochures and leaflets presented as proof of use have been used for commercial reasons and advertising since 2010 until the date of that affidavit, namely 29 August 2017.
59 In accordance with the case-law, in order to assess the evidential value of sworn statements, it is necessary, as is the case for every document, first of all, to verify the credibility and veracity of the information which it contains. In that regard account must be taken, inter alia, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it is addressed, and whether, on its face, the document appears sound and reliable (see judgment of 16 July 2014, Nanu-Nana Joachim Hoepp v OHIM– Stal-Florez Botero (la nana), T‑196/13, not published, EU:T:2014:674, paragraph 31 and the case-law cited).
60 In the present case, apart from the fact that the affidavit in question comes from the applicant, the assertion contained therein that all brochures and leaflets presented as proof of use have been used since 2010, and therefore also during the relevant period, is not corroborated by the items of evidence relied on by the applicant.
61 Although the brochure submitted as item of evidence No 7 also shows the packaging of the product Byonik Creoline Serum bearing the reference ‘icosmetics®’ on the lower part of the bottle, that brochure, like item of evidence No 6, is undated. The leaflet produced as item of evidence No 9 is also undated.
62 In so far as the applicant refers to the leaflet submitted as item of evidence No 8, dated March 2011, and to the leaflet submitted as item of evidence No 15, dated from 2010, it must be held that those leaflets predate the relevant period.
63 Furthermore, contrary to what the applicant puts forward, items of evidence Nos 8 and 15 do not show the same representation of the packaging of the product Byonik Creoline Serum as the one shown in items of evidence Nos 6 and 7. The reference ‘icosmetics®’ is not discernible on the bottle of that product as shown in items of evidence Nos 8 and 15. That is also the case for the packaging of that product as shown in the leaflet submitted as item of evidence No 9 and in the price list for April 2015 constituting item of evidence No 10. That difference leaves room for doubt as to the accuracy of the assertion contained in the affidavit submitted as item of evidence No 1, according to which all brochures and leaflets presented have been used since 2010.
64 In those circumstances, the affidavit produced as item of evidence No 1 does not permit a finding that the brochure constituting item of evidence No 6, showing the packaging of the product Byonik Creoline Serum with the reference ‘icosmetics®’, has been used during the relevant period or that that product has been marketed on the internet, in the form that is apparent from item of evidence No 5, during that period.
65 For the reasons set out in paragraphs 61 to 63 above, the overall assessment of items of evidence Nos 5 and 6 together with items of evidence Nos 7 to 10 and 15, relied on by the applicant, does not permit any other conclusion as regards items of evidence Nos 5 and 6.
66 In so far as the applicant submits that the Board of Appeal was wrong to take the view that the packaging of the product Byonik Creoline Serum as shown in items of evidence Nos 5 and 6 is different and might result from the marketing campaign referred to in the affidavit submitted as item of evidence No 18, those arguments cannot succeed either. As has already been found, it is not apparent from the items of evidence that the packaging of that product has always been the same (see paragraph 63 above). In view of that fact and the fact that the screenshot submitted as item of evidence No 5 is dated 2 August 2017, the Board of Appeal did not err in stating that the packaging of the product Byonik Creoline Serum as shown in items of evidence Nos 5 and 6 might be the result of the marketing campaign which was commissioned in January 2017.
67 In so far as the applicant refers to the screenshots of websites submitted as item of evidence No 4, it must be noted that those screenshots do in fact relate to the relevant period and include the reference ‘icosmetic®’, as is apparent, in essence, from paragraphs 40 and 41 of the contested decision. Nevertheless, that reference does not relate to a product or to the representation of a product. Consequently, that item of evidence does not serve to corroborate the other items of evidence of an advertising nature as regards use of the contested mark during the relevant period.
68 In any event, it must be noted that, in the context of the assessment of the nature and extent of the use of the contested mark, the Board of Appeal took into consideration the possibility that the leaflets and brochures submitted by the applicant as items of evidence Nos 6 to 9 had indeed been distributed since 2010.
69 In the light of the foregoing, the applicant’s arguments relating to the Board of Appeal’s assessment of the probative value of certain items of evidence in the light of the requirement relating to the duration of use must be rejected.
– The place of use
70 The applicant claims that the contested mark has been used in the territory of the European Union. She states that the client names set out in items of evidence Nos 11 to 13 are overwhelmingly German-language names, which makes it more than likely that those clients are based in Germany and Austria. In addition, she refers to a list of client addresses, annexed to the application, in order to establish that the vast majority of clients referred to in items of evidence Nos 11 to 13 are based in Germany, but that there are also clients in the Netherlands, Austria, Spain and the United Kingdom. She submits, moreover, that the addresses of those clients could easily be found via an internet search and that the Board of Appeal failed to carry out such a simple search.
71 EUIPO and the intervener submit, in essence, that the Board of Appeal was right to have doubts as to the use of the contested mark in the European Union.
72 In paragraphs 28 and 29 of the contested decision, the Board of Appeal found that the affidavit submitted as item of evidence No 1 stated that the contested mark was used in Germany, Austria and Switzerland. Since Switzerland is not a member of the European Union, it noted that acts of use in that country cannot prevent a declaration of revocation of that mark. In addition, it considered that the further documents, in particular items of evidence Nos 11 to 13, did not make it possible to determine whether the reported sales or other acts of use related to the European Union or to Switzerland. It concluded that there was uncertainty as to the extent to which the contested mark had been used in the European Union.
73 The applicant’s arguments cannot call those findings into question.
74 First, contrary to what the applicant appears to claim, it is not apparent from the contested decision that the Board of Appeal concluded that the contested mark had not been used in the territory of the European Union. The Board of Appeal merely found, in essence, that the items of evidence submitted did not make it possible to determine the extent of its use in that territory, since, according to the applicant’s affidavit (item of evidence No 1), the contested mark was used, in addition to Germany and Austria, also in Switzerland.
75 Second, in so far as the applicant refers to the fact that the client names set out in items of evidence Nos 11 to 13, namely the sales figures for the products Byonik Creoline Kabinettware, Byonik Creoline Serum and Byonik Creoline Plus, are overwhelmingly German-language names, in order to support the claim that the contested mark has been used in Germany and Austria, it must be noted, as EUIPO observes, that German is one of the official languages of the Swiss Confederation and the applicant herself declared in her affidavit that products have also been sold in Switzerland under the contested mark. Accordingly, the Board of Appeal did not err in finding that there was uncertainty as to the extent to which that mark has been used in the European Union.
76 Third, in so far as the applicant refers to the list of client addresses annexed to the application as proof of the place where the clients referred to in items of evidence Nos 11 to 13 are based, it is sufficient to recall that that document was submitted for the first time before the Court and is therefore inadmissible (see paragraphs 13 to 15 above).
77 Fourth, in so far as the applicant asserts that the addresses of the clients referred to in items of evidence Nos 11 to 13 could easily be found via an internet search and that the Board of Appeal failed to carry out such a search, it must be held that the burden of proving genuine use of the mark at issue in the context of revocation proceedings rests with the proprietor of the mark (see, to that effect, judgment of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraphs 61 to 68).
78 In those circumstances, the applicant’s arguments concerning the Board of Appeal’s assessment of the items of evidence as regards the criterion relating to the place of use of the contested mark must be rejected.
– The nature of the use
79 The applicant submits that the contested mark has been used in accordance with its essential function. She claims, in essence, that that mark has been used as an umbrella trade mark for the Byonik Creoline products. According to the applicant, it is not necessary for the mark always to be placed on the product itself and it is sufficient if the mark is used in advertising. She submits that the co-branding strategy becomes clear from items of evidence Nos 2 to 10 and 15 where the cosmetic products are advertised under the contested mark and a link is established between that mark and the Byonik Creoline products.
80 EUIPO and the intervener dispute the applicant’s arguments.
81 In order for a mark to be considered the subject of ‘genuine use’, within the meaning of Article 15(1) and Article 51(1)(a) of Regulation No 207/209, it is necessary that that mark is used in accordance with its essential function (see judgment of 17 October 2019, Landeskammer für Land- und Forstwirtschaft in Steiermark v Schmid, C‑514/18 P, not published, EU:C:2019:878, paragraph 36 and the case-law cited).
82 As regards individual marks, that 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 17 October 2019, Landeskammer für Land- und Forstwirtschaft in Steiermark v Schmid, C‑514/18 P, not published, EU:C:2019:878, paragraph 37 and the case-law cited).
83 The requirement, in the application of 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 Regulation No 207/2009 where it has not been used in accordance with its essential function for an uninterrupted period of five years (see judgment of 17 October 2019, Landeskammer für Land- und Forstwirtschaft in Steiermark v Schmid, C‑514/18 P, not published, EU:C:2019:878, paragraph 38 and the case-law cited).
84 In the contested decision, the Board of Appeal found that the applicant had neither demonstrated that the contested mark had been used as a trade mark in the sale of the ‘cosmetics, skin care products, in particular skin creams’ and ‘lotions for cosmetic purposes’ in Class 3, nor established in a sufficiently substantiated manner that that mark had been used in another relevant way. The Board of Appeal stated that some of the documents may indicate that the sign I-cosmetics had been used during the relevant period as the name of a particular concept, but that it was impossible to infer therefrom that that sign had actually been used as a trade mark for specific goods and services. It also found that some documents could show use of that sign as a trade mark, but that at least the extent of that use was not sufficiently specified.
85 The arguments put forward by the applicant cannot call into question that assessment concerning the criterion relating to the nature of use of the contested mark.
86 In the first place, as the Board of Appeal correctly found, items of evidence Nos 2 to 4, 10 and 16 do not allow the conclusion that the reference ‘icosmetic®’, accompanied by the words ‘we care with intelligence’, which appears in those items of evidence, was perceived as use of the contested mark, I-cosmetics, as a mark identifying the commercial origin of certain goods.
87 As has already been stated (see paragraph 37 above), items of evidence Nos 2 to 4 consist of screenshots of the websites beautylumis.de and beautylumis.com, which present, below the three references ‘BYONIK®’, ‘icosmetic®’ and ‘SLIMYONIK®’, the activities of the company beauty lumis, of which the applicant is the managing director. However, the goods marketed under the contested mark are not specified and cannot be inferred from the text presented, which refers only to the other two signs and to the goods and services which may be associated with them.
88 It is, admittedly, true, as the applicant points out, that it is not necessary for a mark always to be placed on the product itself and that the use of that mark in advertising, for example on websites or in leaflets, also constitutes a form of use of that mark. However, where a trade mark is not affixed to a product, use as a trade mark for certain goods or services is present only where the sign is used in such a way that a link is established between that sign and the goods or services marketed.
89 In the present case, such a link is not apparent from items of evidence Nos 2 to 4. Contrary to what the applicant asserts, it also does not follow from those items that she offered, under the contested mark, Byonik cosmetic products or that that mark was used as an umbrella trade mark or as a co-brand for those products. In that regard, it must be noted that the visual configuration of the websites represented in those items of evidence in no way highlights the contested mark in relation to the other two signs, given that the three signs appear therein on the same level, next to one another, and are of a similar size.
90 The same applies in regard to item of evidence No 16, which shows the letterhead of the company beauty lumis.
91 Item of evidence No 10, an order form showing the price list for the products Creoline Plus and Creoline Serum for April 2015, also does not permit a different conclusion, since the packaging of those products, as shown in that item, bears the Byonik mark, and not the contested mark. Next, although that document contains, below the words ‘Byonik® Creoline’, the references ‘icosmetic®’ and ‘i-cosmetic®’, the information surrounding them alludes to a specific technology and does not show use of the contested mark as a trade mark. Furthermore, it must be noted that the use of the symbol ‘®’ is not sufficient to demonstrate such use (judgment of 14 February 2017, Pandalis v EUIPO – LR Health & Beauty Systems (Cystus), T‑15/16, not published, EU:T:2017:75, paragraph 44).
92 In the second place, as regards items of evidence Nos 5 to 9 and 15, it must be noted that the Board of Appeal, despite some doubts, took the view that those documents could prove use of the contested mark as a trade mark, bearing in mind that item of evidence No 15, a leaflet for internal use, was examined in conjunction with item of evidence No 14. It follows that the applicant’s arguments relating to the nature of use of the contested mark and based on items of evidence Nos 5 to 9 and 14 are ineffective.
93 In so far as the applicant seeks to establish that the packaging of the product Byonik Creoline Serum was always the same in the advertising material and that the contested mark was always included thereon, it must be held that that is not the case, for the reasons set out in paragraph 63 above. As regards the applicant’s argument that, in the representation of the product Byonik Creoline Serum shown in items of evidence Nos 8 and 9, the liquid is hiding the reference ‘icosmetics®’, apart from the fact that such an explanation is not convincing, it is sufficient to note that, in items of evidence Nos 10 and 15, that reference is also not discernible on the packaging of the product concerned.
94 In the third place, in so far as the applicant refers to the sales figures set out in items of evidence Nos 11 to 13 concerning the products Byonik Creoline Kabinettware, Byonik Creoline Serum and Byonik Creoline Plus, it must be reiterated, as the applicant herself acknowledges, that those documents make no reference to the contested mark.
95 In so far as the applicant submits that it is apparent from the advertising, as submitted, that the products referred to in items of evidence Nos 11 to 13 have been sold under the contested mark as a co-brand, it must be held, as is apparent from the contested decision, that the other items of evidence, even when assessed as a whole, do not permit the conclusion that the product Byonik Creoline Serum was advertised or sold under the contested mark during the period covered by the sales figures set out in those items of evidence, and therefore during the relevant period (see also paragraphs 55 to 67, 89 to 91 above). The same applies as regards the products Byonik Creoline Kabinettware and Byonik Creoline Plus.
96 In the light of all of the foregoing, it must be held that the Board of Appeal did not err in its assessment of the items of evidence as regards the criterion relating to the nature of use of the contested mark.
– The extent of use
97 The applicant claims that the extent of use of the contested mark has been demonstrated. She states that the sales figures submitted reveal a high and regular volume of sales during the relevant period and that those sales were accompanied by advertising measures on websites and in leaflets and brochures. She adds that even a minimal use may suffice and that, in view of the particular features of the market, regular sales in high volumes compensate for a relatively low level of advertising.
98 EUIPO and the intervener dispute the applicant’s arguments.
99 Concerning the extent of the use made of a mark, account must be taken, in particular, of the commercial volume of all the acts of use, on the one hand, and of the duration of the period in which those acts of use occurred, and the frequency of those acts, on the other (judgment of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 35).
100 The turnover and the volume of sales of the goods under the trade mark the genuine use of which is contested cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services on the market. Accordingly, use of a mark need not always be quantitatively significant in order for it to be deemed genuine. Even minimal use can therefore be sufficient to be classified as genuine, provided that it is regarded as warranted, in the relevant economic sector, as a means of maintaining or creating market shares for the goods or services protected by the mark. It follows that it is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether use is genuine or not, with the result that a de minimis rule, which would not allow EUIPO or, on appeal, the General Court, to appraise all the circumstances of the dispute before it, cannot be laid down (see judgment of 23 October 2017, Shape of a packet of biscuits, T‑404/16, not published, EU:T:2017:745, paragraph 42 and the case-law cited).
101 It is in the light of those considerations that it is necessary to examine whether the Board of Appeal was right to find that the items of evidence submitted by the applicant did not allow a finding that the criterion as regards extent of use was satisfied in the case at hand.
102 In that regard, it must be noted that the Board of Appeal found that the affidavit submitted as item of evidence No 1 did not provide any concrete facts on the extent of use of the contested mark. The Board of Appeal also found that the sales figures set out in items of evidence Nos 11 to 13 did not demonstrate the existence of acts of relevant use of the contested mark, since neither those items in themselves nor the overall assessment of those items together with other items of evidence made it possible to establish that those figures related to the sale of the products there mentioned under the contested mark. In addition, the Board of Appeal took the view that items of evidence Nos 2 to 4, 10 and 16 did not make it possible to establish use of the contested mark as a trade mark for specific goods and that, moreover, the applicant had not provided any details as to the use of the price list and letterhead constituting items of evidence Nos 10 and 16. Lastly, as regards items of evidence Nos 5 to 9 and 15, the Board of Appeal found that those documents could show use of the contested mark as a trade mark, but that the extent of that use was not sufficiently specified in the documents concerned. More specifically, as regards items of evidence Nos 6 to 9, it took the view that, even if those leaflets and brochures had actually been distributed since 2010, it was difficult to establish how they had been used and to draw conclusions on the volume, scope and frequency of their distribution.
103 That analysis by the Board of Appeal must be endorsed.
104 In the first place, it should be noted, as is apparent from the contested decision, that the applicant confined herself, in the affidavit submitted as item of evidence No 1, to stating that all products bearing the contested mark had been sold continuously since 2010 ‘in large scales’. That statement does not contain any precise indication as to the volumes of sales of the goods covered by the contested mark and the turnover resulting from those sales. That statement is therefore not sufficient, in itself, to establish the extent of use of the contested mark and must therefore be corroborated by other evidence.
105 In the second place, the applicant contends that the sales figures set out in items of evidence Nos 11 to 13 and relating to the products Byonik Creoline Kabinettware, Byonik Creoline Serum and Byonik Creoline Plus reveal a regular and high volume of sales during the relevant period.
106 In that regard, it must be recalled that it has not been established that those products were sold or, at least, offered under the contested mark during the relevant period (see paragraphs 94 and 95 above).
107 It is admittedly true that items of evidence Nos 5 to 9 and 15 contain the references ‘icosmetics®’, ‘i-cosmetics®’, ‘i-cosmetic®’ or ‘icosmetic®’ in relation to the products Byonik Creoline Serum and Byonik Creoline Plus, and that, for that reason, the Board of Appeal, despite some doubts, took the view that those documents could demonstrate use of the contested mark as a trade mark. Nevertheless, as has already been found (see paragraphs 55 to 65 above), none of those documents dates from the relevant period.
108 Furthermore, as has already been pointed out in paragraphs 89 to 91 above, items of evidence Nos 2 to 4, 10 and 16 do not make it possible to establish use of the contested mark as a trade mark for specific goods, even though some of those documents (items of evidence Nos 4 and 10) relate to the relevant period.
109 Accordingly, the goods referred to in the items of evidence relating to the sales figures, which are internal documents, cannot be linked with the requisite certainty to the contested mark as used during the relevant period, with the result that those items of evidence cannot be regarded as demonstrating marketing of the goods in question and the volume thereof. In that context, it must be pointed out that the applicant has not submitted any invoice or purchase order that makes it possible to assess the extent of use of the contested mark.
110 In the third place, it must be held that the leaflets and brochures of a promotional nature (items of evidence Nos 6 to 9) cannot be regarded as sufficiently corroborating item of evidence No 1. In addition to the fact that they cannot be linked to the relevant period, as is apparent from the contested decision, there is no information on the volume, scope and frequency of their distribution, whereas, contrary to what the applicant puts forward, these are relevant factors for the assessment of the extent of use of a trade mark.
111 Furthermore, it should be noted that the applicant herself appears to acknowledge that the level of advertising for the goods allegedly sold under the contested mark was relatively low.
112 In so far as the applicant submits that the cosmetic products and beauty treatments are aimed especially at professional clients, which would explain why there was less advertising, it should be noted, first, that, as is apparent from the contested decision, skin care products are of interest to the general public and, second, that the applicant’s unsubstantiated arguments cannot call that finding into question. Furthermore, it is apparent from the contested decision that, contrary to what the applicant claims, the Board of Appeal took into consideration the size of the market in the cosmetics sector.
113 In the fourth place, the other items of evidence relied on by the applicant also do not corroborate the assertion relating to the extent of use of the contested mark contained in the affidavit constituting item of evidence No 1.
114 It should be reiterated that items of evidence Nos 2 to 4, 10 and 16 do not permit a finding that the contested mark has been used as a trade mark for specific goods. Furthermore, as regards the order form constituting item of evidence No 10, it must be noted, as is apparent from the contested decision, that there is no information on how and to what extent that document was distributed. In any event, that item of evidence does not allow any conclusion to be drawn as to the quantity of goods sold. The same is true of item of evidence No 16, a letterhead of the company beauty lumis, of which the applicant is the managing director.
115 Furthermore, item of evidence No 5 postdates the relevant period and item of evidence No 15 predates that period. As regards the latter, it should be noted that it is a document bearing the words ‘nur zum internen Gebrauch’ (‘for internal use only’), in respect of which it has not, moreover, been established that it was used during the relevant period.
116 Lastly, with regard to item of evidence No 14, a screenshot of the website byonik.net showing a map of the locations of the ‘Byonik Institute’ establishments, it must be noted that, contrary to what the applicant contends, that document, even taken in conjunction with items of evidence Nos 11 to 13, does not permit the conclusion that the goods covered by the contested mark were sold or offered to professional clients based in Germany. As is apparent from the contested decision, that item of evidence might indicate the addressees of the leaflet submitted as item of evidence No 15, which would not call into question the considerations set out in paragraph 115 above.
117 Admittedly, it is settled case-law that it cannot be ruled out that an accumulation of items of evidence may allow the necessary facts to be established, even though none of those items of evidence, taken individually, would be capable of establishing the accuracy of those facts (see judgment of 22 November 2018, Fruit of the Loom v EUIPO – Takko (FRUIT), T‑424/17, not published, EU:T:2018:824, paragraph 39 and the case-law cited). Nevertheless, in the present case, the overall assessment of the items of evidence does not permit the conclusion that the extent of use, as defined by the case-law, has been established over the relevant period.
118 Furthermore, contrary to what the applicant claims, the Board of Appeal did not confine itself to assessing the items of evidence individually and endeavoured to establish the necessary facts by carrying out an overall assessment of those items.
119 In the light of all of the foregoing, the Board of Appeal did not err in its assessment of the items of evidence as regards the criterion relating to the extent of use of the contested mark.
– Conclusion
120 It must be noted that the four requirements relating to proof of use of the contested mark, referred to in Rule 22(3) of Regulation No 2868/95 and concerning the place, time, extent and nature of use of the mark for the goods and services in respect of which it is registered, are cumulative (see, to that effect, judgment of 28 May 2020, Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line), T‑615/18, not published, EU:T:2020:223, paragraph 35 and the case-law cited). Furthermore, it is apparent from the case-law cited in paragraph 117 above that it is not necessary for every item of evidence to contain information on each of the four aspects to which proof of genuine use of a mark must relate and that it cannot be ruled out that an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would not be capable of establishing the accuracy of those facts.
121 In the present case, it follows from all of the foregoing considerations concerning the four aspects to which proof of use must relate that the items of evidence, assessed as a whole, do not permit a finding that the contested mark was used during the relevant period in order to create or preserve an outlet for the goods at issue. More specifically, the extent of use of the contested mark has not been demonstrated by the applicant. Furthermore, as is apparent from the foregoing analysis, uncertainties also persist as regards the duration, place and nature of its use during the relevant period.
122 In those circumstances, the Board of Appeal was right to find that genuine use of the contested mark during the relevant period had not been demonstrated. Accordingly, the applicant’s single plea in law must be rejected as unfounded, without it being necessary to examine the intervener’s arguments relating to the form in which the contested mark was used. It follows that the action must be dismissed.
Costs
123 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.
124 Since the applicant has been unsuccessful, she must be ordered to pay the costs incurred by EUIPO, in accordance with the form of order sought by the latter. Since the intervener has not applied for costs to be awarded against the applicant, it must bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Ms Angela Frommer to bear her own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);
3. Orders Minerva GmbH to bear its own costs.
Delivered in open court in Luxembourg on 7 July 2021.
E. Coulon | | M. van der Woude |