Judgment — ECLI:EU:T:2018:758
Date: 2018-11-08
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - successful

Summary of the facts’ section of the contested decision. 59 The Board of Appeal was therefore wrong to consider, in paragraph 32 of the contested decision, that professional customers were not part of the relevant public as regards ‘exercise equipment’, since, in general, those indoor cycles are purchased by commercial operators of gyms, sports facilities and rehabilitation facilities. 60 It is true that, as was maintained by EUIPO at the hearing, the category of ‘exercise equipment’ is not limited to indoor cycles and that the other goods in question may be purchased by individuals. However, it is apparent from paragraph 57 above that, in view of their high purchase price, indoor cycles are rarely purchased by individuals. EUIPO’s argument does not therefore permit the exclusion of professional customers from the relevant public as regards ‘exercise equipment’. 61 In view of those factors, the Board of Appeal was wrong to exclude the perception of professional customers as regards ‘exercise equipment’ from its analysis in order to assess whether the contested mark had become the common name in the trade for the ‘exercise equipment’ in respect of which it was registered. Accordingly, the Board of Appeal made an error of assessment in defining the relevant public as regards the market for ‘exercise equipment’ in Class 28 by failing to take account of the perception of professional customers operating on that market. 62 That conclusion is not undermined by the fact that, as the intervener maintained during the hearing, the contested decision refers, in paragraphs 41, 45 to 47, 49, 53 and 62 thereof, to the perception of commercial operators. It must be pointed out that those references concern only the sporting activity in question, and not the ‘exercise equipment’. Only paragraph 44 of the contested decision makes explicit reference to the perception of the contested mark by commercial operators with regard to indoor cycles and shoes, but that reasoning concerns only the sellers of those sporting goods. 63 By contrast, the contested decision contains nothing relating to the perception of the contested mark by professional customers, such as, inter alia, operators of gyms, sporting facilities and rehabilitation facilities, acting as buyers of those goods. As is apparent from paragraphs 58 and 59 above, it is those operators who, as a general rule, purchase indoor cycles and subsequently make them available to their own customers in order to enable them to practise the sporting activity in question. 64 It must therefore be found, first, that those operators play a central role on the ‘exercise equipment’ market and, second, that they have a decisive influence on the selection, by end users, of ‘exercise training’ services. Through their knowledge of the contested mark’s function as an indication of origin, those operators thus enable the process of communication between providers and end users of those services to be successfully carried out (see, to that effect and by analogy, Opinion of Advocate General Cruz Villalón in Backaldrin Österreich The Kornspitz Company, C‑409/12, EU:C:2013:563, point 59). 65 That error of assessment in defining the relevant public vitiates the contested decision in its entirety and, accordingly, justifies its annulment. 66 However, as the applicant has limited the subject matter of the present action to the ‘exercise equipment’ in Class 28 and ‘exercise training’ in Class 41 covered by the contested mark, the effects of the contested decision must be maintained in respect of the ‘audio and video cassettes’ in Class 9 covered by that mark. 67 In the light of all of the foregoing, and without its being necessary to examine either the fourth complaint of the present plea in law or the second and third pleas raised in the present action, the third complaint of the first plea in law must be upheld and, accordingly, the contested decision must be annulled in so far as it concerns the goods in Class 28 and the services in Class 41 covered by the contested mark. Costs 68 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. 69 Since EUIPO and the intervener have been unsuccessful, first, EUIPO must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter, and, second, the intervener must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 July 2016 (Case R 2375/2014-5) in so far as it concerns the goods in Class 28 and the services in Class 41 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; 2. Orders EUIPO to bear its own costs and to pay those incurred by Mad Dogg Athletics, Inc.; 3. Orders Aerospinning Master Franchising, s.r.o. to bear its own costs. Gervasoni Kowalik-Bańczyk Mac Eochaidh Delivered in open court in Luxembourg on 8 November 2018. E. Coulon S. Gervasoni Registrar President * Language of the case: English.