JUDGMENT OF THE GENERAL COURT (Second Chamber)
18 January 2023 (*)
(EU trade mark – Invalidity proceedings – EU word marks ELLO and MORFAT and EU figurative marks ELLO ERMOL, Ello creamy and MORFAT Creamy – Absolute ground for invalidity – Bad faith – Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001))
In Case T‑528/21,
Neratax LTD, established in Nicosia (Cyprus), represented by V. Katsavos, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,
defendant,
the other party, intervener before the General Court, being
Intrum Hellas AE Daicheirisis Apaitiseon Apo Daneia kai Pistoseis, the successor in law to Piraeus Bank SA, established in Athens (Greece), represented by P.-A. Koriatopoulou, lawyer,
the other parties to the proceedings before the Board of Appeal of EUIPO being
Eurobank Ergasias SA, established in Athens,
and
National Bank of Greece SA, established in Athens,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and V. Tomljenović, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
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
1        By its action under Article 263 TFEU, the applicant, Neratax LTD, seeks the annulment of the decisions of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2021 (Cases R 1295/2020-4, R 1296/2020-4, R 1298/2020-4, R 1299/2020-4 and R 1302/2020-4) (taken together, ‘the contested decisions’).
Background to the dispute
The earlier national trade marks
2        Krentin Hellas AE (also known as Credin Hellas AE; ‘Krentin’) was the proprietor of the following earlier national trade marks (taken together, ‘the earlier national marks’):
–        the word sign MORFAT (No D 73 637), which had belonged to it since 13 December 1978 and was registered in Greece;
–        the word sign MORFAT CREAMY (No D 115 166), which had belonged to it since 9 April 1992 and was registered in Greece;
–        the word sign ELLO (No D 62 437), which had belonged to it since 11 July 1974 and was registered in Greece.
3        The goods covered by the earlier national marks were in Classes 29 and 30 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 corresponded, in essence, to foodstuffs.
The EU trade marks
4        On 30 January 2014, the applicant filed with EUIPO an application for registration of the word sign MORFAT. The goods and services covered by the mark applied for were in Classes 29, 30 and 35 and corresponded, in essence, to foodstuffs and the services of the bringing together, for the benefit of others, of those goods in order to enable customers to purchase them. Since no opposition was brought against the registration, the mark was registered on 12 June 2014.
5        On 30 January 2014, the applicant also filed an application for registration of the word sign ELLO. The goods and services covered by the mark applied for were in Classes 29 and 35 and corresponded, in essence, to foodstuffs and the services of the bringing together, for the benefit of others, of those goods in order to enable customers to purchase them. Since no opposition was brought against the registration, the mark was registered on 19 July 2014.
6        On 22 October 2015, the applicant filed an application for registration of the following figurative sign:
7        The goods and services covered by the mark applied for were in Classes 29 and 38 and corresponded, in essence, to foodstuffs and the services of transmission and sending of information electronically through websites or based on internet websites. Since no opposition was brought against the registration, the mark was registered on 10 March 2016.
8        On 22 October 2015, the applicant also filed an application for registration of the following figurative sign:
9        The goods and services covered by the mark applied for were in Classes 29, 30 and 38 and corresponded, in essence, to foodstuffs and the services of transmission and sending of information electronically through websites or based on internet websites. Since no opposition was brought against the registration, the mark was registered on 11 March 2016.
10      On 22 October 2015, the applicant also filed an application for registration of the following figurative sign:
11      The goods and services covered by the mark applied for were in Classes 29 and 38 and corresponded, in essence, to foodstuffs and the services of transmission and sending of information electronically through websites or based on internet websites. Since no opposition was brought against the registration, the mark was registered on 16 March 2016.
Other relevant facts
12      First, as is apparent from the contested decisions, as regards the earlier national marks, Krentin (i) did not renew the word mark ELLO, which expired on 11 July 2014, and (ii) surrendered its word mark MORFAT on 11 April 2017 and its word mark MORFAT CREAMY on 19 April 2017.
13      Secondly, as is also apparent from the contested decisions, following the registrations of the EU trade marks which have been referred to in paragraphs 4 to 11 above, the applicant filed, on 17 March 2016, an application to register an exclusive licence over those marks, which had been granted to Krentin. That licence was registered by EUIPO on 29 March 2016 and was then cancelled on 13 April 2017 at the request of the applicant.
14      Subsequently, on 15 May 2017, an application to register a non-exclusive licence over the EU trade marks at issue was filed by the applicant. That licence was registered by EUIPO on 18 May 2017 and is still in force. The beneficiary of that non-exclusive licence is a family company, the principal commercial activity of which is the production of raw materials for bakery and confectionery products and the seat of which is at the same address as that of Krentin, in Athens (Greece). The Board of Appeal also stated, in paragraphs 8 and 9 of the contested decisions, that Krentin is controlled by or serves that family company.
15      On 4 May 2018, another application to register a non-exclusive licence over the EU trade marks which have been referred to in paragraphs 4 to 11 above was filed by the applicant. That third licence was registered by EUIPO on 17 May 2018 and is still in force. The beneficiary of that non-exclusive licence is Zoepol LTD, the seat of which is at the same address as that of the applicant, in Nicosia (Cyprus).
16      Thirdly, as is also apparent from the contested decisions, Krentin had taken out a number of loans with banks, including, as of May 1969, with National Bank of Greece SA, as of December 1995, with Ergasias SA and, as of June 2001, with Piraeus Bank SA.
17      On 23 June 2017, Krentin filed an application before a Greek court requesting that it be declared insolvent on account of its financial difficulties. The hearing relating to Krentin’s insolvency was cancelled following a request by its creditors that that company be subject rather to an extraordinary procedure of special administration in order to avoid insolvency.
18      That request was granted on 19 April 2018 and a special administrator was appointed by the court before which the case had been brought.
The invalidity proceedings before EUIPO
19      On 21 February 2019, Piraeus Bank, Eurobank Ergasias and National Bank of Greece, the creditor banks of the company Krentin (taken together, ‘the applicants for a declaration of invalidity’) filed with EUIPO applications for a declaration of invalidity of the EU trade marks which have been referred to in paragraphs 4 to 11 above (taken together, ‘the contested marks’).
20      The ground relied on in support of the applications for a declaration of invalidity was that set out in Article 52(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (now Article 59(1)(b) of 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)).
21      On 29 April 2020, the Cancellation Division upheld the applications for a declaration of invalidity.
22      On 24 June 2020, the applicant filed notices of appeal with EUIPO against the Cancellation Division’s decisions.
23      By the contested decisions, the Board of Appeal dismissed the appeals. After pointing out that it was for the applicant for a declaration of invalidity to establish that an application for registration had been filed in bad faith and that an overall assessment of all the factors had to be made, the Board of Appeal found that, in the light of the chronology relating to the various filings, the applications for registration of the contested marks had been filed in bad faith. The Board of Appeal stated, in that regard, that the applicant’s intention, at the time of filing the applications for registration of the contested marks, was dishonest and had the aim of hollowing out the earlier national trade mark rights belonging to the company Krentin, which was involved in insolvency proceedings, by having them filed in the form of EU trade marks by the applicant acting, in the present case, as an intermediary for the managing directors of the company Krentin.
Forms of order sought
24      The applicant claims that the Court should:
–        annul the contested decisions;
–        recognise and confirm that it is the lawful owner of the intellectual property rights in the contested marks;
–        order EUIPO and Intrum Hellas AE Daicheirisis Apaitiseon Apo Daneia kai Pistoseis to pay the costs.
25      EUIPO and Intrum Hellas AE Daicheirisis Apaitiseon Apo Daneia kai Pistoseis contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The status of Intrum Hellas AE Daicheirisis Apaitiseon Apo Daneia kai Pistoseis as intervener
26      On 3 January 2022, Intrum Hellas AE Daicheirisis Apaitiseon Apo Daneia kai Pistoseis (‘Intrum’) lodged a response at the Registry of the General Court in the capacity of ‘claims administrator’ of VEGA III NPL FINANCE DAC, that is to say, the company appointed as the ‘special successor’ of Piraeus Bank regarding the latter’s claims against Krentin.
27      The applicant submits that Intrum has not submitted any application for replacement. As regards the replacement of a party, as governed by Articles 175 and 176 of the Rules of Procedure of the General Court, Article 174 of those rules provides that, where an intellectual property right affected by the proceedings has been transferred to a third party by a party to the proceedings before the Board of Appeal of EUIPO, the successor to that right may apply to replace the original party in the proceedings before the General Court. That is, however, a situation which is different from that of Intrum, to which no intellectual property right has been transferred. Consequently, the abovementioned provisions on which the applicant relies do not apply to the present case.
28      Furthermore, in accordance with settled case-law, an action for annulment brought by a legal person may be continued by that legal person’s universal successor, in particular in the case where a legal person ceases to exist and all its rights and obligations are transferred to another person and, in such circumstances, the universal successor in title is necessarily substituted automatically for its predecessor (see judgment of 7 March 2013, Acino v Commission, T‑539/10, not published, EU:T:2013:110, paragraph 21 and the case-law cited).
29      It is true that, in the present case, Piraeus Bank still exists. However, all of the claims which it had against Krentin have been transferred to VEGA III NPL FINANCE, which is administered by Intrum. Consequently, in those particular circumstances, it must be acknowledged that Intrum has, in the present invalidity proceedings, replaced Piraeus Bank and that it could, by the response, acquire the status of intervener before the Court (see, by analogy, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraphs 57 to 62).
The applicable law ratione temporis
30      Given the dates on which the applications for registration at issue were filed, namely 30 January 2014 and 22 October 2015, which are 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, judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).
31      Consequently, in the present case, so far as concerns the substantive rules, the references made by the Board of Appeal in the contested decisions and those made by the applicant, the intervener and EUIPO in their respective arguments to Article 59(1)(b) of Regulation 2017/1001 must be understood as referring to Article 52(1)(b) of Regulation No 207/2009, the wording of which is substantively identical.
32      Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the case is governed by the procedural provisions of Regulation 2017/1001.
The applicant’s second head of claim, seeking the confirmation of its intellectual property rights in the contested marks
33      By its second head of claim, the applicant requests that the Court recognise and confirm that it is the lawful owner of the intellectual property rights in the contested marks.
34      In that regard, it is sufficient to point out that, as is the case with heads of claim requesting that the Court issue directions, when exercising judicial review of legality under Article 263 TFEU, the Court does not have jurisdiction to make confirmatory rulings (see, by analogy, order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited; see also, by analogy, judgment of 25 September 2018, Sweden v Commission, T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited).
35      It follows that the applicant’s second head of claim must be rejected as having been brought before a Court that has no jurisdiction to deal with it.
The applicant’s first head of claim, seeking the annulment of the contested decisions
36      The applicant relies in essence on a single plea in law, alleging infringement of Article 52(1)(b) of Regulation No 207/2009, which can be divided into six parts.
37      First, the applicant submits in essence that it was founded for the purpose of supplying the goods covered by the contested marks to the European market and promoting, manufacturing and selling those goods on that market and not in order to exclude the intellectual property rights of which Krentin was the proprietor from the insolvency proceedings regarding Krentin, as the Board of Appeal claims. Secondly, the applicant states that the application for liquidation of the company Krentin took place several years after the applications for registration of the contested marks had been filed. Consequently, it argues that, at the relevant points in time for the purposes of assessing whether there was bad faith on the part of the applicant, Krentin was fully solvent, which rules out bad faith on the part of the applicant. Thirdly, it submits that the applicants for a declaration of invalidity did not know how to prove that damage had been caused to them or to a third party. Fourthly, it contends that the Board of Appeal reversed the burden of proof by requiring that the applicant refute the claims of the applicants for a declaration of invalidity although those claims had not been sufficiently proved. Fifthly, the applicant submits that neither EUIPO nor the Court is in a position to rule on the invalidity of the contested marks since judgment has not yet been given in the national proceedings relating to the ownership of the earlier national marks. Sixthly, the applicant contends that there has been bad faith on the part of the applicants for a declaration of invalidity which are, it submits, seeking to circumvent national law and due process in order to sell Krentin’s assets to a debtor company of the applicants for a declaration of invalidity and create for that company an unfair competitive advantage in infringement of Articles 101 and 102 TFEU.
38      EUIPO and the intervener dispute the applicant’s arguments.
39      Article 52(1)(b) of Regulation No 207/2009 provides that an EU trade mark is to be declared invalid on application to EUIPO or on the basis of a counterclaim in infringement proceedings where the applicant was acting in bad faith when he filed the application for the trade mark.
40      In that regard, it must be noted that the concept of bad faith referred to in Article 52(1)(b) of Regulation No 207/2009 is not defined, delimited or even described in any way in EU legislation (judgment of 1 February 2012, Carrols v OHIM – Gambettola (Pollo Tropical CHICKEN ON THE GRILL), T‑291/09, EU:T:2012:39, paragraph 44).
41      In interpreting the concept of bad faith, the Court of Justice has stated that, while, in accordance with its usual meaning in everyday language, the concept of bad faith presupposes the presence of a dishonest state of mind or intention, that concept must also be understood in the context of trade mark law, which is that of the course of trade. In that regard, it pointed out that Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Regulations No 207/2009 and 2017/1001, which were adopted successively, have the same objective, namely the establishment and functioning of the internal market. The rules on the EU trade mark are aimed, in particular, at contributing to the system of undistorted competition in the European Union, in which each undertaking must, in order to attract and retain customers through the quality of its goods or services, be able to have registered as trade marks signs which enable the consumer, without any possibility of confusion, to distinguish those goods or services from others which have a different origin (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 45 and the case-law cited).
42      The Court of Justice concluded that the absolute ground for invalidity referred to in Article 52(1)(b) of Regulation No 207/2009 applies where it is apparent from relevant and consistent indicia that the proprietor of an EU trade mark has filed the application for registration of that mark not with the aim of engaging fairly in competition but with the intention of undermining, in a manner inconsistent with honest practices, the interests of third parties, or with the intention of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark, in particular the essential function of indicating origin (judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 46).
43      The Court of Justice also stated that the intention of an applicant for a trade mark is a subjective factor which must, however, be determined objectively by the competent administrative and judicial authorities. Consequently, any claim of bad faith must be the subject of an overall assessment, taking into account all the factual circumstances relevant to the particular case. It is only in that manner that a claim of bad faith can be assessed objectively (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 47 and the case-law cited).
44      It is for the applicant for a declaration of invalidity who intends to rely on Article 52(1)(b) of Regulation No 207/2009 to prove the circumstances which make it possible to conclude that an application for registration of an EU trade mark was filed in bad faith, the good faith of the trade mark applicant being presumed until proven otherwise (see, to that effect, judgment of 21 April 2021, MONOPOLY, T‑663/19, EU:T:2021:211, paragraph 42 and the case-law cited).
45      Where EUIPO finds that the objective circumstances of the particular case which were relied on by the applicant for a declaration of invalidity may lead to the rebuttal of the presumption of good faith which the proprietor of the mark at issue enjoys when he or she files the application for registration of that mark, it is for the proprietor of that mark to provide plausible explanations regarding the objectives and commercial logic pursued by the application for registration of that mark (see, to that effect, judgment of 21 April 2021, MONOPOLY, T‑663/19, EU:T:2021:211, paragraph 43).
46      The proprietor of the trade mark at issue is best placed to provide EUIPO with information regarding his or her intentions at the time of applying for registration of that mark and to provide it with evidence capable of convincing it that, in spite of the existence of objective circumstances, those intentions were legitimate (see, to that effect, judgment of 21 April 2021, MONOPOLY, T‑663/19, EU:T:2021:211, paragraph 44 and the case-law cited).
47      It is in the light of the foregoing considerations that the legality of the contested decisions must be reviewed.
The first part, relating to the commercial logic pursued by the registrations of the contested marks
48      The applicant submits that it was founded for the purpose of supplying the goods covered by the contested marks to the European market. It argues that, consequently, the commercial logic underlying the filings of the applications for registration of the contested marks should have led the Board of Appeal to conclude that there was no bad faith on the part of the applicant.
49      In that regard, the Board of Appeal, after setting out the chronology of events, found that it had been shown that the filings of the contested marks were a key part of a coordinated strategy, between the applicant and Krentin, to remove earlier national marks of some value from the assets of Krentin while ensuring that they were registered by means of equivalent EU trade marks covering the same goods. The Board of Appeal took the view that, consequently, the contested marks had been filed with the aim of undermining the interests of third parties and not with the aim of supplying the goods concerned to the European market in a climate of fair competition, as the applicant submits.
50      As has been pointed out in paragraph 42 above, it is apparent from the case-law that bad faith can be characterised by, inter alia, the intention of obtaining an exclusive right for purposes other than those falling within the functions of a trade mark, in particular the essential function of indicating origin. In the present case, it is apparent from the chronology set out in paragraphs 2 to 18 above that the applicant, first of all, filed the contested marks, which were registered without opposition on the part of Krentin, which was the proprietor of the earlier national marks, and then granted licences in respect of them to Krentin or companies which had close links with Krentin. Thereafter, around two months before it applied to be declared insolvent, Krentin surrendered its rights in the earlier national marks which were equivalent to the contested marks. That had the result of preventing the intellectual property rights conferred by the earlier national marks from forming part of Krentin’s assets although control over them was retained after they had been turned into equivalent EU trade marks.
51      In that regard, the applicant does not provide any plausible explanation regarding the commercial logic underlying the applications for registration of the contested marks. Moreover, it has not adduced any evidence to prove that it actually supplied the goods covered by the contested marks to the European market or even carried out an actual commercial activity other than owning the contested marks and granting them by means of licences to the company which was the proprietor of the earlier national marks or to companies which had close links with that company. It must be stated that the applicant has confined itself to repeating the arguments which it had already submitted before the Board of Appeal, by claiming that it was founded for the purpose of supplying those goods to the European market beginning with Germany and Cyprus. Consequently, and as the Board of Appeal correctly pointed out in the contested decisions, there is no conceivable reason other than that set out in paragraph 50 above for a company like Krentin to agree to having licences granted to itself, over EU trademarks which are equivalent to national marks of which it is the proprietor, and to surrendering its marks afterwards. The applicant’s intention was not therefore that of supplying the goods concerned to the European market as it claims, but that of removing intellectual property rights from Krentin’s assets, as was correctly explained in the contested decision.
52      Furthermore, the contradictions in the applicant’s arguments, which were pointed out by the Board of Appeal, only bear out the existence of a dishonest intention. In that regard, the Board of Appeal pointed out that the applicant had explained, during the proceedings before the Cancellation Division, that there was contact between itself and Krentin only after the applications for registration of the contested marks had been filed. However, as is apparent from paragraph 28 of the application, and as EUIPO has correctly pointed out, the applicant nevertheless claims that it reached an agreement with all the parties involved (Krentin, CREDIN Denmark, Bertzeletos SA and Mr Théodore Bertzeletos) in 2014, before it filed the applications for registration of the contested marks. It must be stated that the applicant has in no way provided any explanations regarding that contradiction.
53      Consequently, the Board of Appeal was right in finding that the applicant had filed the contested marks with the aim of undermining the interests of third parties and not with the aim of supplying the goods concerned to the European market in a climate of fair competition.
54      The first part must therefore be rejected as unfounded.
The second part, relating to the relevant points in time for the purposes of assessing whether there was bad faith
55      The applicant submits that, at the relevant times, namely 30 January 2014 and 22 October 2015, the dates on which the applications for registration of the contested marks were filed, Krentin was fully functional and solvent. It argues that, consequently, the Board of Appeal could not conclude that the contested marks had been filed in order to rescue some of the company Krentin’s assets. It submits that the application for liquidation of the company Krentin was made in 2017. The applicant states that a number of banks also granted eight increases in lines of credit to Krentin between 10 January 2013 and 10 March 2016, which it claims proves that there was nothing to suggest that Krentin was going to be insolvent and that it was therefore acting in bad faith.
56      In that regard, it must be stated that, although it is apparent from Article 52(1)(b) of Regulation No 207/2009 and from the case-law cited in paragraph 44 above that it is for the applicant for a declaration of invalidity who intends to rely on that ground to prove the circumstances which make it possible to conclude that the proprietor of an EU trade mark was acting in bad faith when he or she filed the application for registration of that trade mark, the fact remains that the intention of the proprietor of the EU trade mark must be the subject of an overall assessment, taking into account all the relevant factors specific to the particular case, as is clear from the case-law cited in paragraph 43 above.
57      As regards the solvency of Krentin on the dates on which the applications for registration of the contested marks were filed, it must be pointed out that the argument relating to the increases in the lines of credit which it received in the course of the years 2013 to 2016 had already been put forward before the Board of Appeal, which rejected it, finding correctly, in essence, that the fact that Krentin needed a series of very large bank loans suggested rather that the company was in a position of increased financial difficulty owing to the shrinkage of the local market on account of the economic crisis. It must be stated that the applicant has not put forward any argument seeking to dispute the Board of Appeal’s reasoning in that regard.
58      Furthermore, the Board of Appeal, relying on the applicant’s own account regarding the particularly difficult period when it was founded and when the applications for registration of the contested marks were filed, correctly concluded, that the plan to register those marks, which were equivalent to Krentin’s national marks, had been made when the business affairs of Krentin were especially difficult. The applicant has likewise not submitted any argument seeking to call that assessment into question.
59      Moreover, it is difficult to believe that Krentin, the special administrator of which had been appointed on 19 April 2018 by the Polymeles Protodikeio Peiraia (Court of First Instance, Piraeus, Greece), was, at the times when the applications for registration of the contested marks were filed, in good financial health, as the applicant claims. It is apparent from judgment 1883/2018 of the Polymeles Protodikeio Peiraia (Court of First Instance, Piraeus) appointing a special administrator that Krentin had been experiencing financial difficulties since at least 2015.
60      In that context, the Board of Appeal was right in finding that, even though Krentin’s application to be declared insolvent had been made only in 2017, the steps taken by the applicant to register the contested marks followed by Krentin’s relinquishing of its national marks established that there was a dishonest intention which had existed since the time of the first filing, that is to say, since 30 January 2014.
61      Consequently, the second part must be rejected as unfounded.
The third part, relating to the damage caused to the applicants for a declaration of invalidity or to the general public
62      The existence of bad faith on the part of the applicant when it filed the applications for registration of the contested marks cannot, likewise, be called into question by the lack of submission of any evidence showing that harm was caused to the applicants for a declaration of invalidity or to the general public as the applicant claims.
63      Neither Regulation No 207/2009 nor the case-law provides any basis that permits the inference that, in the present case, causing harm is relevant for the purposes of assessing whether there was bad faith on the part of the applicant when it filed the applications for registration of the contested marks (judgment of 21 April 2021, MONOPOLY, T‑663/19, EU:T:2021:211, paragraph 81).
64      The third part must therefore be rejected as ineffective.
The fourth part, relating to the burden of proof
65      In the context of the fourth part, the applicant criticises the Cancellation Division’s decisions, while claiming to refer to the Board of Appeal’s decisions. It must, however, be held, in essence, that it is complaining that the Board of Appeal reversed the burden of proof by requiring it to submit evidence showing that there was no link between it and Krentin although the applicants for a declaration of invalidity had not adduced the necessary evidence to prove its bad faith.
66      Such a line of argument cannot succeed. The Board of Appeal did not reverse the burden of proof, but found that it was apparent from relevant and consistent indicia that the applicant had filed the applications for registration of the contested marks with an aim other than that of engaging fairly in competition, a finding which is confirmed by the present judgment. Consequently, the presumption of good faith having been rebutted, it was then for the applicant, in accordance with the case-law which has been referred to in paragraphs 45 and 46 above, to prove its good faith, by showing, for example, that there was no link between itself and Krentin, which it has not succeeded in doing.
67      The fourth part is therefore rejected as unfounded.
The fifth and sixth parts, relating to the proceedings before the Greek national courts and the alleged bad faith of the applicants for a declaration of invalidity
68      In the context of the fifth and sixth parts, the applicant submits that the Cancellation Division was not in a position to rule on the registration of the contested marks because no final decision of the national court had been given regarding the issue of who the actual owner of the earlier national marks was. In that regard, it must be held, in essence, that it also makes the same complaint with regard to the Board of Appeal. It submits that the Danish company CREDIN A/S has brought an action before the Greek courts having jurisdiction in which it has requested the annulment of the sale by auction of the earlier national marks. It argues that the earlier national marks have never belonged to Krentin since Krentin paid royalties to CREDIN A/S under an agreement signed in 1968. Consequently, according to the applicant, Krentin could register those national marks in its own name, but could not, without the consent of CREDIN A/S, renew them. It submits that the applicants for a declaration of invalidity have therefore acted in bad faith by trying to circumvent that issue of ownership in order unlawfully to obtain an unfair competitive advantage for another company which is their debtor, by selling the earlier national marks to it. It argues that they have therefore also acted in infringement of Articles 101 and 102 TFEU.
69      As regards the issue of who the owner of the earlier national marks was, the Board of Appeal found that, in the light of the information registered in the Greek register, Krentin was indeed the proprietor. Furthermore, the Board of Appeal found that, in any event, it had been established that the applicant was acting in bad faith when it filed the applications for registration of the contested marks.
70      First, as the Board of Appeal correctly pointed out in the contested decisions, the applicant’s argument that CREDIN A/S was the actual proprietor of the earlier national marks goes against the information registered in the Greek register, according to which Krentin was the proprietor of the earlier national marks. Furthermore, the applicant does not respond to the Board of Appeal’s criticisms that that argument is implausible in the light of the circumstances of the case, but merely repeats the same arguments which it had already put forward before that Board of Appeal. Moreover, the agreement signed in 1968 is irrelevant in the present case. It is apparent from that agreement that Krentin paid royalties to CREDIN A/S for the provision of know-how and of technical support. That agreement also provides that the names under which the goods are sold remain the property of CREDIN A/S, without, however, specifying what those ‘names’ are.
71      Furthermore, the outcome of the proceedings before the national courts by which, in the applicant’s submission, CREDIN A/S has disputed the sale by auction of Krentin’s earlier national marks also has no bearing on the present case. If, following the proceedings, it were apparent that the earlier national marks were not part of Krentin’s assets, such a fact would have no bearing on the question of whether the applicant was acting in bad faith when it filed the applications for registration of the contested marks.
72      It is apparent from the contested decisions, which have not been disputed in that regard, that contact had taken place between the applicant, Krentin, the family company and CREDIN A/S before the applications for registration of the contested marks were filed. The Board of Appeal pointed out that the applicant had itself acknowledged that in 2014 it had reached an agreement with those companies to apply for the registration of the contested marks. The Board of Appeal correctly found that those meetings only reinforced the view that there was bad faith on the part of the applicant by proving that those companies intended to concoct a common and dishonest plan. In such a scenario, the Board of Appeal was right in finding that those applications had been filed in the context of a dishonest plan to ‘export’ the rights in the earlier national marks in the form of EU trade marks in order to avoid the ‘risk of expropriation’ of those marks, as the applicant itself explained before EUIPO, as is apparent from the contested decisions.
73      In any event, it follows from all of the foregoing, as it does from the findings in the contested decisions, that the evidence and the arguments of the applicants for a declaration of invalidity make it possible to conclude that the Board of Appeal did not make any error of assessment in finding that the applicant was acting in bad faith when it filed the applications for registration of the contested marks.
74      Secondly, the argument as regards the alleged bad faith on the part of the applicants for a declaration of invalidity is ineffective. Even if bad faith on the part of the applicants for a declaration of invalidity were proved, that fact alone could not call into question the finding that the applicant was acting in bad faith when it filed the applications for registration of the contested marks, as the assessment of whether there has been bad faith on the part of the applicants for a declaration of invalidity, as alleged, is totally independent of the bad faith on the part of the applicant.
75      In any event, the facts alleged by the applicant have not been proved. The applicant has not adduced any evidence of the objective circumstances which serve to prove that bad faith. Its line of argument is based solely on the submission that the issues relating to the insolvency proceedings before the Greek courts regarding the earlier national marks, which it considers to be complex, must be left for the national courts to decide on and therefore that the registrations of the contested marks should not be annulled while the ownership of the earlier national marks is disputed.
76      However, as is apparent from paragraph 71 above, the issues relating to the insolvency proceedings before the Greek courts regarding the earlier national marks are irrelevant in the present case.
77      The arguments set out by the applicant in the context of the fifth and sixth parts are not therefore, in any case, capable of calling into question the finding that it was acting in bad faith when it filed the applications for registration of the contested marks.
78      In conclusion, it follows from all of the foregoing that the Board of Appeal was right in finding that, in the light of all of the objective circumstances of the present case, the applicant’s intention when it filed the applications for registration of the contested marks was the dishonest intention of hollowing out the earlier national trade mark rights belonging to Krentin, prior to any claim by its creditors, while ensuring, by means of equivalent EU trade marks, that they were protected. As that dishonest scheme is incompatible with honest practices and does not show that the applicant had the intention of engaging fairly in competition, the Board of Appeal was right in finding that it was acting in bad faith when it filed the applications for registration of the contested marks and, consequently, in dismissing the appeals against the Cancellation Division’s decisions declaring those marks invalid pursuant to Article 52(1)(b) of Regulation No 207/2009.
79      The action must therefore be dismissed in its entirety.
Costs
80      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.
81      Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Neratax LTD to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and Intrum Hellas AE Daicheirisis Apaitiseon Apo Daneia kai Pistoseis.
Marcoulli
Frimodt Nielsen
Tomljenović
Delivered in open court in Luxembourg on 18 January 2023.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.