Information;Judgment — ECLI:EU:T:2022:110
Date: 2022-03-02
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Germany

summary fashion, that it has provided proof of genuine use of the contested mark for retail services in relation to chemicals, as is apparent from a considerable number of invoices for the years 2012 to 2017. However, a mere indication ‘chemical’ appearing on the invoice records alongside each product mentioned in paragraph 30 above is insufficient to establish that the products are chemicals. That is all the more true of the other material in the file, such as screenshots in relation only to some of those goods, which do not contain sufficient information to establish that the goods to which the applicant refers are goods falling within the broad category of chemicals covered by retail services. The applicant has therefore failed to demonstrate that the evidence relating to those goods proves genuine use of the contested mark in connection with retail services in relation to the entire broader category of chemicals. 36 Second, with regard to the product ‘Frontline’, which the applicant claims to be both a chemical, because it contains an insecticide called Fipronil, and a household good, because it is intended to treat animals against parasites, it should be noted that, assuming that it is a chemical, the evidence provided by the applicant indicates that only a relatively low volume of that product was sold under the contested mark during only part of the relevant period, namely between 2013 and 2015, with a single sale in 2016. As such, the sales volume of the everyday consumer product ‘Frontline’, over a limited period, does not demonstrate genuine use of the contested mark for retail services in relation to that product. 37 In any event, in the light of the broad category of chemicals to which the retail services relate, the evidence showing use of the contested mark in connection with retail services in relation to the product ‘Frontline’ does not allow the protection afforded by that mark to be maintained for that entire category. 38 It follows that the applicant’s arguments do not permit the inference that the Board of Appeal erred in finding that proof of genuine use of the contested mark had not been provided in connection with retail services in relation to chemicals, with the exception of goods falling within the subcategory of pharmaceuticals. Genuine use of the contested mark in connection with retail services in relation to household goods 39 The applicant claims that it has provided proof of genuine use of the contested mark in connection with retail services in relation to household goods. In support of its view, it refers to the invoice records relating to the period from 2012 to 2017 and, in particular, to the product ‘Frontline’, listed on those invoice records, which, according to the applicant, is not only a chemical but also a household good, on account of its intended use for the treatment of animals against parasites. 40 EUIPO and the intervener dispute the applicant’s arguments. 41 It should be borne in mind that, in paragraphs 56, 84 and 85 of the contested decision, the Board of Appeal found that the evidence produced by the applicant was insufficient to demonstrate genuine use of the contested mark in connection with retail services relating to the general category of household goods. 42 In that regard, it should be noted that the applicant does not put forward any argument allowing the goods listed on the invoice records to be assimilated to the category of household goods, which covers a wide range of goods including domestic items and household maintenance products, even if only in respect of the product ‘Frontline’, which is a household good by reason of its intended purpose, namely the treatment of animals against parasites. However, in the light of the explanations given by the applicant, that product cannot be considered to have the same purpose as domestic items or to be intended for household maintenance. 43 In any event, assuming that ‘Frontline’ is a household good, the applicant has not demonstrated that the use of the contested mark in connection with retail services in relation to that product can be classified as genuine, as established in paragraph 36 above. Furthermore, although the Board of Appeal found that household goods constituted a general – and therefore, by implication, broad – category, the applicant did not dispute that assessment. Nor has the applicant demonstrated, in the light of the case-law cited in paragraph 24 above, that the category of household goods is a precise and circumscribed category such as to establish that the proof of use of the contested mark in connection with retail services in relation to the product ‘Frontline’ covers the use of that mark in connection with the entire category of household goods to which the retail services relate. As has been stated in paragraph 42 above, the category of household goods to which the retail services relate constitutes a broad category and may therefore be subdivided into several categories capable of being viewed independently for the purposes of the case-law referred to in paragraph 21 above. Accordingly, in any event, the proof of use of the contested mark in connection with the single product ‘Frontline’ is not capable of extending the protection conferred by that mark to the entire broader category of household goods to which the retail services relate. 44 Accordingly, the Board of Appeal made no error of assessment in finding that the evidence provided by the applicant was insufficient to establish genuine use of the contested mark in connection with retail services in relation to household goods. Genuine use of the contested mark in connection with retail services in relation to pharmacy products and goods for the health sector 45 The applicant claims, first, that the goods referred to in the invoices which it produced are pharmacy products because they are being sold on an online pharmacy site and in other pharmacies, drugstores and parapharmacies. Second, the applicant claims that use of the contested mark has been proved not only in connection with pharmaceutical preparations, but also in connection with hygiene articles, cosmetics, food supplements and dietetic substances. Thus, in the light of the definition of pharmacy products and goods for the health sector set out in paragraphs 78 and 79 of the contested decision, the Board of Appeal should have found that proof of genuine use of the contested mark had also been provided in connection with retail services in relation to pharmacy products and goods for the health sector as a whole, and not merely in connection with the subcategory of pharmaceuticals. In any event, according to the applicant, since the Board of Appeal found that genuine use of the contested mark had been proved in connection with retail services in relation to cosmetics and pharmaceuticals, which belong to pharmacy products and goods for the health sector, the Board of Appeal erred in upholding the revocation of the applicant’s rights in the contested mark for retail services in relation to pharmacy products and goods for the health sector. 46 EUIPO and the intervener dispute the applicant’s arguments. 47 It should be borne in mind that, in paragraphs 78 and 79 of the contested decision, the Board of Appeal defined, respectively, pharmacy products and goods for the health sector. Thus, it found that pharmacy products are products offered in a pharmacy, drugstore or parapharmacy, which include a wide range of goods such as pharmaceuticals, cosmetics, food supplements, dietetic substances, medical accessories and medical devices, or hygiene articles. With respect to ‘goods for the health sector’, it found that that description is a very broad term which may include a wide range of different goods such as pharmaceuticals, food supplements, dietetic substances and medical apparatus, instruments and articles. Lastly, it found that genuine use of the contested mark had been demonstrated in connection with retail services in relation to pharmaceuticals, which constituted a subcategory of the two general categories of products referred to above, since they have a purpose which is different from other goods offered in the same places of sale. Moreover, in paragraph 72 of the contested decision, after finding that goods such as shower gels, roll-on deodorants and washing lotions constituted cosmetics, the Board of Appeal found that genuine use of the contested mark had also been demonstrated in connection with retail services in relation to cosmetics. 48 In paragraphs 84 and 85 of the contested decision, the Board of Appeal found that the evidence produced was insufficient to establish genuine use of the contested mark in connection with retail services in relation to pharmacy products and goods for the health sector, as well as their subcategories, apart from pharmaceutical preparations. It also considered that the evidence relating to the use of that mark in connection with nutritional supplements was insufficient to demonstrate the extent of that use. 49 As a preliminary point, it should be noted that the applicant does not dispute the finding in the contested decision that the categories of pharmacy products and goods for the health sector can be divided into several subcategories. 50 It should be noted, first, that, in support of its argument that genuine use of the contested mark in connection with retail services in relation to pharmacy products is established by the evidence of such use in connection with retail services in relation to cosmetics and hygiene articles, the applicant refers to certain invoices. Those invoices include, inter alia, goods such as antiperspirant sprays, roll-on deodorants, shower gels, body lotions, lip creams and washing lotions, which the applicant describes as cosmetics and hygiene articles. However, while it cannot be ruled out that those goods may constitute both cosmetics and hygiene articles, in the light of the broader category of pharmacy products to which the retail services relate, the evidence showing use of the contested mark in connection with retail services in relation to the abovementioned goods does not allow the protection afforded by that mark to be maintained for that entire category of pharmacy products to which the retail services relate. 51 Second, as regards the assessment of the proof of genuine use of the contested mark in connection with retail services in relation to food supplements and dietetic substances, it is apparent from the documents before the Court that the products to which the applicant refers in support of its argument in that regard are referred to as a ‘[food supplement]’, a ‘protein [nutrient]’, a ‘vitamin B [nutrient]’, a ‘pharmacy product for [dietetic] nutrition’, a ‘magnesium [nutrient]’, a ‘[lactase nutrient]’, a ‘biological, plant-based protein [nutrient]’, a ‘magnesium supplement’, a ‘tea for increased vitamin C and zinc requirements’, a ‘food supplement that promotes physical well-being’, a ‘[plant-based] food [supplement] [for better vascular tone and blood circulation]’, a ‘diet [nutrient] used by women [during the menopause]’ and a ‘dietary supplement’. 52 However, while some of the evidence suggests that those products are intended to supplement dietary needs, other evidence merely describes the nature and characteristics of those products, which are not relevant to determining to which of the two subcategories, namely food supplements or dietetic substances, the products mentioned in paragraph 51 above belong (see, to that effect and by analogy, judgment of 18 October 2016, August Storck v EUIPO – Chiquita Brands (Fruitfuls), T‑367/14, not published, EU:T:2016:615, paragraph 32). Therefore, it is impossible to determine whether genuine use of the contested mark has been demonstrated in connection with one of the two subcategories of goods to which the retail services relate. 53 In any event, it is apparent from the evidence produced by the applicant that the goods referred to in paragraph 51 above were sold in small retail quantities or indeed in a single sale. Although use of the mark need not always be quantitatively significant for it to be deemed genuine (judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 39), the applicant does not, however, demonstrate that that small quantity may be offset by the fact that use of the mark was extensive or very regular, since use of the contested mark in connection with retail services in relation to those goods took place only on a few occasions during each year of the relevant period. Accordingly, the argument that the applicant provided proof of genuine use of the contested mark in connection with retail services in relation to food supplements and dietetic substances must be rejected as unfounded and it is not necessary to rule on the argument that genuine use of the contested mark in connection with those goods demonstrates the genuine use of that mark in connection with retail services in relation to the general categories of pharmacy products and goods for the health sector. 54 Third, the Court also cannot accept the applicant’s argument that the use of the contested mark in connection with retail services in relation to pharmacy products and goods for the health sector is established since the Board of Appeal found that such use existed in connection with retail services in relation to cosmetics and pharmaceuticals, which belong to pharmacy products and goods for the health sector. 55 On the one hand, it must be borne in mind that the two categories consisting of pharmacy products and goods for the health sector to which, inter alia, the retail services in respect of which the contested mark was registered relate, namely retail services in relation to pharmacy products and goods for the health sector, are sufficiently broad for it to be possible to identify within them several subcategories. On the other, in the light of the case-law referred to in paragraphs 21 to 23 above, as regards the scope of the categories of goods to which the retail services at issue relate, the applicant has not succeeded in demonstrating that the use of the contested mark in connection with retail services related to the subcategories of pharmacy products and goods for the health sector other than those in respect of which the Board of Appeal found that such use had been established. Therefore, the proof of genuine use of the contested mark in connection with retail services in relation to cosmetics and pharmaceuticals does not allow the protection afforded by that mark to be maintained for the entire category of pharmacy products and goods for the health sector to which the retail services relate. 56 Furthermore, as is apparent from paragraph 50 above, such a finding cannot be invalidated, in the light of the case-law referred to in paragraphs 21 to 23 above, even if the applicant has provided proof of genuine use of the contested mark in connection with retail services in relation to hygiene articles, given that it is not disputed that the broad categories of pharmacy products and goods for the health sector are capable of being subdivided into independent subcategories other than hygiene articles, cosmetics and pharmaceuticals. 57 Moreover, it should be noted that to accept otherwise would result in an extension of the protection conferred by the contested trade mark to a disproportionate range of goods to which the retail services at issue relate (see, to that effect and by analogy, judgment of 24 April 2018, Kabushiki Kaisha Zoom v EUIPO – Leedsworld (ZOOM), T‑831/16, not published, EU:T:2018:218, paragraph 49). 58 Fourth, the Court must also reject the applicant’s argument that the places of sale indicated on the invoices produced, namely the website of the online pharmacy ‘apodiscounter.de’ and other pharmacies, drugstores and parapharmacies, make it possible to establish that all those goods are pharmacy products. In that regard, as the Board of Appeal found in paragraph 80 of the contested decision, pharmacy products include a wide range of goods which may in fact be offered in drugstores, pharmacies or parapharmacies. However, the fact that those goods are available in pharmacies does not mean that they cannot be available in other sales outlets. In any event, the sale, even the exclusive sale, of certain goods in pharmacies, drugstores and parapharmacies does not mean that they are necessarily pharmacy products (see, to that effect and by analogy, judgment of 17 November 2017, Endoceutics v EUIPO – Merck (FEMIBION), T‑802/16, not published, EU:T:2017:818, paragraph 38). 59 It follows from all of the foregoing that the applicant has failed to demonstrate, in its single plea in law, that the Board of Appeal’s findings concerning the genuine use of the contested mark in connection with retail services in relation to the four categories of goods, based on the evidence produced during the administrative procedure, were vitiated by error. 60 Accordingly, the single plea in law must be rejected and, consequently, the action must be dismissed in its entirety. Costs 61 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. 62 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO and the intervener. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Apologistics GmbH to pay the costs. Marcoulli Iliopoulos Norkus Delivered in open court in Luxembourg on 2 March 2022. E. Coulon M. van der Woude Registrar President * Language of the case: English.