Judgment (extracts);Judgment;Abstract — ECLI:EU:T:2020:439
Date: 2020-09-23
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Poland

summary, the applicant criticises the Board of Appeal for having failed to take account of the perception of the earlier three-dimensional French mark as including a blade of grass inside the bottle, which is in line, first, with the findings of the Court in the judgment ordering annulment, second, with the three-dimensional type representation and with the description of that mark as set out in its certificate of registration and, third, with the evidence submitted. In the applicant’s view, the Board of Appeal’s continued references to the artificial concept of a ‘commonly shaped bottle with a [straight] line on the body of it’ were incorrect as was its statement that ‘the line’ cannot be regarded as a blade of grass which is in the bottle. 85 By the second complaint, the applicant claims that the Board of Appeal ‘once again’ applied an improper and inadequate criterion of the genuine use of the earlier three-dimensional French mark on account of its ‘simplistic, two-dimensional’ approach to that mark, whereas the three-dimensional nature of a trade mark precludes a static, two-dimensional vision and calls for a dynamic, three-dimensional perception. In addition, the Board of Appeal cannot, in the applicant’s view, limit itself to an analysis of the items of evidence independently from each other, but must rather analyse those items jointly, bearing in mind the relationships between them, in particular between the different views of the form used on the market. It should, the applicant claims, have taken into account all the evidence in order to apply a dynamic test with a view to assessing the perspective of the consumer, who may perceive the trade mark at issue from a number of sides. 86 By the third complaint, the applicant claims that the Board of Appeal disregarded the possibility of simultaneous use of several trade marks of various types by incorrectly stating that the use of the label changes the distinctive character of the earlier three-dimensional French mark. Accordingly, by once again rejecting certain items of evidence solely on account of the presence of a label bearing the word ‘żubrówka’, which supposedly made it impossible to see what was behind it, the Board of Appeal disregarded the case-law of the Court that a number of trade marks may be put to genuine use on one product at the same time, despite being registered separately. In the present case, the earlier three-dimensional French mark is used together with trade marks of other types (word and figurative marks) which are used on a label, and the presence of a label does not preclude genuine use of the earlier mark for four reasons. First, despite the presence of the label, the blade of grass is clearly visible from the front view. Second, the very nature of the three-dimensional mark presupposes a dynamic analysis of the evidence of genuine use, all the more so because the blade of grass placed inside a plain, transparent bottle is fully visible from the sides, where the label does not interfere with any three-dimensional element (see the photographs from the side in paragraph 25 above). Third, according to the case-law, the simultaneous use of several trade marks autonomously on a product is common market practice, especially in the alcoholic drinks sector, and consumers are well used to that practice. Fourth, alcoholic beverages must always have a label containing certain information and are subject to certain legal requirements. Therefore, the presence of the label cannot be a factor excluding genuine use of the three-dimensional mark as registered. 87 By the fourth complaint, the applicant claims that the Board of Appeal incorrectly assessed genuine use within the meaning of Article 15(1)(a) of Regulation No 207/2009 by erroneously restricting it only to instances where the form is ‘the same’ or ‘identical’ to that registered and by failing to acknowledge that minor differences in the length and position of the blade of grass inside the bottle used on the French market had not altered the distinctive character of the earlier three-dimensional French mark as registered. In the applicant’s view, in describing the photographs appended to Mr K.’s statement (see paragraph 25 above) in paragraph 42 of the contested decision, the Board of Appeal failed to analyse whether or not the minor differences mentioned altered the distinctive character of the earlier mark as registered. However, comparing the representation of that mark with the views (from the front, sides or back) of the product as used on the market, according to the applicant, it appears that, first, the main distinctive element of the trade mark in question – a blade of grass in the bottle – is clearly visible from all sides due to the bottle’s transparent glass; second, the bottles are identical (shape of the body, base, neck), while the blades of grass are nearly identical and as similar as two blades of grass can be; third, EUIPO ‘exaggerated’ by stating that the blades of grass, or rather their lines, were ‘much longer’ because the difference in length is minimal; and, fourth, EUIPO incorrectly stated that the blades were ‘not 100% straight’, as they are in fact straight. 88 According to the applicant, slight differences in length and position of the blade of grass are typical examples of differences which do not alter the distinctive character of the earlier three-dimensional French mark as registered and are not noticed by average consumers. In addition, slight changes in the position of the blades in the liquid are inevitable and are due to the very nature of that trade mark. However, that does not change the fact that it is still ‘a single, long blade of grass placed inside an identical bottle in an almost diagonally inclined position’. Therefore, the form of that mark used on the market matches the graphic representation and description in its certificate of registration, there being some minor differences which do not alter its distinctive character. Applying a stricter test would in most cases lead to it being impossible in practice to prove genuine use of a three-dimensional mark. 89 Furthermore, the applicant states that it is not trying to protect the concept of any blade of grass inside any type of bottle, but rather that it is attempting to protect a specific representation of a blade of grass inside a specific bottle, which is covered by the earlier trade mark registration and which forms the basis of an opposition against a nearly identical trade mark application (both in terms of the signs and the description) filed ‘in bad faith’ by a former distributor of the applicant’s products. 90 Finally, the applicant considers that it has proved not only the time, place and extent of use but also the nature of use. It explains that it submitted a range of evidence which it believes, analysed together, should have led the Board of Appeal to find that the genuine use of the earlier mark on a mass scale on the French market between 23 June 1998 and 22 June 2003 had been proved. It states that all those documents refer to use of the same form of that mark and, indeed, of the same product, the majority of those documents were submitted in due time before the Opposition Division, and the evidence submitted out of time accompanying the statement setting out the grounds of appeal likewise confirmed the genuine use of that mark and the perception of the blade of grass by consumers as an indication of origin. In the applicant’s view, while the leaflets (aimed at French distributors and consumers), brochures, advertisements and pictures of sold products attached to affidavits show the representations of the product and its trade marks, that is to say, which trade mark was used (nature of use), the press releases, affidavits, invoices, list of promotional activities and the report issued by Institut Iri indicating the off-trade volumes in France during the years 1998 to 2006 show the time, place and extent of use – that is to say, when and how the trade mark was used. It observes in that regard that EUIPO’s objections were limited to the nature of use. 91 In reply to a written question from the Court, the applicant takes the view that the question of genuine use of the earlier mark is not governed by EU law, but rather by national law, in particular Decree No 92‑100 of 30 January 1992 and the Decision of 31 January 1992. 92 EUIPO and the intervener dispute the applicant’s arguments. 93 It must be stated that, in essence, the present plea concerns whether the earlier mark was used in the form in which it was registered (or in a form which does not alter it, or with minor variations) and consequently, the precise subject of the protection conferred by that mark. 94 In that regard, it should be recalled that Article 43(2) and (3) of Regulation No 40/94 (which became Article 42(2) and (3) of Regulation No 207/2009 and subsequently Article 47(2) and (3) of Regulation 2017/1001) provides, in essence, that, if the applicant so requests, the proprietor of an earlier EU trade mark or national trade mark who has given notice of opposition is to furnish proof that, during the period of five years preceding the date of publication of the EU trade mark application, the earlier EU or national trade mark has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and which is cited as justification for that opposition, or that there are proper reasons for non-use. In the absence of proof to that effect, the opposition is to be rejected. 95 Under the first subparagraph of Article 15(1) of Regulation No 40/94 (which became the first subparagraph of Article 15(1) of Regulation No 207/2009 and subsequently the first subparagraph of Article 18(1) of Regulation 2017/1001), if, within a period of five years following registration, the proprietor has not put the EU trade mark to genuine use in the European Union in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the EU trade mark is to be subject to the sanctions provided for in that regulation, unless there are proper reasons for non-use. 96 Under Rule 22(3) and (4) of Regulation No 2868/95, as amended (now Article 10(3) and (4) of Delegated Regulation 2018/625), the proof of use must concern the place, time, extent and nature of use which has been made of the mark and it is to be confined, generally, 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 78(1)(f) of Regulation No 207/2009 (now Article 97(1)(f) of Regulation 2017/1001). 97 Those considerations are to govern the applicant’s four complaints forming the second plea and whether the Board of Appeal was correct in finding, in paragraph 46 of the contested decision, that even when account was taken of the evidence submitted for the first time before it, the applicant had not demonstrated the nature of use of the earlier three-dimensional French mark, which was a necessary requirement for proving genuine use of that mark in accordance with Article 42(2) and (3) of Regulation No 207/2009. 98 As a preliminary point, as regards the applicable substantive law, it must be recalled that, in accordance with the case-law, where the proprietor of an EU trade mark requests proof of genuine use to be furnished, that use constitutes a condition which must be met, under Regulation No 40/94, not only by EU trade marks but also by earlier national marks relied on in support of an application for a declaration of invalidity of that EU trade mark. Therefore, the application of Article 43(2) of Regulation No 40/94 to earlier national marks under paragraph 3 of that article means that genuine use is to be defined according to Article 15 of that regulation and not in accordance with national law (see, by analogy, in relation to invalidity proceedings, judgment of 12 July 2019, mobile.de v EUIPO – Droujestvo S Ogranichena Otgovornost “Rezon” (mobile.ro), T‑412/18, not published, EU:T:2019:516, paragraph 23). The Board of Appeal therefore did not err in law, in the present dispute, in assessing whether the earlier national mark had been put to genuine use within the meaning of that provision of EU law and not under French law. 99 In the present case, it must be stated that the applicant submitted, within the time limit set by the Opposition Division, evidence showing, in its view, that the earlier mark had been put to ‘long and extensive’ use. That evidence, as described by it, includes in particular: – an affidavit dated 25 June 2007 signed by the Financial Director and President of the applicant containing figures concerning sales in France for the years 2000 to 2004 of bottles of vodka containing a blade of bison grass and bearing the mark ŻUBRÓWKA, accompanied by invoices and photographs of the product; the sales were made by the applicant’s exclusive licensee/distributor (Agros Trading SA) through the French company Pernod SA; – an affidavit dated 27 June 2007 signed by the Chairman and CEO of Pernod, containing figures concerning the sales in France for the years 2000 to 2004 of bottles of vodka containing a blade of bison grass and bearing the mark ŻUBRÓWKA, accompanied by invoices and photographs of the product, from which the applicant deduces that it is apparent, and similarly for the other affidavits, that sales volumes in France were ‘very high’ and growing between 2000 and 2004 and amounted to EUR 1.3 million in 2002 and 2003; – examples of invoices relating to the sale by Agros Trading to Pernod of bottles of vodka containing a blade of bison grass and bearing the mark ŻUBRÓWKA with a photograph of the product; – photos showing a sample of the vodka bottle sold in the French market; – examples of leaflets for French distributors relating to the years 2001 to 2003 and showing the vodka bottle bearing the ŻUBRÓWKA mark actually distributed on the market; – a list of the promotional activities which took place in France during the years 1999 to 2004, during which leaflets referring to ŻUBRÓWKA vodka were distributed to the public; – report issued by Institut Iri indicating the off-trade volumes relating to sales of ŻUBRÓWKA vodka in France during the years 1998 to 2006; – an example leaflet dated 24 May 2003 distributed by a French supermarket and showing the ŻUBRÓWKA vodka bottle; – examples of leaflets concerning off-trade promotions held in France during November 2003 and June 2006 and concerning ŻUBRÓWKA vodka. 100 That evidence included the photographs reproduced in paragraph 15 above. Subsequently, the applicant submitted, for the first time before the Board of Appeal, the evidence listed in paragraph 24 above, together with the photographs reproduced in paragraph 25 above, as well as the following photograph: 101 To establish whether that evidence proves the nature of use of the earlier mark, the scope of the protection conferred by that mark must first be identified correctly. 102 The Court considers it appropriate, at the outset, to examine the first complaint and then to examine the second, third and fourth complaints of the second plea together. The first complaint: incorrect identification of the earlier mark 103 By the first complaint, the applicant claims that the Board of Appeal failed correctly to identify the earlier mark even though it concerned a bottle containing a blade of grass. – Legislation and case-law 104 It is appropriate to recall the legislative and case-law context concerning (i) the scope of the protection conferred by a three-dimensional mark, such as the earlier mark, (ii) the requirement of clarity and precision in its representation and (iii) the requirement that that representation and any description of such a mark align with one another. 105 In accordance with the settled case-law of the Court concerning the law on EU trade marks, a sign may be registered as a mark only if the applicant for the mark provides a graphic representation in accordance with the requirement in Article 4 of Regulation No 40/94 (which became Article 4 of Regulation No 207/2009, and subsequently of Regulation 2017/1001), to the effect that the subject matter and scope of the protection sought are clearly and precisely determined (see, to that effect, judgment of 29 July 2019, Red Bull v EUIPO, C‑124/18 P, EU:C:2019:641, paragraph 36; see also, to that effect and by analogy, judgment of 27 March 2019, Hartwall, C‑578/17, EU:C:2019:261, paragraph 38 and the case-law cited). 106 Where a verbal description of the sign accompanies the application, that description must serve to clarify the subject matter and scope of the protection sought under trade mark law and such a description cannot be inconsistent with the graphic representation of a trade mark or give rise to doubts as to the subject matter and scope of that graphic representation (see, to that effect, judgment of 29 July 2019, Red Bull v EUIPO, C‑124/18 P, EU:C:2019:641, paragraph 37; see also, to that effect and by analogy, judgment of 27 March 2019, Hartwall, C‑578/17, EU:C:2019:261, paragraphs 39 and 40). 107 The graphic representation must enable the sign to be represented visually, particularly by means of images, lines or characters, so that it can be precisely identified. First, the function of the requirement for a graphic representation is, in particular, to define the mark itself in order to determine the precise subject of the protection afforded by the registered mark to its proprietor. Next, in order to fulfil that function vis-à-vis the competent authorities and the public, in particular economic operators, the graphic representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective (see, to that effect, judgment of 21 June 2017, M/S. Indeutsch International v EUIPO – Crafts Americana Group (Representation of chevrons between two parallel lines), T‑20/16, EU:T:2017:410, paragraphs 33 and 34 and the case-law cited; see also, to that effect and by analogy, judgments of 12 December 2002, Sieckmann, C‑273/00, EU:C:2002:748, paragraphs 46 and 48 to 55, and of 24 June 2004, Heidelberger Bauchemie, C‑49/02, EU:C:2004:384, paragraphs 25 and 27 to 32). In particular, the object of the representation is specifically to avoid any element of subjectivity in the process of identifying and perceiving the sign. Therefore, the means of graphic representation must be unequivocal and objective (see, to that effect and by analogy, judgment of 12 December 2002, Sieckmann, C‑273/00, EU:C:2002:748, paragraph 54). 108 A graphic representation which lacks precision and clarity does not make it possible to determine the scope of the protection sought (see, to that effect and by analogy, judgment of 27 November 2003, Shield Mark, C‑283/01, EU:C:2003:641, paragraph 59). The determining factor in the light of the scope of protection of the mark is the way in which it will be perceived on the sole basis of the sign as registered (see, to that effect, judgment 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 44). The requirement for a graphic representation is intended, in particular, to define the mark itself in order to determine the precise subject of the protection afforded by the registered mark to its proprietor. Therefore, it is for the trade mark applicant to file a graphic representation of the mark corresponding precisely to the subject matter of the protection he or she wishes to secure. Once the trade mark is registered, its proprietor is not entitled to a broader protection than that afforded by that graphic representation or which does not correspond to it (see, to that effect, judgments of 30 November 2017, Red Bull v EUIPO – Optimum Mark (Combination of the colours blue and silver), T‑101/15 and T‑102/15, EU:T:2017:852, paragraph 71, and of 19 June 2019, adidas v EUIPO – Shoe Branding Europe (Representation of three parallel stripes), T‑307/17, EU:T:2019:427, paragraph 30 and the case-law cited). 109 In addition, Rule 3(3) of Regulation No 2868/95 provides that the application for registration ‘may contain a description of the mark’, which is optional. Therefore, where a description is included in the application for registration, that description must be examined in combination with the graphic representation. Indeed, it follows from the judgment of 6 May 2003, Libertel (C‑104/01, EU:C:2003:244), that a description of a sign may be required in order to fulfil the requirements of Article 4 of Regulation No 207/2009 (see, to that effect, judgments of 30 November 2017, Combination of the colours blue and silver, T‑101/15 and T‑102/15, EU:T:2017:852, paragraphs 79 and 80, and of 19 June 2019, Representation of three parallel stripes, T‑307/17, EU:T:2019:427, paragraph 31). However, examining the description in combination cannot broaden the precise subject of the protection which is defined by the representation (see paragraph 108 above), but can only contribute to clarifying it and making it more precise. 110 As regards three-dimensional trade marks, Rule 3(4) of Regulation No 2868/95 (now Article 3(3)(c) of Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 laying down detailed rules for the implementing certain provisions of Regulation 2017/1001, and repealing Implementing Regulation (EU) 2017/1431 (OJ 2018 L 104, p. 37)), which does not require a description for such marks, provides as follows: ‘Where registration of a three-dimensional mark is applied for, the application shall contain an indication to that effect. The representation shall consist of a photographic reproduction or a graphic representation of the mark. The representation may contain up to six different perspectives of the mark.’ 111 It follows from the above that, as regards the interpretation and application of EU trade mark law, the representation of the trade mark, which must be clear and precise, defines the scope of the protection conferred by the registration. In addition, any description which accompanies the representation must align with the representation as registered and cannot extend the scope of the mark thereby defined. That requirement that any description align with the representation is therefore a corollary of the requirement that the representation which defines the scope of the protection be clear and precise. 112 In the light of those principles, the Board of Appeal was correct in observing, in paragraph 38 of the contested decision, that the (at that time graphic) representation of the mark as filed defines its scope of protection, and not the description of the mark as provided by the applicant, before adding that a mark description must define what can be seen in the mark representation and that the scope of protection is not broadened by a possible interpretation of what the applicant meant by that representation or what it had in mind. – Application in the present case to defining the precise subject of the protection conferred by the earlier mark and to whether its description aligns with its representation 113 In the present case, it is clear from the certificate of registration of the earlier three-dimensional French mark, issued by the Institut national de la propriété industrielle (INPI, France), that that mark contains a representation (reproduced in paragraph 7 above), with a description that ‘the mark consists of a bottle such as is pictured above, inside which a blade of grass is placed in the body of the bottle in an almost diagonally inclined position’. 114 As regards that certificate of registration, it should be pointed out, at the outset, that the description of the earlier mark does not align with its representation. Indeed, it is clear that the representation involves a line, and not a blade of grass as described. In addition, in the representation, the line appears rather to be located on the body of the bottle and it is not clear that it is found inside the bottle. Furthermore, the description of that mark, since it does not align with its representation, cannot serve to clarify it or make it more precise. 115 Therefore, it must be stated that the Board of Appeal was correct in observing, in paragraph 39 of the contested decision that (i) the graphical representation of the earlier mark showed ‘a commonly shaped bottle with a line on the body of it which r[an] diagonally from the left side of the bottle, starting just below the neck, to the bottom edge of the base’, (ii) the line, shown as a fixed part of the body of the bottle, was a straight diagonal line and nothing else and (iii) that fact was not altered by the description provided by the applicant because the scope of protection of the mark was not defined by what the applicant had in mind when filing the mark. 116 As the intervener observes, that assessment by the Board of Appeal is in line with the considerations relevant for the correct identification of a three-dimensional mark, according to which it is the representation which is decisive in defining the scope of protection of such a mark and the description cannot alter or interpret the representation of that mark. 117 That finding is not called into question by the applicant’s arguments that the perception of the earlier three-dimensional French mark as involving a blade of grass inside the bottle corresponds, first, to the Court’s findings in the judgment ordering annulment, second, to the representation, type and description of that mark set out in its certificate of registration and, third, to the evidence submitted. 118 First, in the judgment ordering annulment, the Court in no way made a finding on the substance of the precise subject of the protection conferred by the earlier three-dimensional French mark. It confined itself to upholding the third plea in the first action, which was based on a failure to state reasons and a failure to exercise discretion in relation to the evidence of use submitted for the first time before the Board of Appeal, that is to say, a plea regarding procedure relating to the failure to take account of the evidence of use, and not relating to how the scope of protection was defined (see also findings in respect of the first plea in paragraphs 70 to 82 above). 119 Second, the Board of Appeal’s assessment that that mark protects ‘a commonly shaped bottle with a [straight] line on the body of it which runs diagonally from the left side of the bottle, starting just below the neck, to the bottom edge of the base’ is based precisely on the representation of the earlier three-dimensional French mark in its certificate of registration. On the other hand, the alleged presence of a blade of grass is not apparent from the representation, but only from the description. 120 In fact, as the intervener submits, that description contains a misinterpretation of the representation because it interprets the graphic element of the line beyond what is visible by stating that that element is a blade of grass. Indeed, in the black and white representation (and therefore not limited to a particular colour such as green-brown, but rather covering all colours), the graphic element is a very straight black line, with no bends or irregularities, whereas a blade of grass is normally not straight, but has bends and irregularities. Moreover, in that representation, it is not clear that the line is inside the bottle, but rather it appears to be situated on the body of the bottle. Consequently, any interpretation or alteration of the representation by the description would fail to have regard to the principles recalled in paragraphs 104 to 112 above. 121 The intervener adds that if the applicant had wanted to protect a blade of grass in a bottle, it should have filed a completely true to life picture of a blade of grass, as done for other trade marks registered by the applicant. 122 In that regard, it should be noted that the Court has already ruled on the precise subject of the protection conferred by the applicant’s three-dimensional Polish mark No 189866, reproduced below: 123 The Court accordingly held, in paragraphs 94, 95, 97 and 98 of the judgment of 12 November 2015, CEDC International v OHIM – Fabryka Wódek Polmos Łańcut (WISENT) (T‑449/13, not published, EU:T:2015:839) and in paragraphs 96, 97, 99 and 100 of the judgment of 12 November 2015, CEDC International v OHIM – Fabryka Wódek Polmos Łańcut (WISENT VODKA) (T‑450/13, not published, EU:T:2015:841), that the earlier conflicting mark contained a figurative element consisting of a thin line which traverses the bottle and that that line was straight, inclining slightly to the left, green in colour and interrupted by the label. According to the Court, such schematic representations of what might constitute a blade of grass cannot, however, be perceived as an actual blade of grass. The feature present in the marks at issue, as represented and registered, will be perceived as what it is, that is to say, a simple line, and not as a blade of grass. Only a more realistic representation of a blade of grass, or a true image of a blade of grass placed inside a bottle, could refer to the image of a blade of grass, which, furthermore, could be confirmed by the description of it. However, the Court ruled that that was not so in the present case. Consequently, in its view, the Board of Appeal was – on the basis of the perception of that figurative element as a simple straight line, slightly inclined or on the diagonal, traversing a bottle – correct in finding that, as other figurative elements were present, that element was less distinctive and played a secondary role in the assessment of the similarity of the marks at issue. The Court ruled that that finding cannot be called into question by the applicant’s argument that the blade of grass is a particularly striking or original element. In that regard, according to the Court, it should be recalled that the figurative element in the marks at issue, as represented and registered, is a straight line, slightly inclined or diagonal, which will be perceived as a line traversing the bottle and not as a blade of grass. As a straightforward shape, that line does not appear to be particularly original or striking. In addition, in the case of both the mark applied for and the earlier mark, that line is subordinate due to the presence of other word and figurative elements in those marks. Consequently, it becomes less visible and, accordingly, its capacity to have an impact on the mind of the consumer is diminished. 124 As regards the earlier three-dimensional French mark at issue in the present case, it must be stated all the more that only a more realistic representation of the blade of grass, or a true image of a blade of grass placed inside a bottle, could have clearly and precisely established the presence of a blade of grass in that mark, which, furthermore, could have been confirmed by the description of that mark, which would then have been in alignment with the representation. That is not, however, so in the present case. 125 Third, in general, evidence of use which is submitted cannot influence the definition of the precise subject of the protection afforded by a mark. Indeed, that subject is defined by the representation of the mark set out in the certificate of registration, possibly clarified and made more precise by the description where the description aligns with the representation, but cannot be modified in any way by the actual use of the mark on the market. Moreover, Article 44(2) of Regulation No 40/94 (which became Article 43(2) of Regulation No 207/2009, and subsequently Article 49(2) of Regulation 2017/1001) does not allow a subsequent amendment to the application substantially to change the mark. 126 After all, in the present case, the lack of precision and clarity of the representation, together with its description, rather tends to be confirmed by the fact that the applicant has provided evidence which reproduced the earlier mark differently in comparison to the nature, length and position of the line in the representation set out in the certificate of registration (see, to that effect, judgments of 29 July 2019, Red Bull v EUIPO, C‑124/18 P, EU:C:2019:641, paragraph 45, and of 30 November 2017, Combination of the colours blue and silver, T‑101/15 and T‑102/15, EU:T:2017:852, paragraph 65). 127 Finally, in paragraph 45 of the contested decision, the Board of Appeal correctly stated that the earlier mark cannot protect the concept of a blade of grass in a bottle. 128 In that regard, the Court held that an abstract representation of a concept in any conceivable form will not exhibit the qualities of precision and uniformity required by Article 4 of Regulation No 40/94. Indeed, such a representation would allow numerous different combinations, which would not permit the consumer to perceive and recall a particular combination, thereby enabling it to make further purchases with certainty, any more than they would allow the competent authorities and economic operators to know the scope of the protection afforded to the proprietor of the trade mark (see, to that effect, judgment of 29 July 2019, Red Bull v EUIPO, C‑124/18 P, EU:C:2019:641, paragraph 38; see also, to that effect and by analogy, judgment of 24 June 2004, Heidelberger Bauchemie, C‑49/02, EU:C:2004:384, paragraphs 33 to 35). 129 Furthermore, the Court ruled that the subject matter of an application for registration of a trade mark which relates to every conceivable form of a product or part of a product does not constitute a ‘sign’ within the meaning of Article 4 of Regulation No 40/94 and, therefore, is not capable of constituting a trade mark within the meaning of that provision (see, by analogy, judgment of 25 January 2007, Dyson, C‑321/03, EU:C:2007:51, paragraph 40). 130 It follows that trade mark law does not permit protection of a concept or of an idea, but only protection of a concrete expression of a concept or of an idea, such as that incorporated in the sign and defined by the representation of that sign. 131 The applicant itself acknowledges that it does not intend to appropriate to itself any representation of a blade of grass in a bottle, but rather claims exclusivity over a specific representation, which forms part of its mark, of a combination of those two elements. 132 It is therefore the concrete representation of the earlier mark that determines the precise subject of the protection conferred by that mark for the purpose of examining the nature of use of that mark. 133 Clearly, it is apparent from the representation of the earlier mark, as correctly identified by the Board of Appeal, that the precise subject of the protection conferred by that mark relates solely to ‘a commonly shaped bottle with a line on the body of it which runs diagonally from the left side of the bottle, starting just below the neck, to the bottom edge of the base’ and not, as the applicant claims, a blade of grass. 134 The first complaint must therefore be rejected as being unfounded. The second, third and fourth complaints, alleging, respectively, that (i) an erroneous and inadequate criterion of genuine use of the earlier mark was applied, (ii) account was not taken of the possibility of the joint use of several trade marks and (iii) there was no alteration of the distinctive character of the earlier mark at the time of its use 135 By the second complaint, the applicant claims that the Board of Appeal ‘once again’ applied an improper and inadequate test of genuine use of the earlier three-dimensional French mark on account of its ‘simplistic, two-dimensional’ approach, did not take a dynamic approach in relation to the views from various sides, and in doing no more than assessing the items of evidence independently of each other, failed to analyse them jointly. By the third complaint, the applicant claims that the Board of Appeal disregarded the possibility of the joint use of several trade marks of various types by incorrectly stating that the use of the label changes the distinctive character of the mark at issue. By the fourth complaint, it submits that the Board of Appeal incorrectly assessed genuine use of that mark within the meaning of Article 15(1)(a) of Regulation No 207/2009, by erroneously restricting genuine use only to cases where the form is ‘the same’ or ‘identical’ to that registered and by failing to acknowledge that minor differences in the length and position of the blade of grass in the bottle used on the French market had not altered the distinctive character of that mark as registered. – Legislation and case-law 136 Pursuant to the provisions of Article 15(2)(a) of Regulation No 40/94 (which became point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 and subsequently point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001), proof of genuine use of an earlier national or EU trade mark also includes evidence of the use of the earlier mark in a form differing in elements which do not alter the distinctive character of that mark in the form in which it was registered. 137 It follows directly from the wording of Article 15(2)(a) of Regulation No 40/94 that the use of the trade mark in a form which is different from the form in which it was registered is regarded as use for the purposes of Article 15(1), to the extent that the distinctive character of the trade mark in the form in which it was registered is not changed (see, to that effect, judgments of 18 July 2013, Specsavers International Healthcare and Others, C‑252/12, EU:C:2013:497, paragraph 21; of 28 February 2017, Labeyrie v EUIPO – Delpeyrat (Representation of a sowing of light coloured fish on a dark background), T‑767/15, not published, EU:T:2017:122, paragraph 18; and of 28 June 2017, Tayto Group v EUIPO – MIP Metro (real), T‑287/15, not published, EU:T:2017:443, paragraph 22). The rule whereby the use of a mark in a form differing in elements which do not alter the distinctive character of that mark in the form in which it was registered is also regarded as use of that mark may be referred to, for the sake of brevity, as the ‘law of permissible variations’ (see, to that effect, judgment of 19 June 2019, Representation of three parallel stripes, T‑307/17, EU:T:2019:427, paragraph 48). 138 Furthermore, it should be clarified that Article 15(2)(a) of Regulation No 40/94 relates to a situation where a registered national or EU trade mark is used in trade in a form which is slightly different from the form in which registration was made. The purpose of that provision, which avoids imposing strict conformity between the used form of the trade mark and the form in which the mark was registered, is to allow its proprietor, on the occasion of its commercial exploitation, to make variations in the sign 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 form of the sign used in trade differs from the form in which it was registered only in negligible elements, so that the two signs can be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (judgments of 23 February 2006, Il Ponte Finanziaria v OHIM – Marine Enterprise Projects (BAINBRIDGE), T‑194/03, EU:T:2006:65, paragraph 50; of 28 February 2017, Representation of a sowing of light coloured fish on a dark background, T‑767/15, not published, EU:T:2017:122, paragraph 20; and of 28 February 2019, Lotte v EUIPO – Générale Biscuit-Glico France (PEPERO original), T‑459/18, not published, EU:T:2019:119, paragraph 90). 139 Accordingly, a finding of an alteration of the distinctive character of the mark as registered requires an assessment of the distinctive and dominant character of the added elements based on the inherent qualities of each of those elements and the relative position of the different elements within the arrangement of the trade mark (see judgment of 10 June 2010, Atlas Transport v OHIM – Hartmann (ATLAS TRANSPORT), T‑482/08, not published, EU:T:2010:229, paragraph 31 and the case-law cited; judgments of 24 September 2015, Klement v OHIM – Bullerjan (Form of an oven), T‑317/14, not published, EU:T:2015:689, paragraph 32, and of 28 February 2017, Representation of a sowing of light coloured fish on a dark background, T‑767/15, not published, EU:T:2017:122, paragraph 21). 140 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 where it is used solely as part of a complex trade mark or jointly with another 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 (judgments of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 33; of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 29; and of 28 February 2017, Representation of a sowing of light coloured fish on a dark background, T‑767/15, not published, EU:T:2017:122, paragraph 22). 141 For a trade mark to possess distinctive character for the purposes of Regulation No 40/94, it must serve to identify the product in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings (see judgment of 18 July 2013, Specsavers International Healthcare and Others, C‑252/12, EU:C:2013:497, paragraph 22 and the case-law cited; judgment of 28 February 2017, Representation of a sowing of light coloured fish on a dark background, T‑767/15, not published, EU:T:2017:122, paragraph 19). 142 Accordingly, the condition of genuine use of a trade mark may only be satisfied where a trade mark is used in conjunction with another mark, provided that the mark continues to be perceived as indicative of the origin of the product concerned (judgments of 28 February 2017, Representation of a sowing of light coloured fish on a dark background, T‑767/15, not published, EU:T:2017:122, paragraph 48; of 10 October 2017, Klement v EUIPO – Bullerjan (Form of an oven), T‑211/14 RENV, not published, EU:T:2017:715, paragraph 47; and of 28 February 2019, PEPERO original, T‑459/18, not published, EU:T:2019:119, paragraph 97). 143 Account must also be taken of the particular category of the earlier trade mark used solely as part of a complex trade mark or in conjunction with another mark (judgment of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 34). 144 It is true that for three-dimensional marks, consisting, as in the present case, of the appearance of the product itself, it is settled case-law that the criteria for assessing their distinctive character are no different from those applicable to other categories of trade mark (see judgment of 20 October 2011, Freixenet v OHIM, C‑344/10 P and C‑345/10 P, EU:C:2011:680, paragraph 45 and the case-law cited). That case-law can be applied to the assessment of the genuine use of such three-dimensional marks. Indeed, under neither Regulation No 40/94 nor the case-law are different, or stricter, criteria to be applied to them. In particular, it cannot be required as a matter of principle that those marks be used in isolation or that they have a particularly high degree of distinctive character, whether inherent or acquired through use (judgment of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 35). 145 However, when assessing both distinctive character and alteration in case of joint use with another mark, account must also be taken of the specific perception of the shapes of the goods by the average consumer. Nonetheless, for the purpose of applying those criteria, the average consumer’s perception is not necessarily the same in respect of a three-dimensional mark consisting of the shape of the product itself as it is in the case of a word or figurative mark consisting of a sign which is independent of the appearance of the products it denotes. Average consumers are not in the habit of making assumptions as to the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element and it may therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark. In those circumstances, the more closely the shape for which registration is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 (see judgment of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraphs 30 and 31 and the case-law cited; judgments of 25 October 2007, Develey v OHIM, C‑238/06 P, EU:C:2007:635, paragraph 80, and of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 36). 146 Applied to the assessment of genuine use of a three-dimensional mark consisting of the shape of the product itself, that case-law implies that, in the event of joint use of the product with another mark, it may be easier to establish the alteration of the distinctive character of such a three-dimensional mark than the alteration of the distinctive character of a word or figurative mark (judgment of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 37). 147 As regards a three-dimensional mark consisting of the shape of the product itself, to reach the conclusion that the earlier mark was actually used in accordance with its essential function, the proof of use must take the form of elements which enable an unequivocal conclusion to be drawn that the consumer is in a position to associate the shape protected by the earlier mark with a particular undertaking (see, to that effect, judgments of 27 September 2018, M J Quinlan & Associates v EUIPO – Intersnack Group (Shape of a kangaroo), T‑219/17, not published, EU:T:2018:610, paragraph 33, and of 28 February 2019, PEPERO original, T‑459/18, not published, EU:T:2019:119, paragraph 72). 148 Finally, it must be held that, where a trade mark is extremely simple, even minor alterations to that mark are capable of constituting significant variations, so that the amended form may not be regarded as broadly equivalent to the registered form of that mark. Indeed, the simpler the mark, the less likely it is to have a distinctive character and the more likely it is for an alteration to that mark to affect one of its essential characteristics and thereby perception of that mark by the relevant public (see, to that effect, judgments of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraphs 33 and 52 and the case-law cited, and of 19 June 2019, Representation of three parallel stripes, T‑307/17, EU:T:2019:427, paragraph 72). – Application to the present case 149 In the present case, as regards the fourth complaint, in the first place, it is clear that the earlier mark, as represented, which protects ‘a commonly shaped bottle with a [straight] line on the body of it which runs diagonally from the left side of the bottle, starting just below the neck, to the bottom edge of the base’ and not a blade of grass (see paragraphs 115 and 133 above), has not been used as such, in an identical shape by the applicant in the evidence provided. 150 As regards the evidence submitted before the Opposition Division (see paragraph 15 above) which included bottles, none of those bottles bore an uninterrupted diagonal line and even less so a straight line identical to that found in the earlier mark. In addition, that line is not affixed on the outside surface of any of the bottles and did not appear on or across the label itself. Furthermore, all the bottles have a non-transparent label (illegible or bearing the words ‘żubrówka bison vodka’), which is capable of affecting the visibility and perception of what is behind it. 151 As regards the evidence submitted out of time before the Board of Appeal (see paragraph 25 above) and, more specifically the photographs, together with Mr K.’s statement, of the bottle with the ‘żubrówka bison vodka’ label and depicted that time not only with a view from the front but also from the back and with two side views, it must be stated that, from the side views, a long uninterrupted line can indeed be observed. 152 However, those lines appearing in the two side views in that item of evidence, although slightly different from one another, are very different from the straight diagonal line in the earlier mark. They differ in their nature, not being completely straight but rather slightly curved, in their being longer and in their position, since they start and end at different points on the edge and in the bottom part of the bottle, which also results in a different angle. 153 Therefore, the Board of Appeal correctly concluded in paragraphs 40 to 42 of the contested decision that none of the evidence submitted before the Opposition Division (see paragraph 15 above) or before it (see paragraph 25 above) showed the mark in its registered form, that is to say, as it is graphically represented in the certificate of registration. 154 In the second place, it must be observed that nor has the applicant used the earlier mark, as it was represented, which protects ‘a commonly shaped bottle with a [straight] line on the body of it which runs diagonally from the left side of the bottle, starting just below the neck, to the bottom edge of the base’ and not a blade of grass (see paragraphs 115 and 133 above), in a form differing in elements which do not alter the distinctive character of the mark in the form in which it had been registered or by negligible variations. 155 In that regard, account must be taken, as the Board of Appeal did in paragraph 44 of the contested decision, of the fact that the distinctive character of the earlier mark as such is weak. Indeed, that mark consists of a commonly shaped bottle with a simple straight line of a precise length, placed in a specific position resulting in a particular angle. In the overall impression, it is that simple straight line, and its precise length and specific position, that renders the trade mark a little distinctive. 156 Accordingly, the scope of protection of the earlier mark as defined by its graphic representation proves to be narrow and its distinctive character is easily altered (see paragraph 140 above), all the more so because it is a three-dimensional mark (see paragraphs 143 and 147 above). 157 The forms set out in the evidence submitted differ from the form protected by the earlier mark by significant variations in nature, length and position (see paragraph 152 above) and cannot be regarded as ‘significant’ or ‘broadly equivalent’ to the mark as registered within the meaning of the case-law (see paragraph 148 above). 158 Therefore, the Board of Appeal was correct in finding in paragraphs 43 to 45 of the contested decision that that use, as demonstrated by the evidence submitted for the first time before it, not only was not use of the earlier mark as registered, but was also not use in a form which differed in elements which did not alter the distinctive character of the mark in the form in which it had been registered as provided for in point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009. 159 Thus, clearly the earlier mark as used, as may be seen from the evidence submitted, does not align with that mark as represented and registered, and the differences between them constitute an alteration of the distinctive character of the mark as represented and registered which goes beyond negligible variations under the ‘law of permissible variations’. 160 The fourth complaint must therefore be rejected as unfounded. 161 As regards the second complaint, concerning the criteria for assessing use in respect of three-dimensional marks, first of all, it is sufficient to note that, in essence, it reiterates the third complaint of the first plea, which in paragraph 81 above has already been rejected as having no factual basis. 162 In addition, as EUIPO pointed out, while it is certainly correct that the three-dimensional character of a trade mark calls for a dynamic approach which takes account of the different views of the trade mark as presented in the evidence of use as a whole, the Board of Appeal can consider such views only if they are actually submitted. The file contains only one set of reproductions of a bottle from different angles, namely the photographs attached to Mr K.’s statement which were submitted out of time (see paragraph 25 above) and the Board of Appeal analysed that single set of pictures from all angles (paragraph 42 of the contested decision). However, adopting a ‘dynamic approach’ cannot mean having to imagine how the different sides of a product could possibly look based on a view from only one side, when no proof has been submitted in that regard. 163 Even for the photographs reproduced in paragraph 25 above, in respect of which a dynamic analysis makes it possible to discern a slightly curved line, or even a blade of grass, behind the label, clearly that line, by its nature, length and position, differs substantially from the earlier mark, which is defined as ‘a commonly shaped bottle with a [straight] line on the body of it which runs diagonally from the left side of the bottle, starting just below the neck, to the bottom edge of the base’. 164 Finally, as regards the claim that there was no joint analysis of the evidence submitted to prove the extent of use, it is sufficient to recall that the Board of Appeal correctly took the view, on the basis of the evidence submitted, that the differences between the mark as used and the mark as registered were such as to alter the distinctive character of the mark as registered. Therefore, the Board of Appeal was also correct, in paragraphs 46 and 47 of the contested decision, in being able to conclude that, even taking account of the evidence submitted for the first time before it, the applicant had failed to prove the nature of use of the earlier mark, which was a necessary requirement for proving genuine use of that mark, and from that inferred that, for that reason alone, it was not necessary to ‘further’ examine that evidence in order to assess the extent of use of that mark. Indeed, while the Board of Appeal observed, correctly, that the evidence of use did not align with the scope of the protection conferred by the earlier mark (see paragraphs 149 to 160 above), it was not required to analyse that evidence further, in particular in relation to the extent of use. 165 The second complaint must therefore also be rejected as ineffective. 166 As regards the third complaint, concerning the possibility of the joint use of several trade marks of various types, it is true that it must be borne in mind that, in accordance with established case-law, the use of a mark may also encompass both its independent use and its use as part of another mark or in conjunction with that other mark (judgment of 18 April 2013, Colloseum Holding, C‑12/12, EU:C:2013:253, paragraph 32; see also, to that effect, judgments of 18 July 2013, Specsavers International Healthcare Ltd and Others, C‑252/12, EU:C:2013:497, paragraphs 23, 24 and 26, and of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 29). 167 However, it is important to make clear that a registered trade mark which is used only as part of a composite mark or in conjunction with another mark must continue to be perceived as indicative of the origin of the product at issue for that use to be covered by the term ‘genuine use’ within the meaning of Article 15(1) of Regulation No 40/94 (judgments of 18 April 2013, Colloseum Holding, C‑12/12, EU:C:2013:253, paragraph 35, and of 24 September 2015, Form of an oven, T‑317/14, not published, EU:T:2015:689, paragraph 30). 168 In the present case, in the first place, it should be noted that, while the Board of Appeal referred to the presence of the label (illegible or bearing the words ‘żubrówka bison vodka’), that was primarily because it took the view that the presence of that label affected the visibility and perception of the earlier three-dimensional French mark on the evidence of use, and not only because the presence of a mark of another type, whether verbal or figurative, altered the distinctive character of that mark. Indeed, in the photographs reproduced in paragraph 15 above, depending on the photograph in question, either no line is visible, or nothing is visible in the bottom part of the bottle under the label, or indeed a number of (two or three) lines are visible under the label. 169 Therefore, as EUIPO maintains, it is not the sole fact that several marks were used on the same product that led the Board of Appeal to the conclusion that the use of the earlier mark was not proven, but primarily the fact that it was difficult to detect what was behind the label, especially since the photographs were contradictory as to the absence or existence of a line or blade of grass. 170 It follows that the Board of Appeal in no way called into question the case-law on the possibility of joint use of several marks of different types cited in paragraphs 166 and 167 above, in accordance with which the condition of genuine use of a mark may be fulfilled when a mark is used in conjunction with another mark, provided that the mark continues to be perceived as indicative of the origin of the product at issue. 171 In the second place and in any event, it must be held, a view shared by the intervener, that the conditions for such joint use of a three-dimensional mark in conjunction with other marks are not fulfilled in the present case. While the combined use of two marks may, admittedly, in general, constitute use of one of those marks, that is, however, the case only if the distinctive character of that mark is not altered, that condition being fulfilled only if the relevant public perceives that mark individually and independently of the other mark as indicative of origin. 172 In the present case, not only is the earlier mark used in conjunction with another mark, affixed on a non-transparent label, which impedes visibility and affects the perception of the distinctive part of that earlier mark, but, in any event, the applicant has failed to demonstrate, in the evidence of use submitted, the individual and independent perception of that mark as indicative of origin by the relevant public, for example by producing a market survey. 173 In that regard, the Court has already ruled, in relation to a drawing comparable to photographs, that (i) the line was subordinate due to the presence of other word and figurative elements in the marks used jointly, (ii) it thereby became less visible and (iii) accordingly, its capacity to have an impact on the mind of the consumer was diminished (see, to that effect, judgments of 12 November 2015, WISENT, T‑449/13, not published, EU:T:2015:839, paragraph 98, and of 12 November 2015, WISENT VODKA, T‑450/13, not published, EU:T:2015:841, paragraph 100). 174 That is also so in the present case. It has not been demonstrated that the earlier trade mark, when used together with the word mark ŻUBRÓWKA BISON VODKA or with the graphic elements concerning the bison on the label, continues to be perceived as indicative of origin by the relevant public. That is even less the case because the inherent distinctive character of the earlier mark is weak (see paragraph 155 above), clearly weaker than that of that word mark and, consequently, substantially altered by it (see paragraph 156 above). 175 Moreover, it must be recalled that the distinctive character of the earlier mark is primarily altered by the fact that the lines present in the evidence of use, even though submitted out of time, differ substantially from that shown in the representation of the earlier mark by their nature, being not 100% straight but slightly curved, by their being longer and their position being different, their not starting at the same point in the bottom part of the bottle, resulting in a different angle (see paragraph 151 above). In the overall impression, it is that straight line, with its specific position and length, which makes the earlier mark a little distinctive, since it consists of a commonly shaped bottle with such a line. 176 Furthermore, as regards market practice in the alcoholic beverages sector, it must be recalled that the judgment of 8 December 2005, Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH) (T‑29/04, EU:T:2005:438), concerns the combination of a number of word and figurative marks on the labels of a bottle, and not three-dimensional marks. In addition, even where there is an obligation to label bottles, it is for the owner to decide on the format, colour, size and layout of the label, as there is no requirement under legislation to use non-transparent labels which impede visibility and affect the perception by the relevant public of any blade of grass in the bottles. 177 Since the distinctive character of the earlier mark, which is inherently weak, is substantially altered in the evidence of use by the other marks or elements found on the label, the requirements for joint use are not fulfilled. 178 The third complaint must be rejected as having no factual basis and, in any event, as being unfounded. 179 It is therefore necessary to uphold the assessment of the Board of Appeal that the use of the earlier three-dimensional French mark, as represented and registered, has not been proven. 180 In the light of all of the foregoing, the second plea must be rejected. The third plea in law: infringement of Article 75 and Article 76(1) of Regulation No 207/2009 181 By the third plea, the applicant claims that the Board of Appeal infringed Article 75 of Regulation No 207/2009 (failure to state reasons) and Article 76(1) of Regulation No 207/2009 (failure to examine the facts correctly). In that regard, it relies on four complaints, the first three of which must be examined together, concerning the ground for opposition set out in Article 8(1) of Regulation No 207/2009, and the last of which must be examined separately, concerning the grounds for opposition set out in Article 8(3) and (4) of that regulation. The first three complaints concerning various infringements of the obligation to state reasons 182 By its first complaint, the applicant claims that the Board of Appeal’s finding that ‘the distinctive character of the earlier French mark … is rather weak’ (paragraph 44 of the contested decision) is totally arbitrary and not supported by any reasoning nor corroborated by any evidence. In addition, according to the applicant, that finding is contrary to the evidence submitted (namely the extracts from the French press and from French websites) referring to a single blade of grass as a symbol of the ŻUBRÓWKA mark and showing that, for consumers, ‘this element is original and serves as an indication of the [applicant’s] original product’. 183 By the second complaint, the applicant maintains that the Board of Appeal’s reasoning contains an internal contradiction by stating, on the one hand, that the earlier mark was ‘rather weak’ (paragraph 44) but by ‘suggesting’, on the other hand, that even the slightest change in the ‘line’ would alter the distinctive character of the trade mark (paragraphs 42 to 44 of the contested decision). In the applicant’s view, if the trade mark or elements thereof are found to be only a little distinctive, then clearly minor changes to the elements which are only a little distinctive cannot alter the distinctive character of the trade mark. 184 By the third complaint, the applicant claims that the Board of Appeal has failed to explain to the requisite legal standard why the evidence of the use of the earlier three-dimensional French mark (in particular the side views) did not constitute use in a form differing in elements which do not alter the distinctive character of the trade mark in the form in which it was registered, whereas the use of a three-dimensional mark in varying sizes or with labels added amounts to use of the trade mark as registered. 185 EUIPO and the intervener dispute the applicant’s arguments. 186 It should be recalled that, pursuant to the first sentence of Article 75 of Regulation No 207/2009 (now the first sentence of Article 94 of Regulation 2017/1001), decisions of EUIPO are to state the reasons on which they are based. Furthermore, Rule 50(2)(h) of Regulation No 2868/95 (now, in essence, Article 32(i) of delegated Regulation 2018/625) provides that the decision of the Board of Appeal is to contain the reasons for which the decision had been taken. That obligation has the same scope as that enshrined in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union and in Article 296 TFEU. It is settled case-law that the statement of reasons required by Article 296 TFEU must set out clearly and unequivocally the reasoning of the body which adopted the act in question. That duty has two purposes: first, to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights and, second, to enable the EU courts to exercise their power to review the legality of the decision. Whether the statement of reasons for a decision meets those requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see the judgment ordering annulment, paragraph 42 and the case-law cited). 187 In addition, in accordance with settled case-law, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, the latter going to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging an inadequate statement of reasons or a lack of such a statement (see judgment of 19 September 2018, Volkswagen v EUIPO – Paalupaikka (MAIN AUTO WHEELS), T‑623/16, not published, EU:T:2018:561, paragraph 71 and the case-law cited). 188 For its part, Article 76(1) of Regulation No 207/2009, as amended by Regulation 2015/2424, entitled ‘Examination of the facts by [EUIPO] of its own motion’, is worded as follows: ‘In proceedings before it, [EUIPO] shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, [EUIPO] shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.’ 189 As regards the first complaint, it is sufficient to state that the Board of Appeal, in paragraph 44 of the contested decision, justified its observation that ‘the distinctive character of the earlier … mark … [wa]s rather weak’ by the fact that ‘it consist[ed] of a commonly shaped bottle with a simple straight line placed in a specific positioning and length on it’. It thereby provided adequate reasoning. Moreover, that reasoning is well founded (see paragraph 155 above). 190 As regards the second complaint, it is sufficient to state that the Board of Appeal’s assessments in paragraphs 42 and 44 of the contested decision are in no way contradictory. Indeed, in paragraph 44 of that decision, the Board of Appeal in no way ‘suggested’ that ‘even the slightest change in the line would alter the distinctive character of the earlier mark’, rather it simply stated that ‘the scope of protection of the earlier mark as defined by its graphic representation [was] very weak and [that] therefore a form differing in the way as shown in the evidence filed by no means constitutes use of the earlier mark’. It thereby provided reasoning which is coherent and not contradictory. Moreover, that reasoning is well founded, in accordance with the case-law cited above, in accordance with which the simpler the mark, the less likely it is to have a distinctive character and the more likely it is for an alteration to that mark to affect one of its essential characteristics and thereby perception of that mark by the relevant public (see paragraph 148 above). 191 With regard to the third complaint, it is sufficient to state that the Board of Appeal, in paragraphs 46 and 47 of the contested decision, justified the fact that there was no need to further examine the evidence submitted by the fact that that evidence did not demonstrate the nature of use of the earlier mark. It thereby provided adequate reasoning. Moreover, that reasoning is well founded (see paragraphs 163 and 164 above). In addition, the Board of Appeal in no way called into question the case-law on the joint use of two marks (see paragraph 166 to 176 above). 192 The Board of Appeal’s reasoning concerning those three complaints thereby allows, first, the applicant to know the reasons for the contested decision in that regard in order to protect its rights and, second, the Court, hearing the present case, to exercise its power to review the legality of those aspects of that decision. This is shown by the arguments that the applicant was able to put forward in relation to its second plea (see paragraphs 83 to 90 above) and the Court was able to assess their substance. In addition, the Board of Appeal duly considered the facts submitted in that regard by the applicant. 193 The first three complaints therefore cannot succeed. The fourth complaint, concerning the reference by the Board of Appeal to the reasoning of an earlier decision annulled by the Court 194 By the fourth complaint, the applicant maintains that the Board of Appeal failed to address the remaining grounds of appeal and of opposition, based on Article 8(3) and (4) of Regulation No 207/2009. In paragraph 48 of the contested decision, it merely referred to the reasoning stated for its initial decision in Case R 2506/2010‑4. The applicant argues that the Board of Appeal seems to have ‘overlooked’ the fact that the earlier decision had been annulled in its entirety by the judgment ordering annulment. Accordingly, it maintains that in the contested decision, the Board of Appeal should have ruled on all the grounds relied on by the applicant in its appeal and could not refer to a decision which no longer existed. 195 EUIPO disputes those arguments. It points out that, as stated in paragraph 29 of the judgment ordering annulment, it was the applicant itself which restricted its arguments solely to the Board of Appeal’s findings on the assessment of the evidence of use adduced in the initial decision and it was the applicant which submitted that those findings also concerned all the grounds put forward in support of the opposition. 196 The intervener disputes those arguments. It takes the view that the Board of Appeal’s reference to the initial decision of 26 March 2012 in Case R 2506/2010‑4 to demonstrate that the requirements of Article 8(3) and (4) of Regulation No 207/2009 were not met likewise does not constitute an infringement of Articles 75 and 76 of that regulation. It is of the opinion that, following the proceedings before the Court, Article 8(3) and (4) of that regulation no longer formed part of the subject matter of the dispute before the Board of Appeal because the subject matter of the judgment ordering annulment was the infringement of Articles 75 and 76 of that regulation with regard to Article 8(1)(a) of that regulation, and concerned solely the evidence of use. It observes that the subject matter of the proceedings was limited – by the applicant itself – to the infringement of those provisions because the applicant had stated in paragraph 5.2 of its previous application that it ‘restrict[ed] its arguments solely to the Board of Appeal’s findings on the assessment of the evidence of use adduced, as those findings also concern[ed] all the grounds put forward in support of the opposition’. However, the intervener takes the view that the evidence regarding use does not concern all the grounds of opposition referred to in Article 8(3) and (4) of Regulation No 207/2009 because, in accordance with the case-law arising from the judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 143), it has no right to request proof of use of those rights. On the contrary, it states that a use request may only be requested for earlier rights in the sense of Article 8(1) of that regulation. It is for that reason that the intervener is of the view that Article 8(3) and (4) of that regulation was no longer at issue in the former proceedings before the Court and nor are those provisions the subject matter of the present proceedings concerning the contested decision. 197 In addition, the intervener submits that, in paragraphs 20 to 34 of the initial decision of 26 March 2012, the Board of Appeal provided detailed reasoning why those provisions did not apply. However, the applicant did not provide any argument or reasoning why that part of the decision was flawed, but only referred, incorrectly, to the question of genuine use being a prerequisite for the assessment of those grounds. According to the intervener, that is not in line with Article 76(d) of the Rules of Procedure, which requires the applicant to provide in detail the arguments why EUIPO has infringed the law. Therefore, in its view, even if the applicant had wanted to appeal against the initial decision in relation to Article 8(3) and (4) of Regulation No 207/2009, that plea was inadmissible and the decision could not be annulled on the basis of those provisions. The intervener contends that, when the Court annulled the decision in its entirety, it could only annul it as far as it was contested. However, the applicant did not contest the rejection of the grounds of opposition set out in Article 8(3) and (4) of Regulation No 207/2009. In addition, the limitation to the ground of opposition set out in Article 8(1) of that regulation is also apparent from the applicant’s reasoning, which claimed infringement of that ground only. 198 It should be noted that the Board of Appeal, in paragraph 48 of the contested decision, ‘as regards the other grounds of the opposition and the other earlier rights invoked, … explicitly refer[red] to the reasoning in its decision of 26 March 2012, Case R 2506/2010‑4’. 199 Clearly, that initial decision had been annulled in its entirety by the Court in the judgment ordering annulment, which was not appealed against and has become res judicata. 200 Since a judgment annulling a measure takes effect ex tunc and thus has the effect of retrospectively eliminating the annulled measure from the legal system (see paragraph 72 above), that initial decision does not exist in the EU legal order and can therefore have no effect. 201 Consequently, that initial decision does not form part of the legal context in the light of which the statement of reasons of the contested decision must be assessed. 202 Moreover, an opposition based on more than one ground can be rejected only if all the grounds on which it relies are examined and rejected. 203 It follows that the Board of Appeal, when providing the basis for the operative part of the contested decision rejecting all the grounds of opposition relied on, was not permitted to refer, for certain of those grounds, to the reasoning of an initial decision which had been annulled in its entirety by the Court, without examining and rejecting each of the grounds of opposition. 204 It must therefore be concluded that, by doing no more than ‘referring explicitly’, in respect of the grounds of opposition laid down in Article 8(3) and (4) Regulation No 207/2009, to the reasoning contained in the initial decision, which was annulled in its entirety by the Court, and by basing the operative part of the rejection of the appeal before it in part on such a reference, the Board of Appeal failed to provide reasons for the contested decision to the requisite legal standard, which infringed Article 75 of Regulation No 207/2009. 205 That conclusion is not weakened by the fact that the Court, in paragraph 29 of the judgment ordering annulment, observed as follows: ‘… the applicant challenges [EUIPO]’s findings and assessments of all the grounds put forward in support of the opposition, that is to say, those listed in Article 8(1)(a), Article 8(3) and Article 8(4) of Regulation No 207/2009. However, the applicant states that it was restricting its arguments solely to the Board of Appeal’s findings on the assessment of the evidence of use adduced, as those findings also concern all the grounds put forward in support of the opposition.’ 206 In that regard, without it being necessary to establish whether or not the assessment of the evidence of use submitted concerned all the grounds of opposition in the same way, it is sufficient to find that the fact that the Court upheld, in the judgment ordering annulment, the third plea, claiming infringement of Article 75 and of Article 76(1) of Regulation No 207/2009 and regarding the Board of Appeal’s failure to take into account, without stating reasons, certain evidence of use, was liable to call into question, at the very least, the examination of the ground of opposition set out in Article 8(1)(a) and (b) of that regulation and, consequently, the entire operative part of the initial decision, dismissing the appeal against the Opposition Division’s decision rejecting the opposition. 207 Indeed, where, on an appeal against a decision of the Board of Appeal such as the initial decision, the Court finds that the Board of Appeal’s assessment is invalid, even if as regards only one of the grounds of opposition relied on, it must annul that decision in its entirety, as it did in the judgment ordering annulment. 208 The fourth complaint of the third plea raised in support of the present action must therefore be upheld. 209 In light of all the foregoing, the contested decision must be annulled solely with regard to the grounds of opposition set out in Article 8(3) and (4) of Regulation No 207/2009, as referred to by the fourth complaint of the third plea, and the action must be dismissed as to the remainder, that is to say, in respect of all the grounds of opposition set out in Article 8(1)(a) and (b) of that regulation. Costs 210 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. Moreover, 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. 211 In the present case, the applicant has been unsuccessful in part, since the finding on the substance of the fourth complaint of the third plea leads to the annulment of the contested decision solely as regards the grounds of opposition set out in Article 8(3) and (4) of Regulation No 207/2009 and the action is dismissed as to the remainder. For their part, EUIPO and the intervener have been unsuccessful solely in relation to that complaint, whereas the action is dismissed in respect of all the grounds of opposition set out in Article 8(1)(a) and (b) of that regulation. 212 Consequently, it is held that each party is to bear its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 August 2016 (Case R 1248/2015‑4) in respect of the grounds of opposition set out in Article 8(3) and (4) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark; 2. Dismisses the action as to the remainder; 3. Orders CEDC International sp. z o.o., EUIPO and Underberg AG to bear their own costs. Costeira Gratsias Kancheva Delivered in open court in Luxembourg on 23 September 2020. E. Coulon S. Papasavvas Registrar President Table of contents Background to the dispute Procedure and forms of order sought Law Preliminary observations On the applicable law ratione temporis The subject matter of the present dispute The first plea in law: infringement of Article 65(6) of Regulation No 207/2009 The second plea in law: infringement of Article 15(1) of Regulation No 207/2009 and of Rule 22(3) of Regulation No 2868/95, as well as of Article 8(1)(a) and (b) and of Article 42(2) and (3) of Regulation No 207/2009 The first complaint: incorrect identification of the earlier mark – Legislation and case-law – Application in the present case to defining the precise subject of the protection conferred by the earlier mark and to whether its description aligns with its representation The second, third and fourth complaints, alleging, respectively, that (i) an erroneous and inadequate criterion of genuine use of the earlier mark was applied, (ii) account was not taken of the possibility of the joint use of several trade marks and (iii) there was no alteration of the distinctive character of the earlier mark at the time of its use – Legislation and case-law – Application to the present case The third plea in law: infringement of Article 75 and Article 76(1) of Regulation No 207/2009 The first three complaints concerning various infringements of the obligation to state reasons The fourth complaint, concerning the reference by the Board of Appeal to the reasoning of an earlier decision annulled by the Court Costs * Language of the case: English. 1 This judgment is published in extract form.