JUDGMENT OF THE GENERAL COURT (Second Chamber)
21 December 2021 (*)
(EU trade mark – Invalidity proceedings – EU figurative mark CLEOPATRA QUEEN – Earlier national word mark CLEOPATRA MELFINCO – Articles 15 and 57 of Regulation (EC) No 207/2009 (now Articles 18 and 64 of Regulation (EU) 2017/1001) – Proof of genuine use of the earlier mark – Declaration of invalidity)
In Case T‑870/19,
Worldwide Spirits Supply, Inc., established in Tortola (British Virgin Islands), represented by S. Demetriou, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Melfinco S.A., established in Schaan (Liechtenstein), represented by M. Gioti, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 21 October 2019 (Case R 1820/2018-4), relating to invalidity proceedings between Melfinco and Worldwide Spirits Supply,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović (Rapporteur), President, F. Schalin and I. Nõmm, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 20 December 2019,
having regard to the response of EUIPO lodged at the Court Registry on 4 March 2020,
having regard to the response of the intervener lodged at the Court Registry on 15 November 2020,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 5 May 2015, the applicant, Worldwide Spirits Supply, Inc., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (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)).
2        Registration as a mark was sought for the following figurative sign:
3        The goods in respect of which registration was sought are in Class 34 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, and correspond
to the following description: ‘Cigarettes; cigars; tobacco; smokers’ articles; matches’.
4        On 3 September 2015, the contested mark was registered as an EU trade mark under the number 14027338 in respect of the goods referred to in paragraph 3 above.
5        On 22 December 2016, the intervener, Melfinco S.A., filed, under Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001),
an application for a declaration that the contested mark was invalid in respect of all the goods covered by that mark on account of, inter alia, the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
6        The application for a declaration of invalidity was based on, inter alia, Greek trade mark No 155 584, CLEOPATRA MELFINCO, which was filed on 3 August 2012 and registered on 29 July 2013 in respect of goods in Class 34, namely ‘cigarettes’.
7        By decision of 3 August 2018, the Cancellation Division upheld the application for a declaration of invalidity of the contested mark in its entirety. The Cancellation Division found that there was a likelihood of confusion with regard to the earlier trade mark registration.
8        On 14 September 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division.
9        By decision of 21 October 2019 (‘the contested decision’), the Fourth Board of Appeal dismissed the appeal in its entirety and confirmed that there was a likelihood of confusion with regard to the earlier mark. In particular, first, as regards the applicant’s claim that the intervener had not furnished proof of genuine use of the earlier mark, the Board of Appeal pointed out in essence that the conditions of Article 64(2) and (3) of Regulation 2017/1001 – that provision being that which, in its view, was applicable in the present case – were not satisfied, with the result that it did not have to request that the intervener prove that the earlier mark had been put to genuine use. In that regard, the Board of Appeal stated that the earlier mark had been registered on 29 July 2013, that is to say, less than five years before the date of the application for a declaration of invalidity, namely
22 December 2016 (see paragraph 10 of the contested decision). Secondly, the Board of Appeal rejected the applicant’s argument that the marks at issue had coexisted peacefully for a certain period of time. In that context, it stated that the applicant had not filed any evidence of the way in which the consumer had allegedly encountered the marks at issue on the market. It pointed out that the applicant had indeed even disputed that the earlier mark had been genuinely used. Furthermore, according to the Board of Appeal, the applicant had also not demonstrated that the alleged coexistence of the marks would have been based on the absence of a likelihood of confusion on the part of the relevant public (see paragraph 11 of the contested decision).
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        alternatively, substantially alter the content of the contested decision to the extent that the intervener should be invited to produce evidence of genuine use or invited to reach an amicable settlement with the applicant in the context of coexistence of the marks.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
12      The intervener has not sought any form of order.
Law
13      Given the date on which the application for registration at issue was filed, namely 5 May 2015, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited).
14      Since the relevant substantive provisions which are applicable in the present case are substantively identical, the fact that the parties referred to the provisions of Regulation 2017/1001
has no bearing for the purposes of the present proceedings and their arguments must be interpreted as being based on the relevant provisions of Regulation No 207/2009 (judgment of 5 October 2020, nanoPET Pharma v EUIPO – Miltenyi Biotec (viscover), T‑264/19, not published, EU:T:2020:470, paragraph 23).
15      Consequently, to the extent that both the parties and the Board of Appeal referred to Articles 18 and 64 of Regulation 2017/1001 for the purposes of their assessments and arguments, it is Articles 15 and 57 of Regulation No 207/2009 which are applicable.
16      By contrast, as regards the provisions of a procedural nature, as from 1 October 2017 it is Regulation 2017/1001 which applies. According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, unlike substantive rules, which are usually interpreted as not applying to situations existing before their entry into force (see judgment of 8 July 2010, Commission v Italy, C‑334/08, EU:C:2010:414, paragraph 60 and the case-law cited). Regulation 2017/1001 entered into force on 1 October 2017 (see Article 212 of that regulation).
17      In support of its various heads of claim, the applicant relies on two pleas in law. The first plea alleges infringement of Article 57(2) and Article 15(1) of Regulation No 207/2009 and the second plea alleges infringement of Article 8(1)(b) of that regulation.
The first plea, alleging infringement of Article 57(2) and Article 15(1) of Regulation No 207/2009
18      In the context of its first plea, the applicant in essence criticises the Board of Appeal for not requesting that the intervener furnish proof of genuine use of the earlier mark, in spite of the fact that it had made a request to that effect during the proceedings before the Board of Appeal. It submits that, in the contested decision, the Board of Appeal confined itself to applying Article 57(2) of Regulation No 207/2009 and to stating in that regard that the intervener did not have to prove genuine use of the earlier mark because that mark had been registered on 29 July 2013, that is to say, less than five years before the date of the application for a declaration of invalidity, namely
22 December 2016. However, according to the applicant, by arguing in that manner, namely solely on the basis of Article 57 of Regulation No 207/2009, the Board of Appeal erred in law. More specifically, it submits that it failed to have regard to the wording of Article 15 of Regulation No 207/2009. According to the applicant, Article 15 of Regulation No 207/2009 provides that a trade mark which has not been put to genuine use within a period of five years following registration is to be subject to the sanctions provided for in the regulation, that is to say, revocation. The applicant goes on to argue, in essence, that it is on the basis of that provision that the Board of Appeal should have requested that the intervener prove genuine use of the earlier mark. It claims that the wording of Article 15 of Regulation No 207/2009, in particular the terms ‘shall be’ in that article, shows
‘clearly’ that that provision is mandatory and cannot be constrained by the terms of Article 57 of that regulation. It submits that the limitations of Article 57 of Regulation No 207/2009 cannot be applicable to circumstances like those in the present case, since otherwise those limitations would thus lead to a gravely inequitable result. On closer inspection, the interpretation which the Board of Appeal gave to Regulation No 207/2009 in the present case results, according to the applicant, in a mark which has not been used, namely the earlier mark, being used to invalidate the contested mark. It submits that the overriding objective of Article 15 of Regulation No 207/2009 is, however, to ensure that trade marks that have not been used should not subsist. It argues that the interpretation favoured by the Board of Appeal is not consistent with the purpose of Regulation No 207/2009. In the light of those arguments, the applicant requests that the Court order the intervener to submit evidence of genuine use.
19      EUIPO and the intervener dispute those arguments on the part of the applicant.
20      The Court considers that it is appropriate, before interpreting Article 57(2) of Regulation No 207/2009 in the light of Article 15(1) of that regulation, as the applicant proposes in the context of its first plea in order to show that the Board of Appeal had an obligation to request that the intervener provide evidence of genuine use of its earlier mark (see paragraph 18 above), to analyse those provisions taken individually.
21      In the first place, as regards the first sentence of Article 57(2) of Regulation No 207/2009, it is important to point out that, according to that provision, if the proprietor of an EU trade mark so requests, the proprietor of an earlier EU trade mark, being a party to the invalidity proceedings, is to furnish proof that, during the period of five years preceding the date of the application for a declaration of invalidity, the earlier EU 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 he cites as justification for his application, or that there are proper reasons for non-use, provided the earlier EU trade mark has at that date been registered for not less than five years. According to Article 57(3) of Regulation No 207/2009, Article 57(2) of that regulation is also to apply to earlier national trade marks.
22      In the present case, it is common ground that the earlier mark, which is a national trade mark for the purposes of Article 57(3) of Regulation No 207/2009, was registered on 29 July 2013, that is to say, less than five years before the date of the application for a declaration of invalidity, namely
22 December 2016. In the light of the words ‘provided the earlier [EU] trade mark has at that date been registered for not less than five years’ in Article 57(2) of that regulation, it must be held that, as at the relevant date in the present case, namely 22 December 2016, the Board of Appeal was not entitled to request, if the applicant had so requested, that the intervener prove that, in the five-year period preceding the date of the application for a declaration of invalidity, the earlier mark had been put to genuine use in the European Union in connection with the goods in respect of which it had been registered. The Board of Appeal was therefore right in finding that it was not necessary to ask the intervener, on the basis of Article 57(2) of Regulation No 207/2009, to prove that there had been genuine use of the earlier mark in the period of five years preceding the date of the application for a declaration of invalidity.
23      In the second place, as regards Article 15(1) of Regulation No 207/2009, it must be pointed out that, according to that provision, if within a period of five years following registration, the proprietor has not put an 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 trade mark is to be subject, as the applicant itself has pointed out (see paragraph 18 above), to certain ‘sanctions’, unless there are proper reasons for non-use.
24      Article 15(1) of Regulation No 207/2009 does not itself define the ‘sanctions’ to which it refers, namely the specific legal consequences to be drawn from any non-use of an EU trade mark, or the detailed procedural rules which make it possible to arrive at such consequences. Those ‘sanctions’ are laid down in other provisions of Regulation No 207/2009, such as Article 42(2) of that regulation (as regards opposition proceedings), Article 51(1)(a) of that regulation (so far as concerns revocation proceedings) and Article 57(2) of Regulation No 207/2009 (as regards invalidity proceedings). In that regard and in any event, it must be stated that, contrary to the interpretation advocated by the applicant in the context of its argument (see paragraph 18 above), Article 15 of Regulation No 207/2009 does not provide that a trade mark which has not been put to genuine use within a period of five years following registration is to be subject to ‘revocation’. For the rights of a trade mark proprietor relating to a mark to be capable of being considered to be revoked, it is also necessary for conditions which are not laid down in Article 15 (but in Article 51(1) of Regulation No 207/2009, which relates to the specific procedure which deals with the revocation of a mark) to be satisfied.
25      In the present case, the applicant is not seeking the revocation of the intervener’s earlier mark on the basis of Article 51(1) of Regulation No 207/2009, but is seeking to establish, by relying, inter alia, on Article 15 of that regulation, that EUIPO was obliged to request proof of that mark’s genuine use from the intervener in invalidity proceedings.
26      However, it must be stated that Article 15(1) of Regulation No 207/2009 does not in any way provide that EUIPO has a right to order the proprietor of an earlier mark to submit evidence such as that referred to by the applicant. Consequently, it cannot be held that there has been infringement of Article 15(1) of Regulation No 207/2009 because the Board of Appeal did not request, on the basis of that provision, that the intervener prove genuine use of its earlier mark.
27      In the third place, and also contrary to what the applicant suggests, a reading of Article 57(2) of Regulation No 207/2009 in conjunction with Article 15(1) of that regulation is also not capable of substantiating the argument that the Board of Appeal was obliged, in the present case, to request that the intervener produce evidence capable of proving that the earlier mark had been put to genuine use.
28      It is true that Article 15(1) of Regulation No 207/2009 sets out, as, moreover, does recital 10 of that regulation, a general objective, namely the rule that the rights connected with an EU trade mark can be retained only on condition that the mark is actually used by the proprietor in connection with the goods or services in respect of which it is registered (see, to that effect, judgment of 21 December 2016, Länsförsäkringar, C‑654/15, EU:C:2016:998, paragraph 25).
That condition can be explained by the consideration that it would not be justifiable if a mark which is not used were to obstruct competition by limiting the range of signs which can be registered as marks by others and by denying competitors the opportunity to use a sign identical or similar to that mark when putting onto the internal market goods or services which are identical or similar to those covered by the mark in question (see judgment of 21 December 2016, Länsförsäkringar, C‑654/15, EU:C:2016:998, paragraph 25 and the case-law cited).
29      However, it must be stated that the general objective referred to in paragraph 28 above was not set out in an absolute manner in Article 15(1) of Regulation No 207/2009. On the contrary, as is apparent from that provision, that objective is tempered by the taking into account of the interests of the proprietor of an EU trade mark. More specifically, Article 15(1) of Regulation No 207/2009 confers on the proprietor a ‘grace period’ with regard to putting his or her mark to genuine use, during which he or she may rely on the exclusive rights which the mark confers, pursuant to Article 9(1) of Regulation No 207/2009, in respect of all those goods and services, without having to prove such use (judgment of 21 December 2016, Länsförsäkringar, C‑654/15, EU:C:2016:998, paragraph 26). EUIPO cannot impose any ‘sanction’ pursuant to Article 15(1) of Regulation No 207/2009 on the proprietor of the earlier mark, so far as concerns genuine use of that mark in the European Union in connection with the goods and services concerned, as long as the period of time between the registration of the earlier mark and the date on which a ‘sanction’ was requested is still under five years.
30      Article 57(2) of Regulation No 207/2009 expressly takes into account that ‘grace period’ which is referred to in Article 15(1) of that regulation (see the last words in the first sentence of Article 57(2): ‘provided the earlier [EU] trade mark has at that date been registered for not less than five years’). That ‘grace period’ is, in fact, one of the fundamental conditions which EUIPO must take into account when it determines, on the basis of Article 57(2) of that regulation, whether the proprietor of an earlier mark must be ordered to produce evidence that is capable of proving that that mark has been put to genuine use. In the present case, the Board of Appeal took all those factors into account.
31      Furthermore, it must be pointed out that the Courts of the European Union have had occasion to address the balancing exercise which must be carried out between the general objective of Article 15 of Regulation No 207/2009 (see paragraph 28 above), on the one hand, and the protection of the interests of the proprietor of the earlier mark conferred by the application of that five-year ‘grace period’ (see paragraph 29 above), on the other hand, when interpreting other provisions of Regulation No 207/2009. In that respect, the wording of those provisions is similar to the wording of Article 57(2) of Regulation No 207/2009.
32      Thus, it must be pointed out that, according to Article 51(1)(a) of Regulation No 207/2009, in essence, and subject to the further points which it lays down, the rights of the proprietor of the EU trade mark are to be declared 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. Everything which has just been set out in paragraphs 28 and 29 above has been pointed out by the Court of Justice not only as regards Article 15 of Regulation No 207/2009, but also as regards the revocation procedure referred to in Article 51(1)(a) of Regulation No 207/2009 (judgment of 21 December 2016, Länsförsäkringar, C‑654/15, EU:C:2016:998, paragraphs 24 to 29).
33      Along those lines, it must be recalled that Article 42(2) of Regulation No 207/2009 – a provision which is at the heart of opposition proceedings – imposes an obligation on the opponent to furnish, if the applicant so requests, proof of genuine use of the earlier mark only provided that, at the date of publication of the EU trade mark application, the earlier mark has been registered for at least five years.
In that regard, the Courts of the European Union have already held that, in establishing that rule, the EU legislature expressly laid down a criterion regarding the reference date for determining whether requests for proof of use were admissible, namely, the date of publication of the trade mark application, and any subsequent commencement of opposition proceedings cannot have any bearing on that reference date. It has also been held that there is no contradiction between Article 42(2) of Regulation No 207/2009 and the purpose of the obligation to put the mark to use, because the parties have other legal remedies to protect themselves from an opposition based on a mark which is capable of being revoked for non-use during the opposition proceedings. That is so, because, in the case of an EU trade mark, an application for revocation for non-use may be lodged at any time, including during opposition proceedings relating to that mark. In the case of a national mark, the application must comply with the national provisions which the Members States are required to adopt (order of 30 May 2013, Wohlfahrt v OHIM, C‑357/12 P, not published, EU:C:2013:356, paragraphs 30 to 32; judgments of 15 July 2015, TVR Automotive v OHIM – TVR Italia (TVR ITALIA), T‑398/13, EU:T:2015:503, paragraph 33, and of 8 November 2017, Pempe v EUIPO – Marshall Amplification (THOMAS MARSHALL GARMENTS OF LEGENDS), T‑271/16, not published, EU:T:2017:787, paragraph 21).
34      In view of the foregoing, it must be held that the applicant’s interpretation of Articles 15 and 57 of Regulation No 207/2009 is the result of a misreading of those two provisions, namely, in particular, of EUIPO’s obligation to respect the five-year ‘grace period’ to which both of those provisions relate, with the result that the arguments which the applicant has put forward in the context of its first plea must be rejected as unfounded, as must the first plea in its entirety.
35      That is also the case with regard to the applicant’s request in the application that the Court itself order the intervener to prove genuine use of the earlier mark. Without it being necessary to address the issue of whether it is admissible, it must be held that that request is based, as is the first plea in its entirety, on a misinterpretation of Articles 15 and 57 of Regulation No 207/2009, which the foregoing assessments deal with.
The second plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
36      In the context of its second plea, the applicant submits that the Board of Appeal’s considerations regarding the coexistence of the marks at issue, as set out in paragraph 11 of the contested decision (see paragraph 9 above), are vitiated by error. It argues that it is true that it submitted before EUIPO that the intervener should be requested to prove genuine use with regard to the relevant public, that is to say, the Greek public. Furthermore, it submits that it claimed before EUIPO that, in the context of its European registration, the contested mark had been used in a number of Member States of the European Union, not specifically indicating Greece. It argues that, contrary to what is apparent from the contested decision, those two grounds should not be examined in conjunction and that one does not negate the other, even though a lack of conflicting evidence should be an indication of a lack of genuine use within the context of Greece. In the present case, it is therefore necessary, according to the applicant, to interpret its claim regarding ‘peaceful co-existence’ as seeking the maintenance of the status quo as regards the two marks, namely, that the proprietor of the Greek trade mark continues its activities (if any) in Greece, whereas the proprietor of the EU trade mark continues its activities within the European Union, with the exclusion of Greece.
37      EUIPO and the intervener dispute those arguments.
38      It must be pointed out at the outset that the applicant is calling into question the Board of Appeal’s assessments regarding the existence of a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, solely from the perspective of the Board of Appeal’s statements with regard to the coexistence of the marks at issue on the relevant market. In that regard, it must be stated that, in the proceedings before the Board of Appeal, the applicant did not, in addition, put forward any arguments regarding a likelihood of confusion other than those relating to the existence of a possible coexistence between the marks at issue. In particular, it did not call into question the Cancellation Division’s assessments as regards the comparison of the services, the comparison of the signs or the global assessment of the likelihood of confusion. Since they had not been disputed, the Board of Appeal endorsed the Cancellation Division’s assessments (see paragraph 12 of the contested decision).
39      In order to address the applicant’s second plea, it is necessary to point out that the coexistence of the marks at issue on the relevant market is one of the relevant factors to be taken into consideration in the context of the global assessment of the likelihood of confusion with which Article 8(1)(b) of Regulation No 207/2009 is concerned.
40      Such a coexistence of the marks at issue may, together with other factors, contribute to diminishing the likelihood of confusion between those marks on the part of the relevant public (see judgment of 12 June 2018, Cotécnica v EUIPO – Mignini & Petrini (cotecnica MAXIMA), T‑136/17, not published, EU:T:2018:339, paragraph 84 and the case-law cited). In specific cases, the coexistence of earlier marks on the market might totally rule out the likelihood of confusion between two marks at issue (see, to that effect, judgments of 2 October 2013, Cartoon Network v OHIM – Boomerang TV (BOOMERANG), T‑285/12, not published, EU:T:2013:520, paragraph 55, and of 27 January 2021, Turk Hava Yollari v EUIPO – Sky (skylife), T‑382/19, not published, EU:T:2021:45, paragraph 46).
41      In order for the coexistence of two marks to be capable of having such consequences, certain conditions must be satisfied.
42      Accordingly, the possibility that the coexistence of earlier marks on the market might reduce the likelihood of confusion found to exist may be taken into account only if, at the very least, during the proceedings before EUIPO concerning relative grounds for refusal, the applicant for the EU trade mark proved to the requisite legal standard that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public between the earlier marks upon which it relies and the earlier mark on which the opposition is based, and provided that the earlier marks on which the trade mark applicant relies and the marks at issue are identical (see judgments of 12 June 2018, cotecnica MAXIMA, T‑136/17, not published, EU:T:2018:339, paragraph 85 and the case-law cited, and of 27 February 2020, Knaus Tabbert v EUIPO – Carado (CaraTour), T‑202/19, not published, EU:T:2020:75, paragraph 84 and the case-law cited). If the earlier mark on which the opposition is based is an EU trade mark, it is for the party relying on coexistence between that earlier mark and other trade marks to prove that coexistence with regard to the territory of all the Member States (see judgment of 20 November 2017, Cotécnica v EUIPO – Visán Industrias Zootécnicas (cotecnica OPTIMA), T‑465/16, not published, EU:T:2017:825, paragraph 99 and the case-law cited).
43      Furthermore, any argument regarding coexistence implies that it must first be established that there has been, inter alia, actual use of the trade mark on which the applicant relies (see, to that effect, judgment of 30 June 2015, La Rioja Alta v OHIM – Aldi Einkauf (VIÑA ALBERDI), T‑489/13, EU:T:2015:446, paragraph 81). Furthermore, since it is also apparent from the case-law that the coexistence of two trade marks must be sufficiently lengthy to be capable of influencing the perception of the relevant consumer, the duration of the coexistence also constitutes an essential factor
(see judgment of 12 July 2019, Ogrodnik v EUIPO – Aviário Tropical (Tropical), T‑276/17, not published, EU:T:2019:525, paragraph 80 and the case-law cited). Furthermore, that coexistence must actually be peaceful. Consequently, any dispute between the proprietors of the earlier marks precludes a finding of coexistence.
44      Lastly, the coexistence of two marks must be proved by the proprietor or the applicant for registration of the contested mark, during the proceedings before EUIPO concerning relative grounds for refusal, who may, for the purpose of proving that that coexistence is based on the absence of any likelihood of confusion, advance a body of evidence to that effect. In that regard, evidence demonstrating that the relevant public recognised each of the trade marks at issue before the time at which the application for registration of the contested mark was filed is particularly relevant (judgment of 9 March 2018, Recordati Orphan Drugs v EUIPO – Laboratorios Normon (NORMOSANG), T‑103/17, not published, EU:T:2018:126, paragraphs 88 and 89).
45      In the present case, as is apparent from the file before EUIPO, the applicant has not provided any evidence regarding the way in which the consumer has allegedly encountered the marks at issue on the European Union market as a whole or in Greece. The applicant has also not proved that the alleged coexistence of the marks would have been based on the absence of a likelihood of confusion on the part of the relevant public. Furthermore, the applicant has not provided any evidence regarding the duration of the alleged coexistence of the marks on the relevant market or regarding its peaceful nature.
46      Consequently, the applicant’s second plea must be rejected as unfounded, without it being necessary to examine more thoroughly the applicant’s assertion that its claim regarding the peaceful coexistence of the marks at issue should be understood as seeking, in actual fact, the maintenance of the status quo with regard to the two marks (the use of the earlier mark in Greece and the use of the contested mark in the rest of the European Union).
47      It follows that the first head of claim must be rejected.
48      In view of all of the foregoing, the action must be dismissed in its entirety, without it being necessary to rule on the applicant’s second head of claim.
Costs
49      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.
50      Since the applicant has been unsuccessful and EUIPO has applied for costs, the applicant must be ordered to bear its own costs and to pay those incurred by EUIPO.
51      Since the intervener has not applied for costs against the applicant, it must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Worldwide Spirits Supply, Inc. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);
3.      Orders Melfinco S.A. to bear its own costs.
Tomljenović
Schalin
Nõmm
Delivered in open court in Luxembourg on 21 December 2021.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.