JUDGMENT OF THE GENERAL COURT (Second Chamber)
24 September 2025 (*) (1)
( EU trade mark – Revocation proceedings – International registration designating the European Union – Figurative mark representing eight inverted black chevrons – Genuine use of the mark – Article 18(1)(a) and Article 58(1)(a) of Regulation (EU) 2017/1001 – Nature of use of the mark – Form differing in elements that do not alter the distinctive character of the mark – Cross-claim – Subject matter of the action – Interest in bringing proceedings – Admissibility )
In Case T‑32/24,
Barry’s Bootcamp Holdings LLC, established in Miami, Florida (United States), represented by M. Hawkins, T. Dolde and C. Zimmer, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Hummel Holding A/S, established in Aarhus (Denmark), represented by S. Pedersen, lawyer,
THE GENERAL COURT (Second Chamber),
composed, at the time of the deliberations, of A. Marcoulli, President, J. Schwarcz (Rapporteur) and L. Spangsberg Grønfeldt, Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 9 January 2025,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Barry’s Bootcamp Holdings LLC, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 November 2023 (Joined Cases R 1415/2022‑2 and R 1421/2022‑2) (‘the contested decision’).
I. Background to the dispute
2 On 13 December 2006, the intervener, Hummel Holding A/S, obtained, from the World Intellectual Property Organization (WIPO), an international registration designating the European Union for the following figurative sign:
3 On 6 December 2007, EUIPO received notification of the abovementioned international registration, pursuant to 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).
4 The goods and services designated by the international registration were in Classes 3, 18, 25, 28 and 35 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 corresponded, for each of those classes, to the following description:
– Class 3: ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’;
– Class 18: ‘Leather and imitations of leather and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery, bags including bags for sports, travelling sets (leatherware) and vanity cases (not fitted), rucksacks and cases (not included in other classes)’;
– Class 25: ‘Clothing, footwear, headgear; sports clothing, footwear and headgear; leisure clothing, footwear and headgear; business clothing, footwear and headgear; fashion clothing, footwear and headgear’;
– Class 28: ‘Games and playthings; gymnastic and sporting articles not included in other classes; decorations for Christmas trees, balls for sports and games’;
– Class 35: ‘Advertising; business management; business administration; office functions; the bringing together, for the benefit of others, of a variety of goods (excluding the transport thereof), enabling customers to conveniently view and purchase those goods; retail trade of clothing, footwear and headgear, sporting articles, and bags’.
5 On 13 May 2019, the applicant filed with EUIPO an application for revocation of the international registration pursuant to Article 58(1)(a) of Regulation 2017/1001 in respect of all the goods and services referred to in paragraph 4 above.
6 On 1 June 2022, the Cancellation Division upheld the application for revocation in part on the ground that the extent of use of the contested international registration had not been demonstrated for all the goods and services in Classes 3, 18, 28 and 35 and for the following goods in Class 25: ‘Clothing except sports clothing, leisure clothing and fashion clothing; footwear, headgear; sports footwear and headgear; leisure footwear and headgear; business clothing, footwear and headgear; fashion footwear and headgear’.
7 The Cancellation Division therefore found that the contested international registration remained valid for the remaining goods in Class 25 corresponding to the following description: ‘Clothing, namely sports clothing, leisure clothing and fashion clothing; sports clothing; leisure clothing; fashion clothing’ (‘the goods at issue’).
8 On 1 August 2022, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division, registered under number R 1415/2022‑2, in so far as it revoked the contested international registration in relation to ‘bags for sports’ in Class 18 and ‘footwear; sports footwear; leisure footwear’ in Class 25.
9 On the same day, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division, registered under number R 1421/2022‑2, in so far as it rejected the application for revocation in respect of the goods at issue.
10 By the contested decision, the Board of Appeal joined the appeals in Cases R 1415/2022‑2 and R 1421/2022‑2 pursuant to Article 35(5) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), on the ground that they were filed against the same decision of the Cancellation Division. Furthermore, the Board of Appeal upheld the decision of the Cancellation Division and, therefore, dismissed the appeals in Cases R 1415/2022‑2 and R 1421/2022‑2 and ordered the applicant and the intervener each to bear their own costs.
11 In particular, the Board of Appeal found that the evidence submitted by the intervener, as a whole, showed genuine use of the contested international registration during the relevant period, namely from 13 May 2014 to 12 May 2019 inclusive, only for the goods at issue. In that regard, first, the Board of Appeal considered that the evidence of use of the contested international registration as registered was limited. However, it held that evidence of the sale of various clothing products under variants of that international registration, which do not alter its distinctive character, that is to say, where it was represented in a reversed colour scheme or in the form of black chevrons against a coloured background, should also be taken into account. The Board of Appeal also rejected the evidence showing the use of signs consisting of a different number of chevrons or chevrons facing horizontally. Secondly, the Board of Appeal found that the evidence in the file and, in particular, the invoices produced by the intervener, read in conjunction with the catalogues for its collections, demonstrated that, during the five-year period preceding the date of the application for revocation, hundreds of clothing articles had been sold in several Member States to which the contested international registration was affixed as registered or in forms that do not alter its distinctive character. The Board of Appeal essentially held that that evidence was sufficient to prove use of the contested international registration as an indicator of commercial origin for the goods at issue.
II. Forms of order sought
12 The applicant claims, in essence, that the Court should:
– annul the contested decision in so far as it dismissed its appeal against the decision of the Cancellation Division of 1 June 2022;
– dismiss the cross-claim;
– order EUIPO and the intervener to pay the costs;
– order the intervener to pay the costs relating to the cross-claim.
13 EUIPO contends that the Court should:
– dismiss the action and cross-claim in their entirety;
– order the applicant to bear the costs of the action and the intervener to bear the costs of the cross-claim in the event that an oral hearing is convened.
14 The intervener contends, in essence, that the Court should:
– dismiss the main action in its entirety;
– annul the contested decision in so far as it dismissed its appeal against the decision of the Cancellation Division of 1 June 2022;
– order the applicant to pay the costs, including those incurred before the Board of Appeal.
III. Law
A. The main action
15 In support of the main action, the applicant relies on two pleas in law alleging, first, infringement of Article 94(1) of Regulation 2017/1001 and, secondly, infringement of Article 58(1)(a) thereof.
1. The first plea, alleging infringement of Article 94(1) of Regulation 2017/1001
16 The applicant complains that the Board of Appeal infringed the obligation to state reasons since, in the contested decision, it failed to address its argument that the use of the contested international registration on clothing items, in a manner similar to a position mark whose registration was rejected by decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2), could not be considered as use as a trade mark and constituted, at most, mere decorative use. Furthermore, no reference is made in the contested decision either to the specific goods for which there was genuine use of the contested international registration or to the specific evidence showing such use.
17 EUIPO and the intervener dispute the applicant’s arguments.
18 According to Article 94(1) of Regulation 2017/1001, decisions of EUIPO are to state the reasons on which they are based.
19 The duty to state reasons thus enshrined has the same scope as that deriving from Article 296 TFEU. It is settled case-law that the statement of reasons required by that article must set out clearly and unequivocally the reasoning of the author of the act, in order to enable interested parties to know the purported justification for the measure taken and to enable the EU judicature to exercise its power of review (see judgments of 11 December 2014, CEDC International v OHIM – Underberg (Shape of a blade of grass in a bottle), T‑235/12, EU:T:2014:1058, paragraph 42 and the case-law cited, and of 7 July 2021, Ardagh Metal Beverage Holdings v EUIPO (Combination of sounds on opening a can of soft drink), T‑668/19, EU:T:2021:420, paragraph 63 and the case-law cited).
20 The Board of Appeal is not obliged to express a view on every argument submitted by the parties. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 29 November 2016, Chic Investments v EUIPO (eSMOKING WORLD), T‑617/15, not published, EU:T:2016:679, paragraph 102 and the case-law cited).
21 Furthermore, having regard to the continuity, in terms of their functions, between the Cancellation Division and the Board of Appeal, the statement of reasons for the decision of the Cancellation Division forms part of the context in which the contested decision was adopted, which is known to the applicant and enables the EU judicature to carry out fully its judicial review (see, to that effect and by analogy, judgments of 22 September 2016, Sun Cali v EUIPO – Abercrombie & Fitch Europe (SUN CALI), T‑512/15, EU:T:2016:527, paragraph 46, and of 30 June 2021, Wolf Oil v EUIPO – Rolf Lubricants (ROLF), T‑531/20, not published, EU:T:2021:406, paragraph 79 and the case-law cited).
22 First, as regards the alleged failure to address the applicant’s argument that the use of the contested international registration on clothing items is purely decorative and is similar to that of a previous position mark whose registration was rejected by decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2), it must be borne in mind that the contested decision confirmed the decision of the Cancellation Division and that, therefore, the grounds set out in that decision must be taken into consideration for the purposes of examining the present plea. It is apparent from paragraph 7 of the contested decision that the Cancellation Division had ruled out the relevance of the decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2), because the sign at issue in that case was a position mark situated in a very specific place on sleeves of shirts, whereas the contested international registration was a figurative sign.
23 Furthermore, in paragraph 68 of the contested decision, the Board of Appeal rejected the relevance of the decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2), noting that the registration of the sign at issue in that case had been rejected on the ground that it was perceived as a decorative element because of its position along a sleeve, whereas the contested international registration was not a position mark showing a sequence of an indefinite number of chevrons placed on a jacket sleeve, but a figurative mark consisting of eight identical chevrons.
24 Furthermore, after noting, in the contested decision, that the contested international registration enjoyed a presumption of validity and that it had a ‘somewhat below average’ distinctive character (paragraphs 64, 71 and 72 of the contested decision), the Board of Appeal examined whether that international registration had been used, in its registered form or in forms that did not alter its distinctive character, as an indicator of the commercial origin of the goods at issue. In that context, the Board of Appeal excluded the use of the contested international registration as a decorative surface pattern (paragraphs 94 to 102 of the contested decision) and, after noting that, in the clothing sector, it was usual to place the mark on the exterior of the goods and to the labels sewn on the inside of them, it found that the contested international registration was placed on the clothing items themselves in a clearly visible manner and on the cover of the Hummel Sport 2017 catalogue. The Board of Appeal concluded that that international registration was presented as an indicator of the commercial origin of the goods at issue (paragraphs 113 and 120 of the contested decision).
25 Therefore, the Board of Appeal set out to the requisite legal standard the reasons why it considered, first, that the decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2) was not relevant in the present case and, secondly, that the contested international registration had been used as a trade mark and not as a purely decorative element.
26 Secondly, as regards the alleged lack of indication, in the contested decision, of the specific goods in respect of which genuine use of the contested international registration had occurred and of the specific evidence establishing such use, on the one hand, it must be noted that the Board of Appeal stated that genuine use of the contested international registration had been demonstrated in respect of various items of clothing and, at least, for tops, sweatshirts, sweatpants and jackets, which, in essence, fall without distinction within the following subcategories: ‘sports clothing’, ‘leisure clothing’ and ‘fashion clothing’ (paragraphs 135 and 137 of the contested decision).
27 On the other hand, as regards the specific evidence of use on which the Board of Appeal based its analysis, it must be stated that the contested decision expressly mentions market research, the written statements of several of the intervener’s customers (paragraphs 46 and 49 of the contested decision), several invoices produced by the intervener (paragraphs 50, 77, 81, 105, 109 and 110 of the contested decision), the intervener’s spring/summer 2017 catalogue (paragraph 52 of the contested decision) and the statement of the Deputy Director of the Danish Football Association (paragraphs 119 to 129 of the contested decision). Lastly, it is apparent from the scheme of the contested decision and, in particular, from paragraph 130 thereof, that it was in the light of all the evidence in the file that the Board of Appeal concluded that there had been genuine use of the contested international registration.
28 In view of the above, the contested decision clearly indicates the goods for which genuine use of the contested international registration has been shown and the evidence that, according to the Board of Appeal, demonstrates such use.
29 Furthermore, if the applicant’s arguments alleging a lack of indication in the contested decision of the goods in respect of which there had been genuine use of the contested international registration and specific evidence establishing such use were to seek to challenge the insufficiency of the evidence on which the Board of Appeal based the contested decision and, therefore, the merits of that decision, such a complaint would have to be rejected as ineffective for the purposes of examining the first plea alleging infringement of the obligation to state reasons. The obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue (see judgment of 14 December 2022, SY v Commission, T‑312/21, EU:T:2022:814, paragraph 46 (not published) and the case-law cited).
30 For the same reason, it is necessary to reject as ineffective the arguments put forward by the applicant in support of the first plea, according to which, first, the Board of Appeal did not provide any analysis or evidence concerning the duration of use, the relevant territory and the number of sales for the items of clothing referred to in paragraph 52 of the contested decision and, secondly, the Board of Appeal relied, in the remainder of the contested decision, on the sale of five items that had not previously been mentioned, which seek to challenge the merits of that decision.
31 In the light of all the foregoing, it must be held that the reasons why the Board of Appeal concluded that the contested international registration, affixed to clothing goods, was used as a trade mark, together with the goods in respect of which it found that genuine use of the contested international registration had been established and the evidence on which it relied, are apparent to the requisite legal standard from the contested decision.
32 Consequently, the first plea in law must be rejected.
2. The second plea, alleging infringement of Article 58(1)(a) of Regulation 2017/1001
33 The applicant disputes the Board of Appeal’s assessment that the intervener provided evidence of genuine use of the contested international registration for the goods at issue during the relevant period. The second plea comprises, in essence, four parts. In the first part, the applicant claims that the Board of Appeal erred in law by failing to establish genuine use in respect of each of the goods at issue. In the second part, the applicant complains that the Board of Appeal considered evidence relating to variants of the contested international registration that altered its distinctive character. In the third part, the applicant complains that the Board of Appeal found that the use of the contested international registration on the goods at issue was perceived as an indicator of their commercial origin, even though that use was purely decorative. In the fourth part, the applicant claims, in essence, that the evidence referred to in the contested decision is not sufficient to establish the extent of use of the contested international registration.
(a) The first part of the second plea, alleging lack of proof of genuine use in respect of each of the goods at issue
34 The applicant complains that the Board of Appeal, in essence, erred in law in that it assessed the conditions for genuine use as a whole instead of verifying whether those conditions were satisfied in respect of each model of clothing goods in Class 25 that was referred to in the evidence submitted by the intervener before the adjudicating bodies of EUIPO. In particular, it submits that the Board of Appeal did not provide any analysis or evidence concerning the duration of use, the relevant territory and the number of sales for the items of clothing referred to in paragraph 52 of the contested decision.
35 EUIPO, supported by the intervener, disputes the applicant’s arguments.
36 Article 58(1)(a) of Regulation 2017/1001 provides that the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
37 Article 10(3) of Delegated Regulation 2018/625, applicable to revocation proceedings pursuant to Article 19(1) thereof, provides, inter alia, that evidence of use of a trade mark must relate to the place, time, extent and nature of use of the trade mark.
38 As is clear from the case-law, in the context of assessing proof of genuine use of a trade mark, Article 10 of Delegated Regulation 2018/625 does not state that each piece of evidence must necessarily give information about all four elements to which proof of genuine use must relate, namely the place, time, nature and extent of use (judgment of 16 November 2011, Buffalo Milke Automotive Polishing Products v OHIM – Werner & Mertz (BUFFALO MILKE Automotive Polishing Products), T‑308/06, EU:T:2011:675, paragraph 61). The question whether a trade mark has been put to genuine use requires that an overall assessment be carried out, taking into account all the relevant factors. That assessment entails a degree of interdependence between the factors taken into account (see, to that effect, judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 36, and 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 42). Thus each piece of evidence is not to be analysed separately, but rather together, in order to determine the most likely and coherent meaning. In the course of such an analysis, it cannot be excluded that a body of evidence will enable proof of the facts to be established, even though each of those items of evidence, taken in isolation, would not be capable of proving those facts (see judgment of 16 June 2015, Polytetra v OHIM – EI du Pont de Nemours (POLYTETRAFLON), T‑660/11, EU:T:2015:387, paragraph 94 and the case-law cited).
39 In the present case, the Board of Appeal found that use of the contested international registration had been established on the basis of the evidence provided by the intervener before the adjudicating bodies of EUIPO, including that referred to in paragraph 27 above, showing that, from 2015 to 2019, more than 800 items of casual or sports clothing to which the international registration at issue was affixed, in its registered form or represented with a different combination of colours, were sold in various Member States (paragraphs 105, 110, 123, 130, 135 and 138 of the contested decision).
40 In accordance with the case-law cited in paragraph 38 above, it must be held that the Board of Appeal did not err in law in assessing the evidence submitted by the intervener as a whole and in examining whether there had been genuine use of the contested international registration in relation to the goods at issue and not in relation to each specific model of clothing mentioned in that evidence.
41 Accordingly, the first part of the second plea in law must be rejected.
(b) The second part of the second plea, alleging, in essence, that evidence relating to variants of the contested international registration that altered its distinctive character was taken into account
42 The applicant complains that the Board of Appeal found that the evidence produced by the intervener before the adjudicating bodies of EUIPO was sufficient to establish genuine use of the contested international registration in respect of the goods at issue. In that regard, the applicant claims that that evidence does not establish that goods bearing eight chevrons in the registered form were sold in the European Union during the relevant period. Furthermore, according to the applicant, the Board of Appeal erred in law by taking into account evidence relating to use of the contested international registration in forms that alter its distinctive character and that do not therefore meet the requirements laid down in Article 18(1)(a) of Regulation 2017/1001.
43 EUIPO and the intervener dispute the applicant’s arguments.
44 According to Article 18(1)(a) of Regulation 2017/1001, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered.
45 The purpose of Article 18(1)(a) of Regulation 2017/1001, which avoids imposing strict conformity between the form of the trade mark as used and the form in which the mark was registered, is to allow its proprietor, in the commercial exploitation of the sign, to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the sign used in trade differs from the form in which it was registered only in insignificant respects, and the two signs can therefore be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark which was registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (see judgments of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 18 and the case-law cited; of 8 June 2022, Muschaweck v EUIPO – Conze (UM), T‑293/21, EU:T:2022:345, paragraph 113 (not published) and the case-law cited; and of 16 November 2022, Epsilon Data Management v EUIPO – Epsilon Technologies (EPSILON TECHNOLOGIES), T‑512/21, not published, EU:T:2022:710, paragraph 23 and the case-law cited).
46 The finding of an alteration of the distinctive character of the registered mark requires an assessment of the distinctive and dominant character of the elements added, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the different elements within the arrangement of the trade mark (see judgments of 23 September 2020, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle), T‑796/16, EU:T:2020:439, paragraph 139 (not published) and the case-law cited, and of 8 June 2022, UM, T‑293/21, EU:T:2022:345, paragraph 114 (not published) and the case-law cited).
47 For the purposes of that finding, account must be taken of the inherent qualities and, in particular, the greater or lesser degree of distinctive character of the registered mark. The weaker the distinctive character, the easier it will be to alter it by adding a component that is itself distinctive, and the more the mark in question will lose its ability to be perceived as indicative of the origin of the product. The reverse is also true (see, to that effect, judgments of 13 September 2016, hyphen v EUIPO – Skylotec (Representation of a polygon), T‑146/15, EU:T:2016:469, paragraph 29 and the case-law cited, and of 23 September 2020, Shape of a blade of grass in a bottle, T‑796/16, EU:T:2020:439, paragraph 140).
48 Accordingly, the question whether a contested mark has been used in a form differing in elements that alter the distinctive character of that mark in the form in which it was registered calls for a two-stage analysis. It is necessary, first, to rule on the degree of distinctive character of that mark and then, secondly, to determine whether that distinctive character has been altered in the modified form of the mark (see, to that effect, judgments of 10 October 2017, Klement v EUIPO – Bullerjan (Form of an oven), T‑211/14 RENV, not published, EU:T:2017:715, paragraphs 37 and 38, and of 16 November 2022, EPSILON TECHNOLOGIES, T‑512/21, not published, EU:T:2022:710, paragraphs 24, 25 and 37).
(1) The degree of distinctiveness of the contested international registration
49 First, in paragraph 64 of the contested decision, the Board of Appeal noted that the contested international registration enjoyed a presumption of validity as a result of its registration and could not therefore be regarded as lacking distinctive character, which, moreover, the applicant has not disputed.
50 That assessment is in line with settled case-law according to which it is necessary to acknowledge a certain degree of distinctiveness of a registered trade mark and from which it follows that a registered trade mark cannot be regarded as generic, descriptive or devoid of any distinctive character, without calling into question its validity in revocation proceedings (see, to that effect, judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 43 and the case-law cited). Thus, in the present case, the contested international registration has at least a minimum degree of distinctiveness that cannot be called into question in the present revocation proceedings.
51 Secondly, in paragraph 71 of the contested decision, the Board of Appeal found that the degree of distinctiveness of the contested international registration was ‘somewhat below average’.
52 The applicant disputes that assessment, since it considers that the distinctive character of the contested international registration is, at most, low.
53 In that regard, it should be noted that the contested international registration is described, in the contested decision, as a purely figurative sign composed of eight identical black chevrons against a white background that form 90-degree angles pointing downwards and that are not basic geometric shapes. In the contested decision, the Board of Appeal also noted that that sign was characterised by the special outline of the chevrons, their number, their equal thickness, their equal width and the equal distance between them.
54 In the light of the abovementioned description of the contested international registration, which neither the applicant nor the intervener has called into question, the Board of Appeal did not make an error of assessment in finding that that international registration had ‘somewhat below average’ inherent distinctive character, irrespective even of whether, as the intervener claims, that international registration had enhanced distinctive character through use.
(2) The alleged alteration of the distinctive character of the contested international registration
55 It is apparent from paragraphs 42, 67 and 72 of the contested decision that the elements conferring distinctive character on the contested international registration are the special outline of the chevrons, their number, their equal thickness, their equal width and the equal distance between them. Furthermore, the Board of Appeal found that, in the evidence showing white chevrons against a black background or black chevrons against a coloured background, the distinctive characteristics of the contested international registration were not altered, since the colour variations are decorative in nature (paragraphs 73, 74, 78 and 79 of the contested decision).
56 The applicant complains that the Board of Appeal, in essence, did not include the combination of colours resulting from the representation of black chevrons against a white background among the distinctive elements of the contested international registration and, therefore, made an error of assessment in finding that a change in those colours did not alter its distinctive character.
57 EUIPO and the intervener dispute the applicant’s arguments.
58 First, in paragraph 74 of the contested decision, the Board of Appeal correctly found that the black and white colours of the contested international registration were not particularly original or unusual.
59 It is clear from the case-law that such a combination of colours is banal, with the result that it cannot, on its own, confer on the contested international registration a characteristic likely to be perceived, by the relevant public, as an indication of the origin of the goods concerned (see, to that effect, judgments of 24 November 2005, GfK v OHIM – BUS (Online Bus), T‑135/04, EU:T:2005:419, paragraph 35; of 17 January 2018, Deichmann v EUIPO – Munich (Representation of a cross on the side of a sports shoe), T‑68/16, EU:T:2018:7, paragraph 66; and of 5 October 2022, Philip Morris Products v EUIPO (Representation of black and white lines), T‑502/21, not published, EU:T:2022:611, paragraph 22).
60 Therefore, the Board of Appeal did not make an error of assessment in not including the colour combination of the contested international registration among its distinctive elements.
61 Secondly, it must be observed, as the Board of Appeal did, that where evidence shows white chevrons against a black background, the main and distinctive characteristics of the chevrons represented in the contested international registration, namely their outline, the distance separating them, their thickness, their width and the contrast between the colours black and white, are maintained (paragraphs 72 and 73 of the contested decision).
62 Furthermore, as regards the evidence showing black chevrons against a brightly coloured or grey background, the Board of Appeal did not make an error of assessment in finding that the elements making up the contested international registration remained visible in the same arrangement and proportions and that the contrast between black chevrons against a lighter background was also maintained (paragraph 79 of the contested decision).
63 In the light of the considerations set out in paragraphs 49 to 62 above, it must be held that the Board of Appeal did not make an error of assessment in taking into account the evidence concerning the use of eight white chevrons against a black background or eight black chevrons against a coloured background, affixed vertically to trousers, shorts, T-shirts, long-sleeved T-shirts and jackets, since that use does not alter the distinctive character of the contested international registration.
64 The judgment of 19 June 2019, adidas v EUIPO – Shoe Branding Europe (Representation of three parallel stripes) (T‑307/17, EU:T:2019:427), relied on by the applicant, does not call that finding into question. In that judgment, the Court held that the Board of Appeal had been correct to reject the evidence showing the sign concerned in a reversed colour scheme since that variation was not insignificant in relation to the registered form of that sign, which had very few characteristics, was extremely simple and lacked inherent distinctive character (judgment of 19 June 2019, Representation of three parallel stripes, T‑307/17, EU:T:2019:427, paragraphs 10, 71, 76 and 77).
65 On the contrary, the contested international registration is not extremely simple and has a degree of inherent distinctiveness that is ‘somewhat below average’ (see paragraphs 53 and 54 above). Therefore, a variation in the colour scheme of the contested international registration does not have the same impact as in the case that gave rise to the judgment of 19 June 2019, Representation of three parallel stripes (T‑307/17, EU:T:2019:427).
66 Accordingly, the second part of the second plea in law must be rejected.
(c) The third part of the second plea, alleging lack of evidence of use of the contested international registration as a trade mark
67 In paragraph 113 of the contested decision, after noting that, in the clothing sector, it was usual to place the mark on the exterior of the goods and on the labels sewn on the inside of them, the Board of Appeal found that the contested international registration was affixed to the clothing articles themselves in a clearly visible manner and was placed on the cover of the Hummel Sport 2017 catalogue. The Board of Appeal concluded that the evidence established use of the contested international registration as a trade mark.
68 The applicant complains that the Board of Appeal held that the contested international registration, used in relation to the clothing goods mentioned in paragraphs 50, 77 and 81 of the contested decision, that is to say, shorts, trousers, tops and jackets, constituted use as a trade mark.
69 EUIPO and the intervener dis pute the applicant’s arguments.
70 It is clear from the case-law that 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 and services for which it is registered, in order to create or preserve an outlet for those goods and services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 39 and the case-law cited; see also, to that effect, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 36).
71 In the first place, it must be stated that the evidence produced by the intervener before the adjudicating bodies of EUIPO confirms that the contested international registration was used in the intervener’s product catalogues, in its registered form or in forms that do not alter its distinctive character, either alone or affixed to the goods referred to in those catalogues.
72 As the Board of Appeal correctly found in paragraph 122 of the contested decision, although there is no proof of distribution of those catalogues, the evidence must be seen as a whole.
73 Assessed in conjunction with the invoices produced by the intervener, those catalogues establish that the use of the contested international registration was outward with the aim of acquiring a commercial position on the relevant market for the goods at issue (paragraphs 121 and 122 of the contested decision).
74 As explained in paragraphs 50 and 123 of the contested decision, the catalogues produced by the intervener show articles of clothing bearing the contested international registration and to which correspond a unique model code and colour code that are also found in the invoices issued to customers of the intervener established in various Member States. Furthermore, since the unique model code is found in the invoices sent by the intervener to its customers, it is possible to identify the clothing models sold in the permissible variants of the contested international registration, as well as the corresponding volumes.
75 In the second place, it is apparent from the evidence submitted before the Cancellation Division that the contested international registration is affixed, in its registered form or in acceptable variants, to the clothing articles themselves and in a clearly visible manner.
76 According to the applicant, affixing the contested international registration to the clothing goods themselves does not constitute use as a trade mark, but purely decorative use.
77 First, in that regard, the applicant submits that the use of the contested international registration in a manner very similar to that of a previous position mark in respect of which registration was rejected by decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2) cannot be regarded as use as a trade mark.
78 On the one hand, it should be noted that the contested international registration was registered as a figurative mark and not as a position mark, which the applicant, moreover, acknowledged at the hearing. On the other hand, in paragraph 68 of the contested decision, the Board of Appeal correctly found that the sign at issue in the decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2), namely a sequence of an indefinite number of chevrons pointing downwards placed along the sleeve of a jacket, differs from the contested international registration, which consists of eight chevrons and does not contain any indication as to its position on the goods at issue.
79 Therefore, the applicant’s argument based, in essence, on an analogy between the contested international registration and the position mark at issue in the decision of the Second Board of Appeal of 2 November 2017 (Case R 1232/2017‑2) must be rejected.
80 Secondly, the applicant relies on the judgment of 4 May 2022, Deichmann v EUIPO – Munich (Representation of two crossed stripes on the side of a shoe) (T‑117/21, not published, EU:T:2022:271), which confirmed that simple graphic elements on shoes are not perceived as trade marks and the approach of which is, in essence, applicable to the present case.
81 In paragraph 61 of the judgment of 4 May 2022, Representation of two crossed stripes on the side of a shoe (T‑117/21, not published, EU:T:2022:271), the Court held that to accept that every geometric shape, even the most simple, has distinctive character because it features on the side of a sports shoe would make it possible for some manufacturers to appropriate simple, and above all decorative, shapes, which must remain accessible to everyone.
82 However, in the present case, the sign covered by the contested international registration is not a basic geometric figure and was not classified as a simple and banal shape by the Board of Appeal (see paragraphs 53 and 54 above).
83 Therefore, contrary to what the applicant claims, the approach adopted by the judgment of 4 May 2022, Representation of two crossed stripes on the side of a shoe (T‑117/21, not published, EU:T:2022:271), cannot be applied to the present case.
84 Thirdly, the applicant claims that, instead of educating the public to perceive the contested international registration as a mark by affixing it to clothing labels, the intervener deliberately chose to use it as a non-distinctive surface pattern by affixing it directly to that clothing. It adds that, in accordance with the case-law of the Court of Justice, signs that are indissociable from the appearance of the goods are generally unlikely to be perceived as an indication of origin.
85 It must be held that, in so far as that argument seeks to call into question the presumption of validity enjoyed by the contested international registration, it should be rejected for the reason set out in paragraphs 49 and 50 above.
86 Furthermore, it is apparent from the case-law that there is an inherent probability that a sign consisting of a repetitive sequence of elements will be used as a surface pattern and thus will be indissociable from the appearance of the goods concerned (judgment of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 41).
87 In that case, according to the case-law, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001 (judgment of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 33).
88 In the present case, the contested international registration depicts eight chevrons pointing downwards and covers clothing, namely fashion items that often have surface patterns. Therefore, the likelihood that it will be used as a surface pattern cannot be ruled out.
89 However, it must be stated that, in the present case, the use of the international registration as a surface pattern is not apparent from the evidence in EUIPO’s file and that the applicant merely relies on such use wit hout providing further details.
90 Therefore, the applicant has not shown that the contested international registration was used as a surface pattern.
91 Lastly, it must be stated that the applicant’s argument that, in essence, only use of the contested international registration on labels and hangtags could constitute use as a trade mark for clothing is in no way substantiated. Moreover, that argument is unfounded since it is well known that marks affixed directly to the surface of clothing may serve as indicators of the commercial origin of those goods.
92 In the light of all the foregoing, the applicant has failed to establish that there was any error vitiating the Board of Appeal’s assessment that the contested international registration was used as a trade mark in respect of the goods at issue.
93 Accordingly, the third part of the second plea in law must be rejected.
(d) The fourth part of the second plea, alleging lack of evidence of sufficiently extensive use of the contested international registration
94 The applicant claims, in essence, that the evidence referred to in the contested decision does not establish sufficiently extensive use of the contested international registration. In that regard, it submits that the intervener has proved only the sale of five items of a model of shorts to which eight black chevrons facing downwards are allegedly affixed, which is manifestly insufficient. Furthermore, it claims that the numbers of the invoices produced by the intervener do not pertain specifically to the contested international registration, nor to the shorts or other clothing items in question.
95 In the present case, after noting, in paragraph 46 of the contested decision, that the evidence concerning the use of the contested international registration in its registered form was limited in volume, the Board of Appeal took into consideration, in its examination of genuine use, the evidence concerning variants of the contested international registration that did not alter its distinctive character and, in particular, evidence showing eight black chevrons against a coloured or grey background (paragraphs 51 to 82 of the contested decision) and concluded, in essence, that that evidence showed extensive use of that international registration (paragraphs 115 to 130 of the contested decision).
96 It is apparent from paragraph 123 of the contested decision that the abovementioned conclusion is based, principally, on the invoices sent by the intervener to its customers, read in conjunction with its product catalogues (see paragraph 74 above). Furthermore, in paragraphs 127 to 129 of the contested decision, the Board of Appeal noted that other evidence produced by the applicant before the adjudicating bodies of EUIPO, such as the statement of the Deputy Director of the Danish Football Association and the written statement of the head of the purchasing department of a customer of the intervener, confirmed the extent of use of the contested international registration. In particular, the Board of Appeal found that the latter statement indicated that the goods bearing, inter alia, the contested international registration were sold through a network of more than 70 stores and a website for several decades, in particular during the period from 2012 to 2017, which was borne out by the invoices sent by the intervener to the abovementioned customer.
97 Those assessments appear to be justified in the light of the evidence referred to in the contested decision. Thus, the table reproduced in paragraph 81 of the contested decision provides an example of five models of sportswear (two pairs of sweatpants, one long-sleeved T-shirt and two jackets) showing eight black chevrons against a grey background, with an indication of the relevant model code, the number and date of the invoice, the quantities sold and the country of destination, from which it is apparent that more than 789 items were sold during the relevant period in more than five different Member States. Furthermore, the content of the statement by the head of the purchasing department of one of the intervener’s customers referred to in paragraph 96 above is borne out by an invoice dated 14 February 2016, referred to in the table in paragraph 81 of the contested decision, from which it appears that the intervener sold it 170 jackets of the model referred to in that table.
98 In the light of the foregoing, the applicant has not shown that the Board of Appeal’s assessment concerning the extent of use of the contested international reg istration is vitiated by error.
99 Since the fourth part of the second plea is unfounded, it must be rejected and, accordingly, the second plea in law must be rejected.
100 Since none of the pleas in law has been upheld, the main action is dismissed in its entirety.
B. The cross-claim
1. Admissibility of the cross-claim
101 By separate document lodged at the Registry of the General Court on 3 June 2024, the applicant lodged a plea of inadmissibility against the cross-claim under Article 130(1) of the Rules of Procedure of the General Court. In that regard, first, it argues that it follows from Article 184 of the Rules of Procedure that a cross-claim before the General Court is admissible only if it is directed against the same decision as that contested in the main action. In the contested decision, the Board of Appeal ruled on two separate appeals registered under numbers R 1415/2022‑2 and R 1421/2022‑2, which had been joined for administrative purposes. Thus, since the main action brought before the Court seeks the annulment of the contested decision in so far as it dismissed the action registered under number R 1421/2022‑2, the intervener is entitled to bring a cross-claim only against the decision ruling on that action. Secondly, the applicant submits that, since the contested decision in Case R 1421/2022‑2 found in favour of the intervener, the intervener has, in any event, no interest in bringing proceedings against that decision.
102 The intervener contends that the objection of inadmissibility should be rejected. When questioned at the hearing, EUIPO deferred to the Court’s discretion.
103 In the first place, under Article 184(1) of the Rules of Procedure, the cross-claim is to seek an order annulling or altering the decision of the Board of Appeal on a point not raised in the application.
104 First, it should be borne in mind that, in the present case, the applicant and the intervener had brought two separate appeals against the decision of the Cancellation Division of 1 June 2022, bearing the references R 1415/2022‑2 and R 1421/2022‑2.
105 In accordance with Article 67 of Regulation 2017/1001, the applicant and the intervener were automatically parties to the two parallel proceedings before the Board of Appeal.
106 Pursuant to Article 35(5) of Delegated Regulation 2018/625, the Board of Appeal examined the appeals in Cases R 1415/2022‑2 and R 1421/2022‑2 in the course of the same proceedings, at the end of which it adopted the contested decision.
107 In the contested decision, the Board of Appeal therefore ruled on the appeals in Cases R 1415/2022‑2 and R 1421/2022‑2 directed against the same decision of the Cancellation Division and involving the same parties.
108 Secondly, by the main action, the applicant asks the Court to annul the contested decision in so far as the Board of Appeal dismissed the appeal in Case R 1421/2022‑2. The cross-claim, for its part, seeks the annulment of the contested decision in so far as the Board of Appeal decided therein to dismiss the action in Case R 1415/2022‑2.
109 It follows that the cross-claim seeks the annulment of the contested decision on a point not raised in the application within the meaning of Article 184(1) of the Rules of Procedure.
110 Thus, the applicant incorrectly claims that the cross-claim relates, in essence, to a decision separate from that contested in the main action, in breach of the abovementioned article.
111 In the second place, according to the Court’s settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 37 and the case-law cited).
112 In the present case, the cross-claim seeks the annulment of the contested decision in so far as it dismissed the intervener’s appeal in Case R 1415/2022‑2 and, therefore, upheld the decision of the Cancellation Division that had revoked the rights of the proprietor of the contested international registration, in particular for ‘bags for sports’ in Class 18 and for ‘footwear; sports footwear; leisure footwear’ in Class 25 (see paragraphs 8 and 10 above).
113 If the Court were to uphold the intervener’s claims and annul the contested decision, the Board of Appeal would therefore be required to rule again on the intervener’s action brought in Case R 1415/2022‑2 and could, in that context, adopt a decision different from that annulled by the Court. The cross-claim is therefore liable, if successful, to procure an advantage for the intervener.
114 Thus, contrary to what the applicant claims, the fact that the contested decision found in favour of the intervener as regards Case R 1421/2022‑2 cannot deprive it of an interest in bringing proceedings against the contested decision in so far as that decision dismissed the action in Case R 1415/2022‑2.
115 In the light of the foregoing, the plea of inadmissibility is unfounded and must be rejected.
2. Substance
116 In support of its cross-claim, the intervener raises a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001. It claims, in that regard, that the Board of Appeal made an error of assessment in finding that genuine use of the contested international registration had not been established for ‘bags for sports’ in Class 18 and for ‘footwear; sports footwear; leisure footwear’ in Class 25. The single plea is divided into three parts. In the first part, the intervener alleges, in essence, that the Board of Appeal made an error of assessment as regards the degree of distinctiveness of the contested international registration. In the second part, it complains that the Board of Appeal failed to take into account the evidence of use of the contested international registration turned 90 degrees. In the third part, it complains that the Board of Appeal failed to take into account the evidence of use of the contested international registration with a number of chevrons below or greater than eight.
(a) The first part of the single plea in law, alleging, in essence, an error of assessment as regards the degree of distinctiveness of the contested international registration
117 The intervener claims that the contested international registration enjoys an average degree of distinctiveness acquired through use and a reputation in the European Union, which therefore enhance the degree of distinctiveness of that international registration. Consequently, it submits that the Board of Appeal erred in classifying the distinctive character of the contested international registration as low.
118 EUIPO and the applicant dispute the intervener’s arguments.
119 First, it should be noted that, contrary to what the intervener claims, the Board of Appeal did not find that the degree of distinctiveness of the contested international registration was low, but classified it as ‘somewhat below average’ (see paragraph 51 above).
120 Secondly, the intervener merely relies on the average distinctive character of the international registration without putting forward any arguments seeking to establish that the Board of Appeal made an error of assessment in classifying that distinctive character as ‘somewhat below average’.
121 As has been stated in paragraphs 53 and 54 above, the degree of distinctiveness of the contested international registration found by the Board of Appeal appears justified in the light of the description of that international registration given in the contested decision, which is not disputed by the parties, and of the goods that it designates.
122 Thirdly, as regards the enhanced distinctive character acquired through use and the reputation of the contested international registration relied on by the intervener, it must be stated that the wording of Article 18(1)(a) of Regulation 2017/1001 expressly refers to the distinctive character of the earlier mark ‘in the form in which it was registered’, that is to say, to its inherent distinctive character. Furthermore, it follows from the case-law cited in paragraphs 45 to 47 above that, for the purposes of assessing whether or not variations made to a registered mark may be taken into account in order to establish its use for the purposes of Article 18(1)(a) of Regulation 2017/1001, it is necessary to examine whether or not those variations alter the distinctive character of that mark in the form in which it was registered and, in that context, to take account, first, of the intrinsic qualities of the mark as registered and, secondly, of the intrinsic qualities of the elements added during its commercial exploitation. Thus, the possible enhanced distinctive character of a mark, acquired through its use, or its reputation are not relevant for the purposes of that examination.
123 Therefore, even assuming that the contested international registration enjoys enhanced distinctive character through use and a reputation, that fact is not relevant for the purposes of determining whether variants of that international registration may be taken into account in order to establish its genuine use.
124 Having regard to the foregoing, the first part of the single plea in law must be rejected as ineffective.
(b) The second part of the single plea in law, alleging failure to take into account the evidence relating to the contested international registration turned 90 degrees
125 The intervener disputes the Board of Appeal’s assessment that the use of the contested international registration turned 90 degrees and, therefore, facing horizontally rather than vertically, alters its distinctive character. In that regard, it submits that the Board of Appeal did not find that the orientation of the contested international registration was one of its distinctive characteristics. Therefore, the use of the contested international registration horizontally on bags for sports does not alter its distinctive character.
126 EUIPO, supported by the applicant, disputes the intervener’s arguments.
127 It must be stated, as EUIPO did, that the intervener’s arguments are the result of a misreading of the contested decision.
128 First, in the initial description of the contested international registration, the Board of Appeal stated that it was a purely figurative sign consisting of ‘an eight-chevron device in black on a white background, with the chevrons pointing downwards’ and that it was characterised by ‘90-degree angles, identical space between the chevrons, and flat vertical sides’ (paragraph 42 of the contested decision). Furthermore, the Board of Appeal found that ‘the special outline of the chevrons’ was one of the characteristics of the contested international registration conferring distinctive character on it (see paragraph 55 above). In that regard, it must be stated that the ‘flat vertical sides’ of the chevrons necessarily form part of the ‘special outline of the chevrons’.
129 Secondly, in paragraph 85 of the contested decision, the Board of Appeal expressly stated that the ‘visual impact [of the contested international registration] result[ed] largely from the orientation of the chevrons (vertical)’ and that ‘that use as horizontal chevrons alter[ed] its distinctive character’ .
130 It is therefore apparent from the contested decision that the vertical orientation of the contested international registration is one of its distinctive characteristics.
131 It follows that the Board of Appeal did not make an error of assessment in finding that the use of the contested international registration horizontally on bags for sports in Class 18 altered its distinctive character.
132 The second part of the single plea must therefore be rejected.
(c) The third part of the single plea in law, alleging failure to take into account the evidence relating to the contested international registration with a number of chevrons below or greater than eight
133 The intervener disputes the Board of Appeal’s assessment that the use of the contested international registration with a number of chevrons below or greater than eight altered its distinctive character. According to the intervener, in essence, the Board of Appeal examined only whether or not the contested international registration was equivalent to an indefinite number of chevrons, whereas it should have examined whether the use of 7, 8 or 10 chevrons altered the distinctive character of the contested international registration. Furthermore, it complains that the Board of Appeal failed to examine its argument that, even when compared directly, the consumer will not distinguish between the contested international registration and a variant with seven chevrons, since the difference is manifestly insignificant. When seven chevrons are affixed to the heel of footwear, the characteristics of the contested international registration, namely the outline, thickness, width and distance between the chevrons, are maintained.
134 EUIPO, supported by the applicant, disputes the intervener’s arguments.
135 It should be noted that, in paragraph 90 of the contested decision, the Board of Appeal recalled the intervener’s argument that the evidence showing the contested international registration with more or fewer than eight chevrons, along the sides of clothing, established use of that international registration. Furthermore, in paragraph 91 of the contested decision, the Board of Appeal stated that the contested international registration was not equivalent to an indefinite number of chevrons, because it was a figurative mark clearly composed of eight chevrons, the number of chevrons being one of its characteristic elements giving it distinctive character. The Board of Appeal therefore considered that the evidence showing the contested international registration with a number of chevrons of below or greater than eight had to be disregarded.
136 It follows that the Board of Appeal examined and rejected the intervener’s argument that the use of 7 or 10 chevrons did not alter the distinctive character of the contested international registration. The Board of Appeal thus implicitly but necessarily held that a lower or greater number of chevrons in the contested international registration was not a negligible variation, since it altered its distinctive character.
137 Accordingly, since the third part of the single plea is unfounded, it must be rejected.
138 Since none of the parts of the single plea in law is well founded, the cross-claim is dismissed in its entirety without it being necessary to respond to the applicant’s argument that the use of the contested international registration on bags for sports and footwear constitutes decorative use that does not indicate the commercial origin of the goods to which it is affixed.
IV. Costs
139 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
140 Furthermore, under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
141 Since the applicant and the intervener have each been unsuccessful in their respective actions, they must each be ordered to bear their own costs.
142 Furthermore, as regards the intervener’s request that the applicant be ordered to pay the costs incurred before the Board of Appeal, suffice it to note that, since the present judgment dismisses the action brought against the contested decision, it is the operative part of that decision that continues to govern the costs in question (see, to that effect, judgment of 28 April 2021, Comercializadora Eloro v EUIPO – Zumex Group (JUMEX), T‑310/20, not published, EU:T:2021:227, paragraph 45).
143 Lastly, in view of the hearing on 9 January 2025, the applicant and the intervener are to bear, respectively, the costs incurred by EUIPO in the main action and in the cross-claim, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the main action and the cross-claim;
2. Orders Barry’s Bootcamp Holdings LLC to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) in the main action;
3. Orders Hummel Holding A/S to bear its own costs and to pay those incurred by EUIPO in the cross-claim.
Marcoulli | Schwarcz | Spangsberg Grønfeldt |
Delivered in open court in Luxembourg on 24 September 2025.
V. Di Bucci | | S. Papasavvas |