JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
30 January 2015 (*)
(Community trade mark — Revocation proceedings — Community figurative mark now — Genuine use of the mark — Article 51(1)(a) and Article 51(2) of Regulation (EC) No 207/2009)
In Case T‑278/13,
Now Wireless Ltd, established in Guildford (United Kingdom), represented by T. Alkin, Barrister,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Walicka, acting as Agent,
defendant,
the other party to proceedings before the Board of Appeal of OHIM, intervener before the Court, being
Starbucks (HK) Ltd, established in Hong Kong (China), represented by P. Kavanagh, Solicitor,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 7 March 2013 (Case R 234/2012-2), concerning revocation proceedings between Now Wireless Ltd and Starbucks (HK) Ltd,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 15 May 2013,
having regard to the response of OHIM lodged at the Court Registry on 4 September 2013,
having regard to the response of the intervener lodged at the Court Registry on 5 September 2013,
having regard to the change in the composition of the Chambers of the General Court,
having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur and pursuant to Article 135a of the Rules of Procedure of the Court, to give a ruling without an oral procedure,
gives the following
Judgment
1 On 26 March 2004, the intervener, Starbucks (HK) Ltd, was granted registration of the following figurative mark (‘the contested mark’) by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM):
2 The services in respect of which registration was granted are in Classes 35, 41 and 42 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended.
3 On 1 April 2010, the applicant, Now Wireless Ltd, filed an application for revocation of the contested mark pursuant to Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). In that request, the applicant claimed that that mark had not been put to genuine use in the European Union in respect of all the services for which it had been registered, for a continuous period of five years.
4 By decision of 28 November 2011, the Cancellation Division revoked the contested mark in respect of the services in Classes 35 and 41. By contrast, after the limitation made during the course of the proceedings before OHIM, the Cancellation Division upheld the validity of the registration of the contested mark for the following services in Class 42 (‘the services concerned’): ‘Information provided online from a computer database or from the Internet; installation and maintenance of computer software; provision of access to the Internet; provision of Internet services; provision of access to sites on an electronic information network; provision of access to various databases; hiring, rental and leasing of computer programs, computer terminals, modems, computer peripherals, any other Internet devices’.
5 On 30 January 2012, the applicant filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the Cancellation Division’s decision in so far as it upheld the registration of the contested mark for the services concerned.
6 By decision of 7 March 2013 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal. As the contested mark had been registered on 26 March 2004, the Board of Appeal adopted the Cancellation Division’s conclusion that the five-year ‘period of grace’ had expired when the application for revocation was filed on 1 April 2010. The Board of Appeal therefore examined, in the contested decision, the evidence of proof of genuine use of the contested mark for the period from 1 April 2005 to 31 March 2010 (‘the relevant period’), and this was not contested by the parties. In essence, the Board of Appeal found that the evidence adduced by the intervener demonstrated that the contested mark had been put to genuine use during the relevant period in respect of the services concerned.
Forms of order sought
7 The applicant claims that the Court should:
– annul the contested decision;
– revoke the contested mark on the ground of non-use;
– order the intervener to pay the costs incurred by the applicant.
8 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs incurred by OHIM.
9 The intervener claims that the Court should:
– uphold the contested decision;
– dismiss the action;
– order the applicant to pay the costs.
Law
10 As Rule 2(4) 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) states, the classification of goods and services under the Nice Agreement is to serve exclusively administrative purposes. In that regard, it should be noted that, as set out in paragraph 22 of the contested decision, even if some of the services for which the contested mark was registered are in Class 38 of the Nice Agreement, in its current version, the specification of services in Class 42 (with the exception of ‘hiring, rental and leasing of computer programs, computer terminals, modems’) for which that mark was registered was correct at the time of filing. The finding in paragraph 23 of the contested decision that the impact of those anomalies is negligible and that that classification does not constitute a material factor in the present case must therefore be upheld. The present action relates to the genuine use of the contested mark, which must be examined in the light of several factors laid down by case-law (see paragraph 14 below).
11 The applicant’s single plea in law, alleging infringement of Article 51(1)(a) and/or Article 51(2) of Regulation No 207/2009, concerning the genuine use of the mark, consists in essence of four parts, alleging: (i) use of the contested mark has not been demonstrated for the services concerned; or (ii) the Board of Appeal incorrectly assessed the use of such services in that it did not subdivide them precisely and narrowly; or (iii) the Board of Appeal wrongly inferred that consent had been granted for use of the contested mark beyond that explicitly granted by the licence in the present case; or (iv) the Board of Appeal incorrectly assessed the extent of the genuine use, which must extend beyond a limited geographical area to be sufficient use to constitute use in a Member State or in the European Union.
12 The Court will consider those four parts in the light of the rules and principles set out below.
13 Article 51 of Regulation No 207/2009 states:
‘1. 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; …
2. Where the grounds for revocation of rights exist in respect of only some of the goods or services for which the Community trade mark is registered, the rights of the proprietor shall be declared to be revoked in respect of those goods or services only.’
14 Under Rule 22(3) of Regulation No 2868/95, which applies mutatis mutandis to revocation proceedings pursuant to Rule 40(5) of that regulation, evidence of use must concern the place, time, extent and nature of use of the trade mark (see judgments of 8 July 2004 in Sunrider v OHIM — Espadafor Caba (VITAFRUIT), T‑203/02, ECR, EU:T:2004:225, paragraph 37, and 10 September 2008 in Boston Scientific v OHIM — Terumo (CAPIO), T‑325/06, EU:T:2008:338, paragraph 27).
15 In order to examine whether use of an earlier trade mark is genuine, an overall assessment must be carried out which takes account of all the relevant factors in 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 (judgments in VITAFRUIT, paragraph 14 above, EU:T:2004:225, paragraph 42, and 8 July 2004 in MFE Marienfelde v OHIM — Vétoquinol (HIPOVITON), T‑334/01, ECR, EU:T:2004:223, paragraph 36).
16 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 concerned (judgments of 12 December 2002 in Kabushiki Kaisha Fernandes v OHIM — Harrison (HIWATT), T‑39/01, ECR, EU:T:2002:316, paragraph 47, and 6 October 2004 in Vitakraft-Werke Wührmann v OHIM — Krafft (VITAKRAFT), T‑356/02, ECR, EU:T:2004:292, paragraph 28).
Use of the contested mark for the services concerned
17 By the first and second parts of the single plea which relate to the use of the contested mark claimed for the services concerned, and which the Court considers appropriate to examine together, the applicant claims, in essence, that there is no proof that the contested mark was actually used as a trade mark for each of the services in respect of which it was maintained. According to the applicant, it is reasonable to make sub-divisions that actually reflect the evidence of use which has been submitted. The Board of Appeal wrongly entered into considerations of ‘wireless broadband services’. In finding that all the services concerned are wireless broadband services, the Board of Appeal applied an incorrect test in order to assess genuine use of the contested mark.
18 OHIM and the intervener dispute the applicant’s arguments.
19 In that regard, in order to answer the question whether a trade mark has been put to genuine use, it is settled case-law that it cannot be ruled out that an accumulation of evidence may allow the necessary facts to be established, even though each of those pieces of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (see, to that effect, judgments of 17 April 2008, Ferrero Deutschland v OHIM, C‑108/07 P, EU:C:2008:234, paragraphs 36 and 37; 19 April 2013, Luna v OHIM — Asteris (Al bustan), T‑454/11, EU:T:2013:206, paragraph 36; and 30 September 2014, Scooters India v OHIM — Brandconcern (LAMBRETTA), T‑132/12, EU:T:2014:843, paragraph 25). Furthermore, it must be recalled that, according to Article 42(2) of Regulation No 207/2009, the assessment of whether an earlier Community trade mark has been put to genuine use must be carried out in respect of the goods or services for which it is registered.
20 As regards, first, the use of the contested mark for the services concerned, the intervener submitted extensive evidence in the course of the procedure before OHIM. That evidence includes, inter alia, images of modems and of broadband cards to which the contested mark had been affixed, lists of equipment supplied to customers, extracts from databases detailing visits made by company engineers to customers, including those for the collection or delivery of modems, extracts from web pages listing the electronic network access services provided under the contested mark, extracts from press articles and from advertising campaigns. It is apparent, in particular, from the terms and conditions in the customer agreement, as well as from the web pages, that UK Broadband Ltd, a company which belongs to the same group as the intervener, supplied access to electronic networks (not limited to the Internet), rental services in respect of software and ‘gateway’ devices and information to its customers under the contested mark during the relevant period. Those pieces of evidence, taken together, demonstrate use of the contested mark, at least in part of the European Union.
21 Admittedly, it must be pointed out that the assessment of genuine use must be based on the services as specified in the application for registration and not on a possible marketing concept. The Board of Appeal was therefore wrong to find, in paragraph 33 of the contested decision, that ‘all these services would form part of the service package known as “wireless broadband”’. It appears that the contested mark was registered for the services concerned and does not cover ‘wireless broadband’ as such. Nevertheless, the items of evidence analysed by the Board of Appeal and listed in paragraph 20 above establish use of the contested mark for all the services concerned.
22 The first part of the applicant’s plea must therefore be rejected as unfounded.
23 As regards, secondly, the applicant’s arguments that the protection granted to the contested mark in respect of the services concerned should apply to a narrower category of services, namely the broadband services supplied by the proprietor of the contested mark or the provision of specific Internet services, the following case-law must be recalled.
24 If a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub-categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection only for the sub-category or sub-categories to which the goods or services for which the trade mark has actually been used belong (see, to that effect, judgments of 14 July 2005 in Reckitt Benckiser (España) v OHIM — Aladin (ALADIN), T‑126/03, ECR, EU:T:2005:288, paragraph 45, and 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, ECR, EU:T:2007:46, paragraph 23).
25 However, while the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. In that regard, it should be observed that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub-categories (judgment in ALADIN, paragraph 24 above, EU:T:2005:288, paragraph 46).
26 Those principles mean that it is not necessary, in the present case, to define a sub-category of services as claimed by the applicant. It is apparent from the descriptions of the services listed inter alia on the pages taken from the Internet site and the related service agreement, contained in the evidence presented to OHIM, that these constituted electronic network access services and the leasing of software and equipment for that purpose. In so far as the applicant criticises the Board of Appeal for failing to assess the genuine use of the contested mark for each sub-category for which that mark is registered, it must be stated that it is apparent from paragraphs 33 and 34 of the contested decision that the Board of Appeal took into account the purpose and use of each of those services before coming to the conclusion that it would not be reasonable to make significant sub-divisions within the category concerned.
27 It should be observed that, since consumers are searching primarily for a product or service which can meet their specific needs, the purpose or intended use of the product or service in question is vital in directing their choices. Consequently, since consumers do employ the criterion of the purpose or intended use before making any purchase, it is of fundamental importance in the definition of a sub-category of goods or services (judgment in RESPICUR, paragraph 24 above, EU:T:2007:46, paragraph 29). The applicant wrongly relies on all the possible variations of the services at issue, such as the provision of information by subject-matter, in order to justify their division into sub-categories even though such a criterion does not feature among the case-law criteria which would allow the formation of coherent sub-categories.
28 In the present case, the consumers seek electronic network access services as a bundle and not as individual services. As the Board of Appeal noted in paragraph 31 of the contested decision, suppliers of access to IT networks install equipment such as routers, modems and software drivers to enable such access and also offer helpdesk, information or consultancy services to help customers to install the equipment or overcome technical problems. In the present case, the statutory declaration of Mr T., Operations Director of UK Broadband, produced before OHIM, states that the services provided by that company under the contested mark during the relevant period included, first, the installation of modems, broadband cards and associated software by engineers in order to enable their customers to access secured electronic networks, the Internet and virtual private networks and, secondly, call-out visits to resolve problems encountered by their customers with those modems and that software. The services concerned all meet the same need. For example, Internet access and Internet services cannot be provided without a modem or a similar device. It is clear that the end-user of each of the services concerned is the same consumer who wishes to access the electronic networks and who relies on all of those services for that purpose. It would be therefore arbitrary to divide the services concerned into sub-categories.
29 As regards the applicant’s argument based on the ‘fair description principle’, as applied by the Intellectual Property Office (United Kingdom), it must be pointed out that it cannot, as such, be relevant to the assessment of the present case. The Community trade mark scheme is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system. Accordingly, OHIM and, if appropriate, the European Union judicature are not bound by decisions given in the Member States, which constitute only one factor, without being given decisive weight, which may be taken into consideration in invalidity proceedings relating to a Community trade mark (see judgment of 27 February 2002 in Streamserve v OHIM (STREAMSERVE), T‑106/00, ECR, EU:T:2002:43, paragraph 47 and the case-law cited). Moreover, it is clear from the extract of Decision O/262/06 of the Intellectual Property Office (UK) in NIRVANA contained in Annex A4 to the application, that the hearing officer found that ‘the approach adopted by the English courts … [was] broadly consistent with that adopted by the [General Court] in [the judgment in ALADIN, paragraph 24 above, EU:T:2005:288]’.
30 Consequently, the second part of the applicant’s plea must be rejected.
Use with the proprietor’s consent
31 The applicant claims, in essence, that the Board of Appeal wrongly presumed consent in respect of use of the contested mark for all of the services concerned, contrary to the express consent indicated in the contract between the intervener and its licensee which limited the use of that mark to wireless broadband services.
32 OHIM and the intervener contest the applicant’s arguments.
33 According to Article 15(2) of Regulation No 207/2009, use of the Community trade mark with the consent of the proprietor shall be deemed to constitute use by the proprietor.
34 It follows that it is for the proprietor of the trade mark to furnish proof that he consented to the use of that trade mark by a third party (judgment of 11 May 2006 in Sunrider v OHIM, C‑416/04 P, ECR, EU:C:2006:310, paragraph 44).
35 It must be pointed out, taking into account the significance of the effect of its extinction of the exclusive rights of the proprietor of the Community mark to use that mark, the consent must be expressed in such a way that an intention to renounce that right is unequivocally demonstrated. Such an intention generally follows from an express giving of consent. However, it is conceivable that consent may, in some cases, be inferred from facts and circumstances prior to, simultaneous with or subsequent to the use of the mark at issue by a third party which unequivocally demonstrate that the proprietor has renounced his rights (see judgment of 13 January 2011 in Park v OHIM — Bae (PINE TREE), T‑28/09, EU:T:2011:7, paragraph 61 and the case-law cited).
36 In addition, it must be recalled that, when the proprietor of a Community mark maintains that the use of that trade mark by a third party constitutes genuine use for the purposes of Article 15 of Regulation No 207/2009, he claims, by implication, that he consented to that use (see, by analogy, judgment in VITAFRUIT, paragraph 14 above, EU:T:2004:225, paragraph 24).
37 In the present case, it is not contested that the intervener is the proprietor of the contested mark, which is used in connection with the services offered by UK Broadband. In that regard, it must be pointed out that it is for the intervener, the proprietor of the contested mark, to furnish evidence of its consent to the use of that mark by UK Broadband for all the services concerned.
38 As regards the intervener’s claim that it consented to all of the uses of the contested mark by UK Broadband, it must be noted that the use of a trade mark by a company which is economically linked to the proprietor of the mark is presumed to be use of that mark with the consent of the proprietor and is therefore to be deemed to constitute use by the proprietor, in accordance with Article 15(2) of Regulation No 207/2009 (judgment of 17 February 2011 in J & F Participações v OHIM — Plusfood Wrexham (Friboi), T‑324/09, EU:T:2011:47, paragraph 32). In his statutory declaration, Mr S., the senior group legal advisor to PCCW Ltd, the ultimate parent company of UK Broadband, confirms that the intervener and UK Broadband are subsidiaries of the same parent company and that UK Broadband uses the contested mark with the intervener’s consent. Furthermore, as the Board of Appeal correctly found in paragraph 38 of the contested decision, the evidence of use of the contested mark derives from UK Broadband.
39 It is true that, as the applicant claims, the licensing agreement concluded by the intervener conferring the right to use the contested mark on UK Broadband states that use is permitted in the context of its ‘business’, namely the supply of wireless broadband services. Nevertheless, paragraph 3.A of that agreement also provides that the licensee can use that mark ‘in the rendition of all appropriate services and activities associated with the operation of the Business’. The applicant is therefore incorrect in claiming that the consent expressly granted concerned wireless broadband services and that that express consent expressly excluded any other consent.
40 It follows from the aforementioned considerations that the licensing agreement does not limit the use of the contested mark only to wireless broadband services. As is apparent from paragraphs 20 and 21 above, the use of the contested mark by the applicant’s licensee had been demonstrated for all of the services concerned. Before the adjudicating bodies of OHIM, as well as before the General Court, the intervener relied upon acts of use of the contested mark by its licensee as evidence of its genuine use. Those factors formed a sufficiently firm basis to allow the conclusion that the contested trade mark had been used with its proprietor’s consent.
41 It follows that the third part of the single plea must be rejected as unfounded.
The extent of the use
42 The applicant asserts that the evidence submitted by the proprietor of the contested mark does not demonstrate the extent of that use. According to the applicant, the evidence adduced by the proprietor of the mark proves only use for wireless broadband services in the pilot areas of London and south of London. There is no evidence of use in those geographical areas relating to information, Internet services, electronic information networks or databases in Class 42.
43 OHIM and the intervener contest the applicant’s arguments.
44 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. 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 15 September 2011 in centrotherm Clean Solutions v OHIM — Centrotherm Systemtechnik (CENTROTHERM), T‑427/09, ECR, EU:T:2011:480, paragraph 25 and the case-law cited).
45 Although the concept of genuine use therefore 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, nevertheless 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 in CENTROTHERM, paragraph 44 above, EU:T:2011:480, paragraph 26 and the case-law cited).
46 In addition, it is apparent from the case-law that the territorial borders of the Member States should be disregarded in the assessment of ‘genuine use in the [European Union]’ within the meaning of Article 15(1) of Regulation No 207/2009 (judgment in Leno Merken, C‑149/11, ECR, EU:C:2012:816, paragraph 44).
47 Since the assessment of whether the use of the trade mark is genuine is carried out by reference to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark serves to create or maintain market shares for the goods or services for which it was registered, it is impossible to determine, and in the abstract, what territorial scope should be chosen in order to determine whether the use of the mark is genuine or not. A de minimis rule, which would not allow the European Union judicature to appraise all the circumstances of the dispute before it, cannot therefore be laid down (see judgment in Leno Merken, paragraph 46 above, EU:C:2012:816, paragraph 55 and the case-law cited).
48 The question whether the Board of Appeal was correct to consider that the evidence adduced by the intervener showed genuine use of the contested mark for the services concerned must be assessed in the light of those considerations.
49 In paragraph 46 of the contested decision, the Board of Appeal took the view that, in view of the evidence provided, including the press cuttings and the list of the destinations of the proprietor’s field engineers, the intervener proved genuine use of the contested mark in the Thames Valley during the relevant period. In paragraph 47 of the contested decision, it found that significant weight must be assigned to use of the mark in London, which is the largest city in the United Kingdom and the largest urban area in the European Union. Having regard, in particular, to the evidence relating to an advertising campaign carried out on a national radio station in 2005, it considered, in paragraphs 48 and 49 of the contested decision, that the use of the mark in the geographical area comprising London and the Thames Valley was sufficient to constitute genuine use in the European Union.
50 First, it must be noted that the applicant does not dispute the duration of the use of the contested mark. In so far as the applicant claims that that use does not extend to all the services concerned, it repeats, in essence, the same arguments as those already rejected in the examination of the first and second parts of the single plea.
51 Secondly, it must be noted that the Board of Appeal carried out an overall assessment of the documents in the file, taking account of all the relevant factors in the present case and having regard to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real.
52 The Board of Appeal examined the list, provided by the intervener, of thousands of clients who received equipment in connection with their service agreement. The extract from the company database detailing visits made by company engineers, referred to in paragraph 43 of the contested decision, states, by way of example, that in 2007, a UK Broadband engineer made a technical visit to a user in Reading in the county of Berkshire (United Kingdom). The summary of engineers’ visits and the collection or delivery of modems for a week in March 2009, also referred to in paragraph 43 of the contested decision, shows that those visits took place to the west of London and in the Thames Valley. In addition, the Board of Appeal examined hundreds of engineer’s schedules dating from August 2006 to January 2010, which, according to the statutory declaration of Mr T., concern the field-support team. The Board of Appeal also took into account web page extracts showing the nature of the services provided under the contested mark, as well as press cuttings relating to that mark and published in the relevant territory. Those clippings are taken from publications distributed in London (including Ealing and Islington), Maidenhead, Reading and Slough (United Kingdom). Finally, the Board of Appeal took into account the advertising campaigns submitted by the intervener, including a broadcast on national radio, as well as promotions held in Reading. In those circumstances, those elements enabled the Board of Appeal to reach the conclusion that the extent of the use of the contested mark was fairly significant, as the requirement of such use does not seek to assess the commercial success of the undertaking in question (see the case-law cited in paragraph 45 above).
53 Accordingly, the Board of Appeal was correct to find, in accordance with the case-law cited in paragraph 47 above, having regard to all the facts and circumstances relevant to establishing the reality of the commercial exploitation of the contested mark, that that mark had been put to genuine use in London and the Thames Valley.
54 The arguments raised by the applicant cannot invalidate that conclusion.
55 First, the applicant’s argument that the evidence does not show any use in the Thames Valley outside the Middlesex area has no basis in fact. As is apparent from the evidence listed in paragraph 52 above, genuine use of the contested mark has also been demonstrated in the county of Berkshire.
56 Secondly, the applicant’s argument that the actual use submitted did not even cover the whole of London cannot be accepted. As is apparent from the evidence relating to the advertising campaigns, they consisted of a campaign on national radio and a press campaign in the publication Metro, which is distributed throughout London.
57 Thirdly, as regards the applicant’s argument that to claim services such as information provided online from a computer database or from the Internet would presuppose a wide range of users through a wide geographical area, it is not supported by probative evidence. In any event, it must be recalled that the purpose of the requirement of genuine use is not intended to assess the commercial success of the undertaking in question (see the case-law cited in paragraph 45 above) and that, in the light of the foregoing considerations, the Board of Appeal was correct to find that there was genuine use in the present case.
58 It follows that the fourth part of the single plea must be rejected as unfounded.
59 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
60 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
61 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM and the intervener.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Now Wireless Ltd to pay the costs.
Frimodt Nielsen | Dehousse | Collins |
Delivered in open court in Luxembourg on 30 January 2015.
[Signatures]