Judgment — ECLI:EU:T:2015:57
Date: 2015-01-30
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of engineers’ visits and the collection or delivery of modems for a week in March 2009, also referred to in paragraph 43 of the contested decision, shows that those visits took place to the west of London and in the Thames Valley. In addition, the Board of Appeal examined hundreds of engineer’s schedules dating from August 2006 to January 2010, which, according to the statutory declaration of Mr T., concern the field-support team. The Board of Appeal also took into account web page extracts showing the nature of the services provided under the contested mark, as well as press cuttings relating to that mark and published in the relevant territory. Those clippings are taken from publications distributed in London (including Ealing and Islington), Maidenhead, Reading and Slough (United Kingdom). Finally, the Board of Appeal took into account the advertising campaigns submitted by the intervener, including a broadcast on national radio, as well as promotions held in Reading. In those circumstances, those elements enabled the Board of Appeal to reach the conclusion that the extent of the use of the contested mark was fairly significant, as the requirement of such use does not seek to assess the commercial success of the undertaking in question (see the case-law cited in paragraph 45 above). 53 Accordingly, the Board of Appeal was correct to find, in accordance with the case-law cited in paragraph 47 above, having regard to all the facts and circumstances relevant to establishing the reality of the commercial exploitation of the contested mark, that that mark had been put to genuine use in London and the Thames Valley. 54 The arguments raised by the applicant cannot invalidate that conclusion. 55 First, the applicant’s argument that the evidence does not show any use in the Thames Valley outside the Middlesex area has no basis in fact. As is apparent from the evidence listed in paragraph 52 above, genuine use of the contested mark has also been demonstrated in the county of Berkshire. 56 Secondly, the applicant’s argument that the actual use submitted did not even cover the whole of London cannot be accepted. As is apparent from the evidence relating to the advertising campaigns, they consisted of a campaign on national radio and a press campaign in the publication Metro, which is distributed throughout London. 57 Thirdly, as regards the applicant’s argument that to claim services such as information provided online from a computer database or from the Internet would presuppose a wide range of users through a wide geographical area, it is not supported by probative evidence. In any event, it must be recalled that the purpose of the requirement of genuine use is not intended to assess the commercial success of the undertaking in question (see the case-law cited in paragraph 45 above) and that, in the light of the foregoing considerations, the Board of Appeal was correct to find that there was genuine use in the present case. 58 It follows that the fourth part of the single plea must be rejected as unfounded. 59 Since none of the pleas in law put forward by the applicant in support of its application, either for the annulment or the alteration of the contested decision, are well founded, the action must be dismissed in its entirety. Costs 60 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 61 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM and the intervener. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Now Wireless Ltd to pay the costs. Frimodt Nielsen Dehousse Collins Delivered in open court in Luxembourg on 30 January 2015. [Signatures] * Language of the case: English.