JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
27 January 2021 (*)
(EU trade mark – Invalidity proceedings – International registration designating the European Union – Word mark skylife – Earlier EU word mark SKY – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) Regulation (EU) 2017/1001))
In Case T‑382/19,
Turk Hava Yollari AO, established in Istanbul (Turkey), represented by R. Almaraz Palmero, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas 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
Sky Ltd,
established in Isleworth (United Kingdom), represented by A. Brackenbury, Solicitor, and A. Zalewska, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 23 April 2019 (Case R 880/2018-4), relating to invalidity proceedings between Sky and Turk Hava Yollari,
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira, President, M. Kancheva and T. Perišin (Rapporteur), Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the application lodged at the Court Registry on 25 June 2019,
having regard to the response of EUIPO lodged at the Court Registry on 16 September 2019,
having regard to the response of the intervener lodged at the Court Registry on 13 September 2019,
having regard to the request for a stay of proceedings brought by the applicant at the hearing on 2 July 2020,
having regard to the observations of EUIPO and of the intervener lodged at the Court Registry on 1 and 2 July 2020, respectively,
having regard to the decision of 3 August 2020 rejecting the request for a stay of proceedings brought by the applicant,
further to the hearing on 2 July 2020,
gives the following
Judgment
Background to the dispute
1        On 10 July 2006, the applicant, Turk Hava Yollari AO, obtained, from the International Bureau of the World Intellectual Property Organisation (WIPO), international registration No 898322, designating, inter alia, the European Union. The mark in respect of which the international registration was granted is the following figurative sign:
2        The services in respect of which protection was sought are in, inter alia, Class 41 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: ‘Training and education services, organising symposiums, conferences, congresses and seminars, publication services for magazines, books, journals and other printed matter, entertainer services, film production, photography, production of radio and television programmes, translation services’.
3        The international registration reached the European Union Intellectual Property Office (EUIPO) on 26 October 2006 and was recognised on 30 August 2006 as having the same protection as that granted to an EU trade mark with effect from 10 July 2006 as a word mark pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended, itself 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)).
4        On 11 July 2011, British Sky Broadcasting Group plc, the predecessor in law to the intervener, Sky Ltd, filed an application with EUIPO for a declaration of invalidity of that mark, in particular, in respect of the services referred to in paragraph 2 above, pursuant to Article 53(1) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation (now Article 60(1) and Article 8(1)(b) of Regulation 2017/1001).
5        In support of its application for a declaration of invalidity, the predecessor in law to the intervener relied, in particular, on the EU word mark SKY, filed on 30 April 2003 and registered on 14 October 2008 (‘the earlier mark’), for goods and services in, inter alia, Classes 16 and 41 of the Nice Agreement and corresponding to the following description:
–        Class 16: ‘Printed matter’;
–        Class 41: ‘Education except for boarding schools and education in relation to dental services provided to dentistry businesses, including dental laboratory businesses and their personnel, only; providing of training except for providing of training in relation to dental services provided to dentistry businesses, including laboratory businesses and their personnel, only; entertainment’.
6        By decision of 9 April 2018, the Cancellation Division upheld the application for a declaration of invalidity and annulled the contested mark in respect of the services referred to in paragraph 2 above, with the exception of translation services, on the basis of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation.
7        On 14 May 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.
8        By decision of 23 April 2019 (‘the contested decision’), the Fourth Board of Appeal dismissed the appeal.
9        In particular, first, in view of the unitary protection enjoyed by the earlier mark throughout the European Union, the Board of Appeal examined whether there was a likelihood of confusion on the part of the English-speaking public in the European Union.
10      Second, as regards the comparison of the goods and services covered by the marks at issue, the Board of Appeal noted that the training and education services and entertainer services covered by the contested mark were identical to the education, training and entertainment services in the same class and covered by the earlier mark. Moreover, the Board of Appeal stated that the services of organising symposiums, conferences, congresses and seminars covered by the contested mark were similar to the education services covered by the earlier mark, that services of film production, photography, production of radio and television programmes were similar to entertainment services and that publication services for magazines, books, journals and other printed matter were similar to the printed matter covered by the earlier mark.
11      Third, as regards the comparison of the marks at issue, the Board of Appeal submitted that they had, at the very least, an average degree of visual and phonetic similarity and that they were also conceptually similar, taking account of their shared element ‘sky’.
12      Fourth, as regards the existence of a likelihood of confusion, the Board of Appeal observed that, in view of the partial identity and similarity between the goods and services concerned, the similarity between the marks at issue causes a likelihood of confusion on the part of the relevant public, – consisting of the general public, but also of professionals, and thus displaying an average to high level of attention, – between the contested mark and the earlier mark, which has a normal distinctive character.
13      In that regard, the Board of Appeal rejected the applicant’s arguments relating to an alleged peaceful coexistence between the marks at issue and the specific methods of use and the alleged reputation of the contested mark.
Forms of order sought
14      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to declare the registration of the contested mark to be valid;
–        order EUIPO and the intervener to pay the costs, including those incurred before the Board of Appeal.
15      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
16      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred before the Cancellation Division and the Board of Appeal.
Law
17      In support of its action, the applicant puts forward two pleas in law, alleging, respectively, infringement of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation, and infringement of the obligation to state reasons.
18      It is appropriate to examine the second plea first.
The second plea in law, alleging infringement of the obligation to state reasons
19      The applicant submits that the Board of Appeal relied on the analysis of the Cancellation Division without carrying out its own analysis on the questions underlying the assessment as to whether there was a likelihood of confusion. In view of the use made of the contested mark and the visual, phonetic and conceptual differences between the marks at issue, the Board of Appeal did not set out the necessary information enabling the conclusion that there is a likelihood of confusion.
20      EUIPO and the intervener dispute those assessments.
21      The first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. That obligation has the same scope as the obligation laid down in the second paragraph of Article 296 TFEU, and its objective is, first, to allow those concerned to know the reasons for the measure adopted in order to be able to defend their rights and, second, to enable the EU judicature to exercise its power to review the legality of the decision (judgment of 14 February 2019, Torro Entertainment v EUIPO – Grupo Osborne (TORRO Grande MEAT IN STYLE), T‑63/18, not published, EU:T:2019:89, paragraph 70).
22      Whether a statement of reasons satisfies those requirements is a question to be assessed by reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question. Thus, when EUIPO refuses registration of a sign or declares a sign invalid as an EU trade mark, it must, in order to state the reasons for its decision, indicate the ground for refusal, absolute or relative, which precludes that registration and the provision from which that ground is drawn, and set out the facts which it found to be proved and which, in its view, justify application of the provision relied on (see, to that effect, judgment of 9 July 2008, Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraphs 44 and 46).
23      In the present case, it is apparent from paragraphs 17 to 37 of the contested decision that the Board of Appeal clearly set out the reasons underlying its finding of the existence of a likelihood of confusion between the marks at issue. In particular, first of all, the Board of Appeal defined the relevant public; next, it carried out, first, a comparison of the goods and services covered by the marks at issue and, second, a visual, phonetic and conceptual comparison of those marks and, lastly, it set out its global assessment of whether there was a likelihood of confusion in the light of the factors emerging from the preceding stages of its reasoning. In that context, the fact that the Board of Appeal expressly endorsed some of the Cancellation Division’s assessments does not in any way affect the completeness of the reasoning of the contested decision or demonstrate that the Board of Appeal did not carry out its own analysis in the light of the arguments raised by the applicant before it.
24      Moreover, the obligation to state reasons is an essential procedural requirement which is distinct from the question of whether the reasoning which the arguments alleging errors of assessment relating to the comparison of the goods or services and the marks at issue and the likelihood of confusion concern is well founded (judgment of 14 February 2019, TORRO Grande MEAT IN STYLE, T‑63/18, not published, EU:T:2019:89, paragraph 71). Those arguments go to the substantive legality of the contested decision and will be examined in the first plea (see paragraphs 29 to 32 below).
25      It follows that the contested decision meets the requisite legal standard and that the second plea must be rejected.
The first plea in law, alleging infringement of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation
26      The applicant submits that the goods covered by the contested mark are offered to passengers of flights, who, by definition, display a particularly high level of attention, which excludes any likelihood of confusion. Such a likelihood can also be excluded given the different nature of the printed matter in Class 16, covered by the earlier mark, and the publication services in Class 41, covered by the mark applied for. The applicant does not offer for sale printed matter to passengers on its flights, but offers only complimentary publications as part of the main air transport service provided under two other trade marks and a well-known logo. Furthermore, the services covered by the two marks are different. The applicant adds that it has been using the contested mark since 1989, which is proof of a peaceful coexistence that excludes any likelihood of confusion and demonstrates that the intervener should be regarded as time-barred from requesting a declaration that the contested mark is invalid.
27      Moreover, the applicant states that, given the figurative nature and the length of the contested mark, it does not have a particularly high level of similarity with the earlier mark. Furthermore, the presence of the term ‘life’ in the contested mark makes the marks at issue phonetically and conceptually different. According to the applicant, unlike the contested mark, the earlier mark has only a weak distinctive character, which, combined with the ability of the public of the European Union as a whole, and not only English-speaking consumers, to perceive differences between the two signs, excludes any likelihood of confusion.
28      EUIPO and the intervener dispute the merits of those arguments.
29      Under Article 158 of Regulation No 207/2009 (now Article 198 of Regulation 2017/1001), a procedural provision applicable ratione temporis at the time of filing the application for a declaration of invalidity at issue, the application for invalidation of the effects of an international registration designating the Union is to take the place of an application for a declaration of invalidity as provided for in Articles 52 or 53 of that regulation (now Articles 59 and 60 of Regulation 2017/1001).
30      Under Article 52(1)(a) of Regulation No 40/94 and Article 8(1)(b) of that regulation (subsequently Article 53(1)(a) and Article 8(1)(b) of Regulation No 207/2009, now Article 60(1)(a) and Article 8(1)(b) of Regulation 2017/1001), the substantive provisions applicable ratione temporis to the date on which registration of the contested mark took effect, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
31      In accordance with settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. In accordance with the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
32      For the purposes of applying Article 8(1)(b) of Regulation No 40/94, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
33      Furthermore, the global assessment of the likelihood of confusion must, in relation to the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
34      It should be noted at the outset that, in accordance with Article 8(1)(b) of Regulation No 40/94, the existence of a likelihood of confusion is to be assessed in relation to the public in the territory in which the earlier mark is protected. In the present case, since the earlier mark is an EU trade mark, it is protected in a unitary manner throughout the territory of the European Union, in accordance with Article 1(2) of Regulation No 40/94 (subsequently Article 1(2) of Regulation No 207/2009, now Article 1(2) of Regulation 2017/1001). In such a case, it is not a requirement of Article 8(1)(b) of Regulation No 40/94 that, for the mark applied for to be refused registration, the likelihood of confusion must exist in all the Member States and in all the linguistic regions of the European Union. The unitary character of the EU trade mark means that an earlier EU trade mark can be relied on in opposition proceedings against any application for registration of an EU trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (see, to that effect, judgment of 16 January 2018, Sun Media v EUIPO – Meta4 Spain (METABOX), T‑204/16, not published, EU:T:2018:5, paragraph 74).
35      Moreover, in view of the fact that the earlier mark consists of the English word ‘sky’, it must be held that the Board of Appeal did not err in focusing its examination, in paragraph 17 of the contested decision, on whether there was a likelihood of confusion on the part of the English-speaking public in the European Union.
36      In addition, it should be noted that, contrary to the applicant’s claims, for the purposes of assessing whether there is a likelihood of confusion, only the description of the goods in respect of which registration of the mark was sought is relevant; the intended or actual use of that mark cannot be taken into account, since the registration does not contain a restriction to that effect. It follows that the specific use which a proprietor has made of the contested mark is not capable of changing the goods or services taken into account for the purposes of the assessments underlying the finding of the existence of a likelihood of confusion, such as the definition of the relevant public and its level of attention or the similarity between those goods or services on the part of that public (see, to that effect, order of 30 June 2010, Royal Appliance International v OHIM, C‑448/09 P, not published, EU:C:2010:384, paragraphs 71 and 72).
37      It must therefore be held that the arguments put forward by the applicant, alleging that any likelihood of confusion should be excluded on account of the use of the contested mark in air transport services, are based on a false premiss. Moreover, it should also be noted that, contrary to the applicant’s claims, the Board of Appeal did not err in finding that publication services for magazines, books, journals and other printed matter are similar to printed matter because of their direct complementary links.
38      As regards the entertainer services, the services of film production, photography and the production of radio and television programmes covered by the contested mark, it is clear that they are included in the entertainment services covered by the earlier mark, with the result that they are identical (see, to that effect, judgment of 15 September 2009, Royal Appliance International v OHIM – BSH Bosch und Siemens Hausgeräte (Centrixx), T‑446/07, not published, EU:T:2009:327, paragraph 35 and the case-law cited). The same is true of the training and education services and the services of organising symposiums, conferences, congresses and seminars covered by the contested mark, which are included in the training and education services covered by the earlier mark and are not affected in their entirety by the restrictions attached to those services (see paragraph 5, second indent, above).
39      As regards the similarity between the marks at issue, it should be noted at the outset that, as is apparent from page 13 of EUIPO’s file, the contested mark was registered as a word mark. In paragraph 23 of the contested decision, the Board of Appeal describes the contested mark as a figurative mark, a classification which EUIPO reproduces in paragraph 1 of its response. It should, however, be specified that, as stated in paragraphs 40 to 45 below, that divergence does not affect the assessment of the similarity between the marks at issue or the existence of a likelihood of confusion, in the present case.
40      Moreover, it must be stated that, although the applicant noted certain differences linked to the presence of the word ‘life’ in the contested mark, it concludes that the degree of visual similarity ‘is not particularly high’. That finding is, in essence, the same as that set out by the Board of Appeal in paragraph 25 of the contested decision, which states that the marks at issue have ‘at least an average degree’ of visual similarity. Moreover, that assessment is not vitiated by an error in view of the perfectly legible nature of the contested mark, the increased banality of the frame surrounding the word ‘skylife’ and the minimal stylisation of the dot above the letter ‘i’.
41      The Board of Appeal’s assessment that the marks at issue are phonetically similar to an average degree is also correct, since those marks share the word ‘sky’, the term ‘life’ of the contested mark does not suffice, contrary to the applicant’s assertion, to rule out any phonetic similarity.
42      That is also the case from a conceptual point of view. The marks at issue share the concept of ‘sky’, whereas the word ‘life’ refers to a concept which may define sky as an area capable of accommodating living beings, such as birds or even passengers of a flight.
43      As regards the global assessment of the likelihood of confusion, it should be noted that the applicant’s arguments do not alter the conclusion which the Board of Appeal set out in paragraph 33 of the contested decision that the identity and similarity of the goods and services covered by the marks at issue, combined with the average degree of visual, phonetic and conceptual similarity between those marks, is sufficient to establish, in view of the normal distinctiveness of the earlier mark, a likelihood of confusion with regard to the English-speaking public of the European Union.
44      In particular, first, the applicant has not put forward any tangible evidence or argument capable of showing that the earlier mark is not of normal distinctive character. In that regard, the fact that the word ‘sky’ refers to an area does not, in itself, mean that the earlier mark is not distinctive for the goods and services described in paragraph 5 above.
45      Second, the assessment of any likelihood of confusion must be made by taking into account the signs as they were registered or as they appear in the trade mark application, regardless of whether they are used alone or together with other marks or indications (judgment of 18 October 2007, AMS v OHIM – American Medical Systems (AMS Advanced Medical Services), T‑425/03, EU:T:2007:311, paragraph 91). It follows that, contrary to the applicant’s claims, the possible use of the earlier mark in conjunction with other marks, whether of a reputation or not, belonging to the applicant, is a criterion that is irrelevant for the purposes of assessing whether there is a likelihood of confusion in the present case.
46      Third, it is true that the possibility cannot be ruled out that the coexistence of two marks on a particular market might, together with other elements, contribute to diminishing the likelihood of confusion between those marks on the part of the relevant public. The absence of a likelihood of confusion may, in particular, be inferred from the peaceful nature of the coexistence of the marks at issue on the market concerned. Such a possibility can be taken into consideration only if, at the very least, during the proceedings before EUIPO, the proprietor of the contested mark has duly demonstrated, even if only by means of a body of consistent evidence, first, that that coexistence was based on the absence of a likelihood of confusion on the part of the relevant public and, second, that the coexistence in question is based on an actual use that is sufficiently long for it to be able to influence the perception of the relevant consumer. Moreover, as regards the geographical scope of coexistence, where the application for a declaration of invalidity is based on an earlier EU mark and the coexistence of the marks at issue is relied on in support of there being no likelihood of confusion between the marks at issue, it is for the party relying on that coexistence to establish proof of it throughout the European Union (see, to that effect, judgments of 10 April 2013, Höganäs v OHIM – Haynes (ASTALOY), T‑505/10, not published, EU:T:2013:160, paragraphs 47 to 49, and of 30 June 2015, La Rioja Alta v OHIM – Aldi Einkauf (VIÑA ALBERDI), T‑489/13, EU:T:2015:446, paragraphs 70, 80 and 81).
47      The Board of Appeal’s assessment that the applicant did not submit, during the proceedings before the Cancellation Division and the Board of Appeal, evidence capable of demonstrating that those conditions are met is not disputed by the applicant. In addition, paragraph 7 of the contested decision, to which the applicant refers, merely summarises the arguments relied on by the applicant in support of its action without acknowledging the peaceful coexistence of the marks at issue in the sense set out in paragraph 45 above.
48      Fourth, the applicant’s argument alleging limitation of the application for a declaration of invalidity of the contested mark within the meaning of Article 54(1) of Regulation No 207/2009 (now Article 61 of Regulation 2017/1001) cannot succeed. In that regard, it must be observed that, in accordance with Article 54(1) of Regulation No 207/2009, where the proprietor of an EU trade mark has acquiesced, for a period of five successive years, in the use of a later EU trade mark in the Union while being aware of such use, that proprietor is no longer to be entitled on the basis of the earlier trade mark to apply for a declaration that the later trade mark is invalid in respect of the goods or services for which the later trade mark has been used, unless registration of the later EU trade mark was applied for in bad faith.
49      It follows that four conditions must be satisfied before the period of limitation in consequence of acquiescence starts to run if there is use of a later trade mark which is identical with the earlier trade mark or confusingly similar. First, the later trade mark must be registered. Second, the application for its registration must have been made by its proprietor in good faith. Third, the later trade mark must be used in the territory where the earlier trade mark is protected. Fourth, the proprietor of the earlier trade mark must be aware of the use of that trade mark after its registration (see, to that effect, judgment of 28 June 2012, I Marchi Italiani and Basile v OHIM – Osra (B. Antonio Basile 1952), T‑133/09, EU:T:2012:327, paragraph 31). In addition, it is for the proprietor of the contested mark to adduce to that the conditions in question are fulfilled and, particularly, to establish, with supporting evidence, the date on which the proprietor of the earlier mark actually became aware of the use of the contested mark (see, to that effect, judgments of 20 April 2016, Tronios Group International v EUIPO – Sky (SkyTec), T‑77/15, EU:T:2016:226, paragraphs 32 and 33, and of 7 February 2019, Swemac Innovation v EUIPO – SWEMAC Medical Appliances (SWEMAC), T‑287/17, EU:T:2019:69, paragraph 90).
50      It is apparent, however, from the statement setting out the grounds of appeal brought before the Board of Appeal that the applicant did not raise the question of possible limitation in consequence of acquiescence. The only reference which could be regarded as vaguely relevant in this respect is that relating to the fact that the magazine Skylife has been offered in aircraft operated by the applicant since 1989. Such a reference, which does not, in addition, contain any element relating to the fourth condition for the applicability of Article 54(1) of Regulation No 207/2009, cannot be regarded as having brought before the Board of Appeal a possible limitation in consequence of acquiescence on the part of the intervener to seek a declaration that the contested mark is invalid.
51      First, under Article 95(1) of Regulation 2017/1001, in proceedings relating to relative grounds for refusal of registration, EUIPO’s examination is to be restricted to the facts, evidence and arguments provided by the parties and the relief sought. It follows from that provision that it is also for the parties to provide the facts and evidence in support of the relief sought (judgment of 11 April 2019, Inditex v EUIPO – Ansell (ZARA TANZANIA ADVENTURES), T‑655/17, not published, EU:T:2019:241, paragraph 37).
52      Second, in accordance with Article 188 of the Rules of Procedure of the General Court, the pleadings lodged by the parties in proceedings before the Court may not change the subject matter of the proceedings before the Board of Appeal. Thus, an applicant does not have the power to alter before the Court the terms of the dispute as delimited in the respective claims and allegations submitted by itself and by the intervener (judgment of 28 June 2012, Basile and I Marchi Italiani v OHIM – Osra (B. Antonio Basile 1952), T‑134/09, not published, EU:T:2012:328, paragraph 15), with the result that that argument must also be dismissed.
53      It follows that the first plea must be rejected and that the action must be dismissed in its entirety, without it being necessary to give a ruling on the admissibility of the applicant’s second head of claim.
Costs
54      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
55      In addition, the intervener also contended that the applicant should be ordered to reimburse the costs incurred before the Cancellation Division and the Board of Appeal.
56      In that regard, first, it must be recalled that, under Article 190(2) of the Rules of Procedure, only costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. It follows that the costs incurred for the purposes of the proceedings before the Cancellation Division cannot be regarded as recoverable costs (see judgment of 25 April 2013, Bell & Ross v OHIM – KIN (Wristwatch case), T‑80/10, not published, EU:T:2013:214, paragraph 164 and the case-law cited). Therefore, the intervener’s claim must be rejected since it seeks to have the applicant bear the costs incurred before the Cancellation Division.
57      Second, in so far as the intervener’s request concerns the costs of the proceedings before the Board of Appeal, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, it is the operative part of the contested decision which continues to determine the costs in question (see, to that effect, judgment of 4 October 2017, Intesa Sanpaolo v EUIPO – Intesia Group Holding (INTESA), T‑143/16, not published, EU:T:2017:687, paragraph 74).
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Turk Hava Yollari AO to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Sky Ltd.
Costeira
Kancheva
Perišin
Delivered in open court in Luxembourg on 27 January 2021.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.