JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
24 September 2025 (*)
( EU trade mark – Revocation proceedings – EU word mark SEQUOÏA – Lack of genuine use – Article 58(1)(a) of Regulation (EU) 2017/1001 – Nature of use )
In Case T‑301/24,
Rústicas del Guadalquivir SL, established in San José de la Rinconada (Spain), represented by C. Casas Feu, J. Dorado López-Lozano and M. González Rodríguez, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other parties to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Fall Creek Farm and Nursery, Inc., established in Lowell, Massachusetts (United States),
Fall Creek Farm & Nursery Europe SRL, established in Aznalcázar (Spain),
represented by S. Martínez-Almeida y Alejos-Pita and M. Corbal San Adrián, lawyers,
THE GENERAL COURT (Seventh Chamber),
composed, at the time of the deliberations, of K. Kowalik-Bańczyk, President, G. Hesse and I. Dimitrakopoulos (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 19 June 2025,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Rústicas del Guadalquivir SL, seeks the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 April 2024 (Case R 1606/2023-4) (‘the contested decision’).
Background to the dispute
2 On 30 April 2007, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign SEQUOÏA, published on 8 October 2007. That mark was registered on 29 February 2008 and renewed on 12 February 2017.
3 The mark applied for covers goods in Class 31 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, corresponding to the following description: ‘Fresh fruits and vegetables’.
4 On 7 March 2022, the interveners, Fall Creek Farm and Nursery, Inc. and Fall Creek Farm & Nursery Europe SRL, filed an application with EUIPO for revocation of the mark referred to in paragraph 2 above on the basis of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), on the ground that that mark had not been put to genuine use in the European Union within a continuous period of five years in connection with all of the goods in respect of which it had been registered.
5 On 7 June 2023, the Cancellation Division upheld the application for revocation in its entirety and declared the contested mark to be revoked on the ground that there was no evidence of the nature of use of that mark as a trade mark in the course of trade under Article 58(1)(a) of Regulation 2017/1001.
6 On 28 July 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division.
7 By the contested decision, the Board of Appeal dismissed the appeal on the ground that the applicant had not proved genuine use of the contested mark, as it had failed to prove the nature of its use as a trade mark in the course of trade under Article 58(1)(a) of Regulation 2017/1001. It found that the term ‘sequoia’ was predominantly used to refer to a variety of certain types of fruits. It concluded that the contested mark was not used in accordance with the essential function of an EU trade mark, which is to indicate the commercial origin of the goods and services which it covers.
Forms of order sought
8 The applicant claims, in essence, that the Court should:
– annul the contested decision and reject the application for revocation of the contested mark;
– order EUIPO and the interveners to pay the costs of the present proceedings.
9 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in the event that a hearing is convened.
10 The interveners contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
11 The applicant raises a single plea in law alleging, in essence, infringement of Article 58(1)(a) of Regulation 2017/1001 in so far as it adduced proof of genuine use of the contested mark in connection with the goods at issue within a continuous period of five years before the application for revocation was filed.
12 EUIPO and the intervener dispute the merits of that plea.
Preliminary observations
13 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.
14 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 (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43). 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 (judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 39; see also, to that effect and by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37).
15 When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
16 Furthermore, genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT), T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28).
17 In order to examine, in a particular case, whether an earlier trade mark has been put to genuine use, a global assessment must be carried out, which takes into account all the relevant factors of the particular case and which entails a degree of interdependence between the factors taken into account (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42).
18 In that regard, under Article 10(3) and (4) 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), applicable to revocation proceedings pursuant to Article 19(1) of that regulation, evidence of use of a trade mark must relate to the place, time, extent and nature of use of the mark and is to be limited to the submission of supporting documents and items, such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001.
19 In the context of the assessment of 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).
20 An accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (judgment of 13 February 2015, Husky CZ v OHIM – Husky of Tostock (HUSKY), T‑287/13, EU:T:2015:99, paragraph 66 and the case-law cited). Thus, although the probative value of an item of evidence is limited to the extent that, individually, it does not show with certainty whether, and how, the goods or services concerned were placed on the market, and although that item of evidence is therefore not in itself decisive, it may nevertheless be taken into account in the assessment as to whether the use is genuine. That is also the case, for example, where that evidence corroborates the other relevant factors of the present case (see, to that effect, judgments of 6 March 2014, Anapurna v OHIM – Annapurna (ANNAPURNA), T‑71/13, not published, EU:T:2014:105, paragraph 45, and of 23 September 2015, L’Oréal v OHIM – Cosmética Cabinas (AINHOA), T‑426/13, not published, EU:T:2015:669, paragraph 53).
21 Lastly, it must be borne in mind that, in proceedings for revocation of a trade mark, the burden of proof in respect of genuine use of that mark rests exclusively on its proprietor (see, to that effect and by analogy, judgment of 10 March 2022, Maxxus Group, C‑183/21, EU:C:2022:174, paragraph 36 and the case-law cited).
22 It is in the light of the foregoing considerations that it must be determined whether, as the applicant claims, it has proved the nature of use of the contested mark as a mark.
The nature of use
23 In the present case, it should be noted that the contested mark was registered on 29 February 2008 and renewed on 12 February 2017 and that the application for revocation was filed on 7 March 2022. Consequently, the relevant period during which the applicant must prove genuine use of the contested mark runs from 7 March 2017 to 6 March 2022, as the Board of Appeal found in paragraph 31 of the contested decision.
24 It should also be noted that, first, the applicant does not dispute the Board of Appeal’s finding that the relevant public, in the present case, consists both of end consumers and of the professional public in the field of food products. Second, as regards the elements to which proof of genuine use must relate, only the nature of use of the contested mark was examined by the Board of Appeal.
25 Furthermore, it is apparent from the administrative file produced before the Court and from paragraph 6 of the contested decision that, in order to prove genuine use of the contested mark, the applicant produced the following evidence before the Cancellation Division:
– Annex 1: a chart of the applicant’s corporate structure and official declarations before a public notary mentioning the applicant’s owner and his role in other companies belonging to the same group as the applicant, in particular undertaking A. Other companies, such as undertaking B and undertaking C, are mentioned as licensees;
– Annex 2: licence agreements ‘for the exploitation of a protected plant variety’. The first was dated 23 July 2009 and was concluded between the applicant and undertaking B. The second was dated 1 December 2010 and was concluded between the applicant and undertaking C;
– Annex 3: invoices issued by undertaking B between 2017 and 2021 to customers located, inter alia, in Belgium, Germany, Estonia, Spain, France, Italy, Poland and Sweden concerning, in particular, sales of sequoia cherries;
– Annex 4: invoices issued between October 2019 and February 2022 by undertaking D, a French subsidiary who is an authorised licensee of the applicant, to customers located, inter alia, in France, Italy and the Netherlands concerning sequoia raspberries, and invoices issued in 2020 by undertaking B for ‘cereza sequoia’ (cherries sequoia) to customers in Spain and France;
– Annex 5: invoices issued by undertaking A between January and March 2022 to customers located in Germany and the Netherlands, bearing the words ‘frambuesa’ (raspberry) as the description of the goods and ‘sequoia’ as the variety;
– Annex 6: a statement by the applicant and undertaking A explaining that that undertaking is authorised by the applicant ‘to act as [the] marketing company for “SEQUOÏA” products, trade mark owned by the [applicant]’. The applicant also certified that the attached documentation corresponds to orders for fruit under the mark SEQUOÏA that undertaking A handled from its EU clients between October 2019 and March 2022 and that those documents have been audited. It attaches a list of ‘Sales order by variety’ dated from 2019 to 2022, including the order number, the date, the variety listed as ‘sequoia’, and the client and the country concerned (including Belgium, Germany, France, the Netherlands and Austria);
– Annex 7: invoices for the period from 2018 to 2022 issued by the applicant to different companies in Spain concerning royalties corresponding to ‘the use of Sequoia Cherry’ during the years 2017 to 2021;
– Annex 8: a statement by the applicant and undertaking A explaining that that undertaking is authorised by the proprietor ‘to act as [the] marketing company for “SEQUOÏA” products, trade mark owned by the [applicant]’, that the delivery notes and list of shipments of merchandise with trucks (dated from 2019 to 2021) attached correspond to shipments of fruit to different countries in the European Union and that they have been audited;
– Annex 9: supermarket shopping catalogues dated November 2021 and March 2022;
– Annex 10: invoices sent to undertaking A relating to advertisements for ‘Glamour Raspberry and Sequoia photo retouching’, ‘Adaptation to blackberry, raspberry Sequoia’ and ‘Glamour and Sequoia Label Visual Design’ dated 6 April 2017, 12 January 2018 and 3 May 2018 respectively;
– Annex 11: undated photographs;
– Annex 12: quality reports and incidents regarding ‘Sequoia’ products issued by European clients dated from between 2019 and 2021;
– Annex 13: a publication on the ‘Fresh Plaza’ platform dated 30 March 2022.
26 The Board of Appeal found that, in the light of the evidence referred to in paragraph 25 above, the relevant public would not regard the contested mark as a mark with the function of identifying the commercial origin of the goods at issue, given that the term ‘sequoia’ was used as a variety of certain types of fruits. The applicant has therefore failed to prove the nature of use of the contested mark and, consequently, genuine use of that mark.
27 In the first place, as regards certain items of evidence submitted by the applicant concerning, first, the licence agreements, dated 2009 and 2010, concluded between the applicant and third parties (Annex 2), the Board of Appeal noted that the term ‘sequoia’ was presented as a variety of cherry tree. Second, as regards the invoices issued inter alia between 2017 and 2022 by one of the licensees referred to in those licence agreements (Annexes 3, 5 and 7), the term ‘sequoia’ appears as a reference to a variety, a fruit or the use of the ‘sequoia cherry’. On certain invoices (Annex 10), the term is associated with the payment of advertisements for ‘sequoia’ fruit. However, the applicant has not provided any additional evidence confirming the use of the contested mark as a distinctive sign in those advertisements. Third, in the evidence intended for end consumers (Annexes 9, 11 and 12), the term ‘sequoia’ also appears as a variety of the goods at issue. Fourth, as regards an article from the ‘Fresh Plaza’ platform (Annex 13), the term ‘sequoia’ is associated with royal varieties and, therefore, does not constitute a distinctive sign.
28 In the second place, the Board of Appeal accepted that, in certain isolated items of evidence (Annexes 5, 6 and 8), the term ‘sequoia’ was associated with the term ‘mark’. More specifically, on the one hand, as regards an invoice dated 2022, the term ‘sequoia’ is included in the column entitled ‘mark’. However, in the following invoice, that term is used as part of the description of raspberries. On the other hand, as regards the internal declarations submitted by the applicant concerning sales orders or the marketing of the goods at issue, the term ‘sequoia’ is also associated with a mark. However, in the documents to which those declarations refer (sales orders and documents relating to the transport of the goods), that term is associated with a variety. Consequently, the Board of Appeal found that the applicant had not proved that the term ‘sequoia’ was perceived by the relevant public as an indication of the commercial origin of the goods at issue. Lastly, the Board of Appeal found that the use of the symbol ‘®’ after the term ‘sequoia’ in certain items of evidence had little legal impact on its assessments and was not such as to produce decisive practical effects as regards the determination or preservation of the rights conferred by an EU mark, in the light of the case-law of the Court.
29 The applicant disputes the merits of the contested decision and submits that it has proved that the contested mark was used as a mark in the course of trade and that it enabled the goods concerned to be distinguished.
30 The applicant acknowledges having used the term ‘variety’ in combination with the word ‘sequoia’, in particular in the licence agreements dated 2009 and 2010 (Annex 2) and in documents relating to a declaration it made in 2020 (Annex 8), while claiming that that use did not constitute a substantial change in the use of the contested mark. Furthermore, first, in certain documents such as the invoices issued between January and March 2022 (Annex 5), the term ‘mark’ is used, either alone or together with the term ‘variety’, which shows that those two terms have the same meaning. Second, in other invoices (Annexes 3, 4, 5 and 7), the term ‘sequoia’ is not associated with the word ‘variety’. In any event, the applicant maintains that the association of the terms ‘sequoia’ and ‘variety’ does not alter the distinctive character of the contested mark and does not prevent the relevant public from identifying it as such. At the hearing, the applicant also provided clarification as to its use of the term ‘variety’, which does not refer to a protected plant variety or botanical variety but enables the applicant to distinguish the products which it cultivates. It asserted, on that occasion, that the use of the term ‘sequoia’ referred to a mark.
31 EUIPO and the interveners dispute the applicant’s arguments.
32 In that regard, in the first place, it should first be noted that Annex 5 does in fact contain an invoice, dated 24 January 2022, in which the term ‘sequoia’ is associated with the word ‘mark’. Nevertheless, as is apparent, in essence, from paragraphs 43 and 44 of the contested decision, it is an isolated element and there is no consistency in that use of the term ‘sequoia’. Thus, the following invoice, dated 21 January 2022, refers to sequoia raspberries marketed under the mark ROYAL. As regards the other invoices in Annex 5, the term ‘sequoia’ is presented either as a variety or as a ‘variety/mark’.
33 Next, the fact that, in only certain invoices, which appear in Annexes 4, 5 and 7 produced before the Cancellation Division and in the statements reproduced in Annexes 6 and 8, is the term ‘sequoia’ used alone or together with the word ‘mark’, does not, contrary to what the applicant claims, prove actual and sufficient use of the contested mark in accordance with its essential function.
34 Lastly, it should be noted that in some of the invoices contained in Annexes 4 and 5, the term ‘sequoia’ is followed by the symbol ‘®’. Nevertheless, as the Board of Appeal pointed out in paragraph 58 of the contested decision, the use of that symbol in the present case is not sufficient, in itself, to prove use of the contested mark as an EU mark. Its possible probative value is further diminished by the fact that it is not used consistently in those invoices (see, by analogy, judgment of 14 February 2017, Pandalis v EUIPO – LR Health & Beauty Systems (Cystus), T‑15/16, not published, EU:T:2017:75, paragraphs 44 and 45).
35 In the second place, it should be noted that the term ‘variety’, alongside or in association with the term ‘sequoia’, concerning the goods at issue, as is apparent in particular from Annexes 2, 3, 5, 6, 8, 9, 11 and 12 produced before the Cancellation Division, refers to a subcategory of certain species of fruits or berries cultivated by the applicant or its licensed partners, as the applicant acknowledged at the hearing. The applicant therefore incorrectly claimed that the use of the term ‘variety’ is not capable of affecting the nature of use of the contested mark. The association of the terms ‘sequoia’ and ‘variety’ does not enable the relevant public, including the professional public, to determine with certainty whether the term ‘sequoia’ refers to the contested mark and, therefore, to the commercial origin of the goods at issue, or whether it covers only a subcategory of particular fruits or berries, as the Board of Appeal notes, in essence, in paragraphs 37 and 52 of the contested decision, since the association of the terms ‘variety’ and ‘sequoia’ alongside one another in the present case makes the nature of use of the contested mark ambiguous.
36 In that regard, first, it is true that the applicant submits that the term ‘variety’ is frequently used in the fruit and berry wholesale sector, without reference to a plant variety. In support of its argument, the applicant refers to several marks registered by Fall Creek Farm and Nursery which include the term ‘sekoya’ and to the use by the latter of those marks with the term ‘variety’ on its LinkedIn social networking page and on its website. However, without it being necessary to determine whether the new evidence produced in that regard before the Court is admissible, it is sufficient to note that the mere use by Fall Creek Farm and Nursery of its own marks in connection with the term ‘variety’ is not sufficient either to demonstrate a widespread practice within the relevant market, as EUIPO correctly submits in paragraphs 27 and 28 of its defence, or to clarify the nature of use of the contested mark.
37 Second, the applicant does not dispute that, in some of the invoices submitted in Annex 3, the term ‘sequoia’ is directly associated with a fruit by its combination with the word ‘cherry’ or its abbreviation in capital letters ‘CER’. Moreover, as the interveners submit, the invoices in that annex issued in 2018 use the term ‘sequoia’ to cover the species or variety of cherries sold and the term ‘la rivera’ or ‘torrente’ to cover the marks under which those cherries are marketed, with the result that, in those invoices, the term ‘sequoia’ does not appear to have been used as a mark.
38 Third, as regards the statements reproduced in Annexes 6 and 8, which refer to ‘SEQUOÏA products, registered trade mark’, it should be noted, as the Board of Appeal did in paragraphs 45 and 46 of the contested decision, that, in the sales orders and delivery documents to which those declarations refer, the term ‘sequoia’ is only associated with that of ‘variety’ and, moreover, is never accompanied by the symbol ‘®’, unlike some of the other terms mentioned. Similarly, in the invoices contained in Annexes 7 and 8, the term ‘sequoia’ is associated with a fruit, without any further specification.
39 Fourth and lastly, the applicant submits that SEQUOÏA does not fulfil the requirements relating to the protection of a plant denomination and that, as a result, the term ‘sequoia’ necessarily refers to a mark. In that regard, it is true that, in paragraph 54 of the contested decision, the Board of Appeal noted that the parties had not claimed that the term ‘sequoia’ had been registered as a plant variety. However, the fact that that term is not registered as a plant variety, in accordance with Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 277, p. 1), first, in no way precludes its use in order to cover, in the course of trade, a variety of fruit or berries (in the purely botanical sense) and, second, contrary to what the applicant submits, is not such as to prove that it was used as a mark to indicate the unique commercial origin of the various fruits marketed.
40 Consequently, in the light of the ambiguous and inconsistent nature of all of the evidence produced by the applicant, the Board of Appeal committed no error of assessment in finding that that evidence, even when examined as a whole, was not sufficient to prove use of the contested mark as a mark or, consequently, genuine use of that mark.
41 In the light of all of the foregoing, the single plea in law raised by the applicant, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
Costs
42 Under Article 134(1) 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.
43 Since a hearing has been convened and the applicant has been unsuccessful, it must be ordered to pay the costs incurred before the General Court, in accordance with the forms of order sought by EUIPO and the interveners.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Rústicas del Guadalquivir SL to pay the costs.
Kowalik-Bańczyk | Hesse | Dimitrakopoulos |
Delivered in open court in Luxembourg on 24 September 2025.
V. Di Bucci | | S. Papasavvas |