JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
21 May 2025 (*)
( EU trade mark – Revocation proceedings – EU word mark AIRBNB – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 )
In Case T‑1032/23,
Airbnb, Inc., established in San Francisco, California (United States), represented by A. Nordemann, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Stoyanova-Valchanova, D. Hanf and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Airtasker Pty Ltd, established in Sydney (Australia),
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse (Rapporteur) and I. Dimitrakopoulos, Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written part of the procedure,
further to the hearing on 19 November 2024,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Airbnb, Inc., seeks the annulment in part of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 August 2023 (Joined Cases R 885/2022-2 and R 894/2022-2) (‘the contested decision’).
Background to the dispute
2        On 26 June 2013, the applicant filed an application for registration of an EU trade mark with EUIPO pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
3        Registration as a mark was sought for the word sign AIRBNB.
4        The goods and services in respect of which registration was sought are in Classes 9, 35, 36, 37, 39, 41, 42, 43 and 45 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.
5        On 5 March 2020, the other party to the proceedings before EUIPO, Airtasker Pty Ltd, filed an application with EUIPO for revocation of that mark on the basis of Article 58(1)(a) of Regulation 2017/1001 for all the goods and services in respect of which it was registered.
6        On 25 March 2022, the Cancellation Division upheld the application for revocation in part.
7        On 19 May 2022, Airtasker Pty filed a notice of appeal with EUIPO against the decision of the Cancellation Division (Case R 885/2022-2), in so far as the Cancellation Division had dismissed the application for revocation in part.
8        On 20 May 2022, the applicant also filed a notice of appeal with EUIPO against the decision of the Cancellation Division (Case R 894/2022-2), in so far as the Cancellation Division had upheld the application for revocation in part.
9        By the contested decision, the Board of Appeal, first, joined the two appeals referred to in paragraphs 7 and 8 above, second, dismissed the appeal in Case R 885/2022-2 in its entirety and, third, upheld the appeal in Case R 894/2022-2 in part by annulling the decision of the Cancellation Division in so far as it had revoked the contested mark in respect of certain goods and services in Classes 9, 35, 41, 42 and 43. It concluded that the contested mark had to remain registered, inter alia, in respect of the following goods and services:
–        Class 9: ‘Computer software in relation to temporary accommodation and leisure activities; computer software for mobile devices in relation to temporary accommodation and leisure activities; downloadable connected software platform in relation to temporary accommodation and leisure activities; application programming interface (API) software in relation to temporary accommodation and leisure activities’;
–        Class 35: ‘Business consulting and management services in relation to temporary lodging and leisure activities; business consulting and management services in the nature of arranging, organising, advising about and providing various services in relation to temporary lodging and leisure activities; business management in relation to temporary lodging and leisure activities; office functions in relation to temporary lodging and leisure activities; providing a web site featuring the ratings, reviews and recommendations in relation to accommodations and leisure for commercial purposes posted by users; providing online business directories featuring temporary accommodations and leisure activities; consulting services for owners of rental properties, namely assisting property owners to better advertise their property over the internet and to create their rental listings in order to maximise interest’;
–        Class 42: ‘Providing temporary use of non-downloadable, web-based, and cloud-based software in relation to temporary accommodation and leisure activities; software as a service (SaaS) services in relation to temporary accommodation and leisure activities; platform as a service (PaaS) services in relation to temporary accommodation and leisure activities; providing an online non downloadable, web-based and cloud-based software platform that facilitates the provision of information, peer-to-peer interaction and transactions, and bookings in the fields of temporary lodging and leisure; application service provider featuring application programming interface (API) software in relation to temporary accommodation and leisure activities’.
10      By contrast, the Board of Appeal held that the evidence provided by the applicant did not show genuine use of the contested mark and that the Cancellation Division had correctly revoked that mark in so far as it covered goods and services in Classes 9, 35, 37, 39, 41, 42 and 43, corresponding, inter alia, for each of those classes, to the following description:
–        Class 9: ‘Computer software except that in relation to temporary accommodation and leisure activities; computer software for mobile devices except that in relation to temporary accommodation and leisure activities; downloadable connected software platform except that in relation to temporary accommodation and leisure activities; application programming interface (API) software except that in relation to temporary accommodation and leisure activities’;
–        Class 35: ‘Business consulting and management services except those in relation to temporary lodging and leisure activities; business consulting and management services in the nature of arranging, organising, advising about and providing various services except those in relation to temporary lodging and leisure activities; business management except those in relation to temporary lodging and leisure activities; office functions except those in relation to temporary lodging and leisure activities; providing a web site featuring the ratings, reviews and recommendations except those in relation to accommodations and leisure for commercial purposes posted by users; providing online business directories except for those featuring temporary accommodations and leisure activities; advertising’;
–        Class 37: ‘Providing, organising, and arranging cleaning services’;
–        Class 39: ‘Providing information in the fields of travel; social and collaborative travel’;
–        Class 41: ‘Education; entertainment; sporting and cultural activities; social and collaborative entertainment services’;
–        Class 42: ‘Providing temporary use of non-downloadable, web-based, and cloud-based software except that in relation to temporary accommodation and leisure activities; software as a service (SaaS) services except those in relation to temporary accommodation and leisure activities; platform as a service (PaaS) services except those in relation to temporary accommodation and leisure activities; providing an online non downloadable, web-based and cloud-based software platform except for that that facilitates the provision of information, peer-to-peer interaction and transactions, and bookings in the fields of temporary lodging and leisure; application service provider featuring application programming interface (API) software except that in relation to temporary accommodation and leisure activities’;
–        Class 43: ‘Social and collaborative lodging and dining’.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision in so far as it dismissed its appeal (Case R 894/2022-2) in part and upheld the revocation of the contested mark in relation to the goods and services referred to in paragraph 10 above;
–        order EUIPO to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
Law
13      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 58 of Regulation 2017/1001. That single plea in law is divided into six parts, alleging, first, that the contested mark was actually used in respect of certain goods and services outside the subcategory ‘… in relation to temporary accommodation [lodging] and leisure activities’ formed by the Board of Appeal; second, that the applicant’s legitimate interest, as proprietor of the contested mark, in being able to expand its business by enjoying the protection conferred by registration was unjustifiably limited; third, that the Board of Appeal erroneously equated ‘advertising’ with ‘services of an advertising company’; fourth, that the Board of Appeal incorrectly held that the applicant had not put that mark to genuine use in connection with ‘providing, organising, and arranging cleaning services’; fifth, that the word ‘travel’ was misinterpreted and, sixth, that the Board of Appeal incorrectly held that the applicant had not put that mark to genuine use in connection with ‘social and collaborative travel’, ‘education; entertainment; sporting and cultural activities services; social and collaborative entertainment services’ and ‘social and collaborative lodging and dining’.
14      In the present case, the Board of Appeal considered the period from 5 March 2015 until 4 March 2020 to be the five-year period for which the applicant was required to demonstrate genuine use of the contested mark, which is not disputed by the applicant.
15      Under Article 58(1)(a) of Regulation 2017/1001, the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO or on the basis of a counterclaim in infringement proceedings if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
16      There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it was registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see judgment of 27 September 2007, La Mer Technology v OHIM – Laboratoires Goëmar (LA MER), T‑418/03, not published, EU:T:2007:299, paragraph 54 and the case-law cited).
17      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 27 September 2007, LA MER, T‑418/03, not published, EU:T:2007:299, paragraph 55 and the case-law cited).
18      In order to examine, in a particular case, whether a trade mark has been put to genuine use, a global assessment must be carried out, which takes into account all the relevant factors of the particular case, which entails a degree of interdependence between the factors taken into account (judgment of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 36). Thus, each item of evidence is not to be analysed separately, but rather together, in order to determine the most likely and the most coherent meaning. In such an analysis, it cannot be excluded that an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (judgment of 17 April 2008, Ferrero Deutschland v OHIM, C‑108/07 P, not published, EU:C:2008:234, paragraph 36; see also, to that effect, judgment of 6 March 2014, Anapurna v OHIM – Annapurna (ANNAPURNA), T‑71/13, not published, EU:T:2014:105, paragraph 45).
19      Last, it is clear from Article 64(2) of Regulation 2017/1001 that it is for the proprietor of the earlier mark to furnish proof of genuine use of that mark in accordance with its essential function (see, to that effect, judgment of 13 December 2018, C=Holdings v EUIPO – Trademarkers (C=commodore), T‑672/16, EU:T:2018:926, paragraph 21).
20      In that regard, genuine use of such a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of that trade mark on the market concerned (see, to that effect, judgment of 6 November 2014, Popp and Zech v OHIM – Müller-Boré & Partner (MB), T‑463/12, not published, EU:T:2014:935, paragraph 34).
21      It is in the light of those considerations that the applicant’s arguments must be examined.
The first and second parts, alleging that the genuine use of certain goods and services concerned was unjustifiably limited through the subcategory ‘… in relation to temporary accommodation [lodging] and leisure activities’ formed by the Board of Appeal, and the fifth part, alleging that the Board of Appeal made an error of assessment in respect of the services ‘providing information in the fields of travel’
22      The Board of Appeal, in its examination of genuine use of the contested mark in connection with goods in Class 9 and services in Classes 35 and 42, concluded that it had been used for those goods and services in connection with ‘temporary accommodation [lodging] and leisure activities’. First, it stated in paragraph 108 of the contested decision that ‘leisure activities’ was a broad term, which encompassed the fields of ‘leisure, education, entertainment, cultural experiences, and excursions’ claimed by the applicant. Second, it found in paragraph 115 of the contested decision that the applicant had not demonstrated use of the contested mark in connection with ‘providing a web site featuring the ratings, reviews and recommendations for commercial purposes posted by users’ for ‘temporary offices and meeting spaces’.
23      Furthermore, after defining ‘travel’ as ‘the movement of people between distant geographical locations’, the Board of Appeal found in paragraph 129 of the contested decision that the applicant had not provided evidence showing that the contested mark was used in connection with services of ‘providing information in the fields of travel’ in Class 39. It held that, according to the Nice Classification, that class did not include reservation of temporary accommodation, which came under Class 43.
24      In essence, the applicant claims that, by limiting certain goods and services to a subcategory, the Board of Appeal failed to take into account its actual use of the contested mark in connection with all those goods and services or its interest in reasonably expanding its business in the future. According to the applicant, the current scope of its business relates to the categories ‘travel, temporary lodging, temporary offices and meeting spaces, leisure, education, entertainment, cultural experiences, and excursions’. The applicant further submits that the Board of Appeal did not explain why it rejected the broader category of ‘travel’. Similarly, it complains that the Board of Appeal did not take into account the usual meaning of the word ‘travel’ or how it is understood by the average consumer, which goes beyond transport from one place to another. According to the applicant, that word encompasses transport, accommodation and things to do and see, as is confirmed by the definition of ‘travel’ given in Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1). With regard to ‘temporary offices and meeting spaces’, the applicant submits that, even if it could not prove its current use of those services, the Board of Appeal should have included them as a reasonable future expansion of its business.
25      EUIPO disputes those arguments.
26      It should be recalled at the outset that, if the proprietor of the contested mark has registered his or her trade mark for a wide range of goods or services which he or she may potentially market, but which he or she has not done during a continuous period of five years, his or her interest in enjoying the protection of the mark for those goods or services cannot prevail over his or her competitors’ interest in registering their trade mark for those goods or services (see, to that effect, judgment of 14 December 2022, Hotel Cipriani v EUIPO – Altunis (CIPRIANI FOOD), T‑358/21, not published, EU:T:2022:817, paragraph 132 and the case-law cited).
27      In addition, the breadth of the categories of goods or services for which the contested mark was registered is a key element of the balance between, on the one hand, the maintenance and preservation of the exclusive rights conferred on the proprietor of the contested mark and, on the other hand, the limitation of those rights in order to prevent a trade mark which has been used in relation to part of the goods or services being afforded extensive protection merely because it has been registered for a wide range of goods or services (judgments of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraph 39, and of 2 March 2022, Apologistics v EUIPO – Kerckhoff (apo-discounter.de), T‑140/21, not published, EU:T:2022:110, paragraph 22).
28      In the present case, first, it should be noted that, as was clarified at the hearing, the applicant is challenging the subcategory formed by the Board of Appeal on the ground that it is very narrow, taking into consideration the point of view of the average consumer and the applicant’s future interests.
29      Second, the Board of Appeal stated in the contested decision that ‘leisure activities’ was a broad term, which encompassed the fields of ‘leisure, education, entertainment, cultural experiences, and excursions’. That assessment is not challenged by the applicant.
30      It should also be noted that leisure activities are pursued not only in the course of travel, but also in daily life, and are not targeted only at travellers.
31      Third, as regards the alleged strict interpretation of the word ‘travel’, in the first place, the list of goods and services in respect of which a mark is registered and with regard to which proof of genuine use has been requested, in order to ascertain the extent of the protection of that mark and to settle the issue of its genuine use, must be interpreted in the most coherent manner, in the light not only of its literal meaning and its grammatical construction, but also, if there is a risk of an absurd result, of its context and the actual intention of the mark’s proprietor as regards its scope (see, to that effect, judgment of 17 October 2019, Alliance Pharmaceuticals v EUIPO – AxiCorp (AXICORP ALLIANCE), T‑279/18, EU:T:2019:752, paragraph 50).
32      While it is true that, as observed by the applicant, the Nice Classification is purely administrative, reference should, however, be made to it in order to determine, where necessary, the range or the meaning of the goods and services in respect of which a trade mark has been registered (judgment of 10 September 2014, DTM Ricambi v OHIM – STAR (STAR), T‑199/13, not published, EU:T:2014:761, paragraph 35).
33      Moreover, it should be recalled that, as EUIPO asserts, the classification of a service pursuant to other rules of EU law is not, in principle, decisive in respect of its classification for the purposes of the registration of an EU trade mark. In accordance with Article 33(1) of Regulation 2017/1001, for the purposes of the registration of an EU trade mark, goods and services must be classified according to the Nice Classification. It follows that the applicant is not entitled to rely on the definition of the term ‘travel’ in Directive 2015/2302.
34      In the second place, it should be noted that the evidence submitted by the applicant does not contain information on the use of the contested mark in connection with the services ‘providing information in the fields of travel’ in Class 39. The Board of Appeal correctly noted that, in a press article entitled ‘Airbnb Expands Beyond the Home with the Launch of Trips’, dated 2016 (Annexes TR-1 to TR-4 to the EUIPO file), it was stated that services in relation to ‘flights’ would be added in the future. That is also confirmed by the ‘Exploratory study of consumer issues in online peer-to-peer platform markets – Task 4 – AirBnB: Case study report’ (Annex EC‑52 to the EUIPO file), according to which ‘the platform is evolving to supplying not only accommodation, but also other travel-related services’.
35      In any event, it was held in the contested decision that the contested mark had to remain registered in respect of ‘software [platforms] that [facilitate] the provision of information, peer-to-peer interaction and transactions, and the booking of temporary accommodations in the fields of travel, lodging, dining, and entertainment’ in Class 9 and ‘providing a web site featuring the ratings, reviews and recommendations in relation to accommodations and leisure for commercial purposes posted by users’ in Class 35. It must therefore be stated that the protection of that mark also extends to the field of information on temporary accommodation [lodging] and leisure activities.
36      It follows from paragraphs 31 to 35 above that the applicant has not demonstrated, in connection with the fifth part of its single plea in law, that the Board of Appeal’s assessments in respect of genuine use of the contested mark in connection with the services ‘providing information in the fields of travel’ in Class 39 were incorrect.
37      Fourth, the applicant’s argument that the Board of Appeal should have taken into account its intention to use the contested mark in connection with ‘temporary offices and meeting spaces’, even if it had not produced sufficient evidence of current use of the mark in connection with those services, also cannot be upheld.
38      As the Board of Appeal correctly noted, a number of press articles (Annexes AFW and BT to the EUIPO file) show that the ‘Airbnb for Work’ service includes homes where hosts indicate that their spaces are suitable for events and/or have work-friendly amenities. However, the applicant’s platform does not offer offices or meeting spaces per se, without accommodation being included. The platform operated by the applicant is therefore limited to offering accommodation suitable for persons who travel for work-related reasons.
39      Fifth, the applicant cannot effectively rely on the judgment of 16 July 2020, ACTC v EUIPO (C‑714/18 P, EU:C:2020:573). In that regard, it is true that, as is stated in paragraph 39 of that judgment, the limitation on the rights which the applicant gains from his or her registration must be reconciled with the legitimate interest of the applicant in being able in the future to extend his or her range of goods and services, within the confines of the terms describing the goods and services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him or her. However, that is not case for goods and services in connection with which use of the contested mark has not been proven. In accordance with the case-law referred to in paragraphs 26 and 27 above, that envisaged balance does not permit the applicant to make up for a lack of genuine use and his or her interest in enjoying the protection conferred on him or her by the registration of the mark cannot prevail over his or her competitors’ interest in registering their trade mark for those goods or services.
40      In the light of all the foregoing considerations, the first and second parts of the single plea in law, alleging that the genuine use of certain goods and services concerned was unjustifiably limited through the subcategory ‘… in relation to temporary accommodation [lodging] and leisure activities’ formed by the Board of Appeal, and the fifth part of the single plea, alleging that the Board of Appeal made an error of assessment in respect of the lack of genuine use in connection with the services ‘providing information in the fields of travel’ in Class 39, must be rejected as unfounded.
The third part, alleging that the Board of Appeal made an error of assessment in respect of ‘advertising’ services
41      The Board of Appeal held that the applicant had not shown genuine use of the contested mark in connection with ‘advertising’ services in Class 35.
42      The applicant claims that the Board of Appeal erroneously established an equivalence between ‘advertising’ services and ‘services … of advertising companies’. It submits that the evidence provided shows that it advertises services offered by its hosts. According to the applicant, a service does not need to be paid for in order for the provision of that service to qualify as genuine use of the contested mark.
43      EUIPO disputes those arguments.
44      First, in response to an oral question asked by the Court at the hearing, the applicant reiterated that its business consisted in offering a platform through which consumers could book accommodation services or experiences provided by hosts. Using the example of newsletters, the applicant stated, on the one hand, that it advertised its own services, which did not constitute an ‘advertising’ service in Class 35, and, on the other hand, that it also advertised services provided by hosts.
45      Second, it must be stated that the applicant’s argument that the Board of Appeal established an equivalence between ‘advertising’ services and ‘services … of advertising companies’ is based on a truncated reading of the contested decision. On the one hand, it is clear from paragraph 118 of the contested decision that, after giving the definition of ‘advertising services’, the Board of Appeal noted that such services are provided by advertising companies without, however, stating that that is exhaustive. Moreover, that definition of ‘advertising services’, which consist in ‘providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position on the market and enabling them to acquire a competitive advantage through publicity’, is not disputed by the applicant.
46      On the other hand, the Board of Appeal’s finding that the contested mark has not been put to genuine use in connection with ‘advertising’ services in Class 35 was not based on the fact that the applicant was not an advertising company, but on the evidence provided by the applicant.
47      Third, as regards the applicant’s argument seeking to challenge the Board of Appeal’s conclusion concerning the lack of genuine use of the contested mark in connection with ‘advertising’ services in Class 35, it must be observed that the evidence provided by the applicant does not indicate services in the field of advertising to which third parties could have recourse.
48      In particular, the material provided by the applicant to demonstrate use of the contested mark in connection with ‘advertising’ services includes, in the first place, newsletters (Annexes NEW-1 to NEW-216 to the EUIPO file) which provide information in respect of the relevant territory regarding accommodation, its price per night and its reviews by customers.
49      In the second place, the applicant’s magazine (Annexes MAG-1, MAG-2, MAG 2017-1 to MAG 2017-28, MAG 2018-1 to MAG 2018-32, MAG 2019-1 to MAG 2019-48 to the EUIPO file) contains articles on travel destinations and events, as well as references to accommodation.
50      It follows that, contrary to the claim made by the applicant, that evidence does not show that it offers ‘advertising’ services as defined in paragraph 45 above. The references made in the abovementioned evidence to the different accommodation or experiences that are offered form part of the promotional material for its business activity, namely accommodation and leisure activities which it offers through its platform, and are not an ‘advertising’ service provided to third parties, in other words to hosts.
51      Consequently, the fact that the applicant distributes newsletters or magazines featuring accommodation and events offered by its hosts does not mean that the contested mark is used in connection with advertising services. The presentation of accommodation or experiences offered by hosts as part of the content of its magazines and newsletters is an intrinsic part of the applicant’s business activity.
52      Thus, the promotion of the services provided by hosts is not intended to advertise those services as a means of maintaining or creating market shares for those hosts, but to facilitate the sale of the services offered by the applicant (see, by analogy, judgment of 20 November 2024, Wonderbox v EUIPO – Swile (Wonderbox), Τ‑200/24, not published, EU:T:2024:841, paragraph 53).
53      The foregoing considerations cannot be called into question by the applicant’s argument that a service does not need to be paid for in order for the provision of that service to qualify as genuine use of the contested mark. In accordance with the case-law referred to in paragraph 16 above, although the content of the evidence produced by the applicant shows that the use of the contested mark was intended to create or preserve an outlet for the services of temporary accommodation or of purchase of leisure activities provided by hosts, the same does not hold for ‘advertising’ services. Therefore, as EUIPO correctly asserts, it is, in reality, an ancillary activity to the applicant’s business activity, as the promotion of its own services cannot be classified as the provision of ‘advertising’ services to third parties.
54      It follows that the Board of Appeal did not make an error of assessment by finding that the applicant had not established genuine use of the contested mark in connection with ‘advertising’ services in Class 35.
55      Consequently, the third part of the single plea in law, alleging that the Board of Appeal made an error of assessment in respect of the lack of genuine use of the contested mark in connection with ‘advertising’ services, must be rejected.
The fourth part, alleging that the Board of Appeal made an error of assessment in respect of the services ‘providing, organising, and arranging cleaning services’
56      The Board of Appeal found that the evidence did not show genuine use of the contested mark in connection with the services ‘providing, organising, and arranging cleaning services’ in Class 37. That finding by the Board of Appeal is based, first, on several invoices issued by the applicant for bookings made in the relevant territory during the relevant period (Annex AI to the EUIPO file) and, second, on invoices issued by a subsidiary of the applicant, which were addressed to individuals in Spain and in France in 2019 and 2020 (Annexes LES and LFR to the EUIPO file).
57      The applicant acknowledges that it does not directly provide cleaning services. However, it submits, in essence, that it offers its hosts the opportunity to provide or organise cleaning services and the processing of the fees for such services, which appear in the payment flow for bookings on its platform, which constitutes genuine use in accordance with Article 9(3)(b) and (e) of Regulation 2017/1001. It complains that the Board of Appeal did not take into consideration the evidence which it submitted in relation to ‘organising and arranging cleaning services’. In support of those arguments, the applicant also makes reference to the judgment of 13 July 2022, Standard International Management v EUIPO – Asia Standard Management Services (The Standard) (T‑768/20, not published, EU:T:2022:458).
58      EUIPO disputes those arguments.
59      It should be recalled that the use of a trade mark is demonstrated by multiple types of acts and those relevant for the purpose of establishing its genuine use cannot be limited solely to the acts of provision of the goods or services it covers. In particular, it is apparent from Article 9(3)(b) and (e) of Regulation 2017/1001 that, under the conditions set out in paragraph 2 thereof, the proprietor of an EU trade mark may prohibit a third party from using a sign in the course of trade in order to offer goods, put them on the market or stock them for those purposes under the sign, or from offering or supplying services under the sign, as well as from using the sign on business papers and in advertising (judgment of 13 July 2022, The Standard, T‑768/20, not published, EU:T:2022:458, paragraph 35).
60      It should be noted in that regard that the invoices produced as Annex AI to the EUIPO file include, in addition to details regarding the accommodation and the consumer, a breakdown of fees. Those invoices thus show the price multiplied by the number of nights booked, the booking commission, the total price and, in some cases, a commission for cleaning. The contested mark is clearly displayed at the top of each invoice.
61      Furthermore, as the Board of Appeal correctly noted, the LES and LFR invoices annexed to the EUIPO file refer to a subsidiary of the applicant as being responsible for charging cleaning and management fees. The asterisk next to ‘cleaning fees’ refers to the sentence ‘fixed cleaning fees are paid by guests on making a booking in addition to the price of the stay’.
62      Therefore, it is not apparent from the evidence produced by the applicant that it used the contested mark in order to create or preserve an outlet for the services ‘providing, organising, and arranging cleaning services’. The mere fact that the contested mark is displayed on invoices which include cleaning services, among other invoiced services, cannot prove that the applicant acts as the provider of cleaning services. The consumer does not perceive the presence of the contested mark on those invoices as a mark identifying the origin of the cleaning services, but rather as the undertaking which processes payment for those services at the same time as the booking of accommodation.
63      That finding cannot be called into question by the applicant’s interpretation of the judgment of 13 July 2022, The Standard (T‑768/20, not published, EU:T:2022:458). As was held in paragraph 42 of that judgment, ‘… advertisements and offers for sale constitute acts of use of a trade mark. Therefore, those are relevant in order to demonstrate use in respect of the services or goods for which the contested mark is registered, in so far as those services or goods are the subject of advertisements and offers for sale.’ It follows from that paragraph that offering hosts the opportunity to provide or organise cleaning services and processing only the associated fees cannot be equated with organising and arranging cleaning services as such.
64      Consequently, it has not been established that the Board of Appeal made an error of assessment by holding that the evidence produced did not show genuine use of the contested mark in connection with the services ‘providing, organising, and arranging cleaning services’ in Class 37.
65      The fourth part of the single plea in law, alleging that the Board of Appeal made an error of assessment in respect of the lack of genuine use in connection with the services ‘providing, organising, and arranging cleaning services’, must therefore be rejected as unfounded.
The sixth part, alleging that the Board of Appeal made an error of assessment in respect of the services ‘social and collaborative travel’ in Class 39, the services ‘education; entertainment; sporting and cultural activities services; social and collaborative entertainment services’ in Class 41 and the services ‘social and collaborative lodging and dining’ in Class 43
66      The Board of Appeal held that, although the applicant’s platform facilitated ‘social and collaborative travel’ in Class 39, that did not constitute proof of genuine use of the contested mark in connection with those services. With regard to the services ‘education; entertainment; sporting and cultural activities services; social and collaborative entertainment services’ in Class 41, the Board of Appeal found that the applicant did not provide such services itself. The same holds for the services ‘social and collaborative lodging and dining’ in Class 43. According to the Board of Appeal, the applicant does not own or manage real estate property or other establishments or restaurants where customers pay a price for a short stay or a meal.
67      The applicant reiterates that the use of its mark in connection with those services or on business papers constitutes genuine use in accordance with Article 9(3)(b) and (e) of Regulation 2017/1001. First of all, the applicant claims that, despite the fact that the Board of Appeal accepted that its platform facilitated ‘social and collaborative travel’ and that such travel is covered by its invoices, it overlooked those aspects by failing to take them into account. Next, the applicant puts forward the same reasoning in respect of the services ‘education; entertainment; sporting and cultural activities services; social and collaborative entertainment services’. Last, it asserts that, as a prerequisite for booking the services ‘social and collaborative lodging and dining’ via its platform, they must have been offered on it.
68      EUIPO disputes the applicant’s arguments.
69      In that regard, the applicant presents itself as a provider of an online and mobile platform which enables users to browse and book places to stay and things to see and do. According to the applicant, hosts bring variety and a personal touch to those stays and, in many cases, they share their home with guests. In short, the applicant provides the platform through which consumers make their booking.
70      That being so, it must be examined whether, in accordance with the case-law referred to in paragraph 16 above, the contested mark, in the light of the evidence produced by the applicant, fulfilled the function of identifying the commercial origin of the services at issue covered by it.
71      In that regard, it should be noted that consumers can see the contested mark displayed on the top left of the invoices relied on by the applicant, making reference to bookings showing the number of nights in homes/apartments/rooms and experiences in the relevant territory during the relevant period (see, respectively, Annexes AI 1 to AI 300 and EX 1 to EX 124 to the EUIPO file).
72      However, as is apparent from an examination of those invoices, they include information on the services provided and the heading ‘service fee for the use of the online platform’. Consumers can therefore see that the applicant provides the platform through which they make bookings for stays and/or activities and payments for those services, which are provided by hosts.
73      In those circumstances, there is nothing to suggest that consumers perceived the contested mark displayed on the invoices relied on by the applicant as an indication of the commercial origin of the services at issue. In the mind of consumers, it instead points to the fact that booking and payment are made through the applicant’s platform.
74      In the light of the foregoing, the applicant, on which the burden of proof rests in accordance with the case-law referred to in paragraph 19 above, has not demonstrated that consumers perceived its trade mark displayed on the invoices as an indication of the commercial origin of the services at issue.
75      Consequently, the sixth part of the single plea in law raised by the applicant must be rejected and, therefore, the action must be dismissed in its entirety.
Costs
76      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.
77      Since a hearing was held and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Airbnb, Inc. to pay the costs.
Kowalik-Bańczyk
Hesse
Dimitrakopoulos
Delivered in open court in Luxembourg on 21 May 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.