JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
14 May 2025 (*)
( EU trade mark – Invalidity proceedings – EU word mark Dr.Albert – Absolute ground for invalidity – Bad faith – Article 59(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑327/24,
Techtex SRL, established in Cicârlău (Romania), represented by B. Bularda, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Adina Alberts, residing in Bucharest (Romania), represented by V. Roș and A. Livădariu, lawyers,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira (Rapporteur), President, M. Kancheva and P. Zilgalvis, Judges,
Registrar: V. Di Bucci,
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, Techtex SRL, seeks, in essence, the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 April 2024 (Case R 763/2023-4) (‘the contested decision’).
I.      Background to the dispute
2        On 15 October 2021, the intervener, Ms Adina Alberts, filed with EUIPO an application for a declaration of invalidity of the EU trade mark registered following an application filed on 4 April 2020 for the word sign Dr.Albert.
3        The goods covered by the contested mark in respect of which a declaration of invalidity was sought were in Classes 10 and 20 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, for each of those classes, to the following description:
–        Class 10: ‘Clothing, headgear and footwear for medical personnel and patients; face masks for surgical use for anti bacterial protection; high filter surgical masks; masks for use by medical personnel’;
–        Class 20: ‘Clothes hangers, clothes stands [furniture] and clothes hooks’.
4        The ground relied on in support of the application for a declaration of invalidity was, in particular, that set out in 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).
5        On 14 February 2023, the Cancellation Division rejected the application for a declaration of invalidity.
6        On 11 April 2023, the intervener filed a notice of appeal with EUIPO
against the decision of the Cancellation Division.
7        By the contested decision, the Board of Appeal upheld the appeal on the ground that the applicant had acted in bad faith at the time of filing the contested mark.
8        In the first place, after setting out several contextual elements, the Board of Appeal, first, found, in essence, that the intervener had provided sufficient evidence showing that she was a public figure and a renowned plastic surgeon, recognised in Romania under the name Dr Adina Alberts, and that she was the proprietor of two earlier Romanian word marks:
–        the word mark ADINA ALBERTS, registered on 18 January 2011 under the number 115 271, for ‘medical services’ in Class 44, hereinafter ‘earlier mark No 1’,
–        the word mark DR. ALBERTS, registered on 12 July 2019 under the number 165 053, for ‘cosmetic preparations and non-medicated toiletries; non-medicated toothpaste; perfumes, essential oils; bleaching preparations and other washing substances; cleaning, polishing, degreasing and abrasive preparations’ in Class 3 and ‘clothing, footwear and headgear’ in Class 25, hereinafter ‘earlier mark No 2’.
9        Secondly, the Board of Appeal found that the contested mark, on the one hand, and the name of the intervener and earlier marks Nos 1 and 2, on the other, consisted of nearly identical elements. It observed that the goods covered by the contested mark had a certain connection or complementarity with the intervener’s medical career and with the goods and services in Classes 25 and 44 covered by earlier marks Nos 1 and 2, before noting that, in any event, the existence of a likelihood of confusion was not a prerequisite for establishing bad faith.
10      Thirdly, the Board of Appeal took the view that the applicant had knowledge of the intervener’s renown, her professional occupation as a medical doctor and most likely her publicly stated opinions, including those on the proper use of protective masks at the start of the COVID-19 pandemic.
11      Fourthly, the Board of Appeal found, in essence, that the applicant’s intention at the time of filing the contested mark was to create an association in the minds of the relevant public between its goods and the renown of the intervener, and that the applicant had not explained the commercial logic underlying the filing of the contested mark.
12      In the second place, the Board of Appeal took the view that the applicant’s argument alleging bad faith on the part of the intervener was ineffective and unproven.
II.    Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        principally, ‘reject the cancellation in its entirety’;
–        in the alternative, refer the case back to the Board of Appeal for reconsideration;
–        order EUIPO and the intervener to pay the costs.
14      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
15      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
A.      The interpretation of the applicant’s second head of claim
16      By its second head of claim, the applicant asks the Court to ‘reject the cancellation in its entirety’.
17      That head of claim, submitted as the principal claim, must be understood, in particular in the light of the third head of claim, submitted in the alternative and requesting that the Court refer the case back to the Board of Appeal for reconsideration, as seeking
that the Court reject the application for a declaration of invalidity, and, accordingly, as requesting that the Court alter the contested decision within the meaning of Article 72(3) of Regulation 2017/1001 by adopting the decision which the Board of Appeal ought to have taken, in accordance with the provisions of that regulation.
B.      The admissibility of evidence and arguments presented for the first time before the Court
18      EUIPO submits that Annex A3 to the application and the arguments relating to it, in particular
those in paragraphs 11 to 13 and 50 to 52 of the application, and the Wikipedia entry produced in paragraphs 15 and 54 of thereof, were presented for the first time before the Court and must, accordingly, be declared inadmissible.
19      In that regard, the Court notes that the purpose of bringing actions before the General Court is to review the legality of the decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001 and that, in proceedings for annulment, the legality of the contested measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. Therefore, it is not the Court’s function to re-evaluate the factual circumstances in the light of evidence adduced for the first time before it (see judgment of 13 May 2020, Peek & Cloppenburg v EUIPO – Peek & Cloppenburg (Peek & Cloppenburg), T‑444/18, not published, EU:T:2020:185, paragraph 36 and the case-law cited).
20      In the present case, it must be found that Annex A3 to the application, which consists of a birth certificate, was presented for the purpose of proving that the applicant’s choice to include the word element ‘albert’ in the contested mark was justified by the fact that that was the first name of the son of its majority shareholder. In addition, the Wikipedia entry produced in paragraphs 15 and 54 of the application, which contains a list of male Romanian first names, was presented in order to show that the first name Albert is commonly used in Romania.
21      It is apparent from the documents before the Court that Annex A3 to the application, the Wikipedia entry and the arguments cited in paragraph 20 above were, respectively, presented and explained for the first time before the Court.
22      Accordingly, they must be rejected as inadmissible.
C.      Substance
23      In support of its action, the applicant puts forward two pleas in law, alleging, in essence, first, that the Board of Appeal failed to take into account bad faith on the part of the intervener and the abuse of process and, secondly, infringement of Article 59(1)(b) of Regulation 2017/1001.
24      The Court considers it appropriate to examine at the outset the second plea in law.
1.      The second plea in law, alleging infringement of Article 59(1)(b) of Regulation 2017/1001
25      The applicant claims, in essence, that the Board of Appeal erred in finding that it was acting in bad faith when it filed the application for registration of the contested mark.
26      EUIPO and the intervener dispute the applicant’s arguments.
27      Under Article 59(1)(b) of Regulation 2017/1001, 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 it filed the application for the trade mark.
28      In that regard, it must be noted that the concept of ‘bad faith’, referred to in Article 59(1)(b) of Regulation No 2017/1001, is not defined, delimited or even described in any way in the legislation (see, to that effect, judgment of 29 June 2017, Cipriani v EUIPO – Hotel Cipriani (CIPRIANI), T‑343/14, EU:T:2017:458, paragraph 25 and the case-law cited).
29      Nevertheless, the Court of Justice and the General Court have provided a number of clarifications as to how the concept of bad faith as referred to in Article 59(1)(b) of Regulation 2017/1001 should be interpreted and the existence of that concept assessed.
30      In the first place, 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. The concept of bad faith must, moreover, be understood in the context of trade mark law, which is that of the course of trade. In that regard, 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 by 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 (judgments of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 45, and of 29 January 2020, Sky and Others, C‑371/18, EU:C:2020:45, paragraph 74).
31      Consequently, the absolute ground for invalidity referred to in Article 59(1)(b) of Regulation 2017/1001 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).
32      In the second place, the intention of an applicant for a trade mark is a subjective factor which must, however, be determined objectively by the competent administrative or 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).
33      The factors taken into account by the case-law in the context of the overall analysis undertaken pursuant to Article 59(1)(b) of Regulation 2017/1001 include, in particular: the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product or service capable of being confused with the sign for which registration is sought; the applicant’s intention to prevent that third party from continuing to use such a sign; the degree of legal protection enjoyed by the signs at issue; the applicant’s intention to prevent that third party from marketing a product; the origin of the contested sign and its use since its creation; the commercial logic underlying the filing of the application for registration of the sign as an EU trade mark and the chronology of events relating to that filing (see, to that effect, judgments of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraphs 38, 43 and 44, and of 28 January 2016, Davó Lledó v OHIM – Administradora y Franquicias América and Inversiones Ged (DoggiS), T‑335/14, EU:T:2016:39, paragraphs 46 and 48).
34      In addition, in accordance with the case-law, the fact that use of a sign for which registration is sought would enable the applicant to take unfair advantage of the reputation of an earlier trade mark or sign or even of the name of a famous person is such as to establish bad faith on the part of the applicant (see, to that effect, judgment of 6 July 2022, Zdút v EUIPO – Nehera and Others (nehera), T‑250/21, EU:T:2022:430, paragraph 32 and the case-law cited).
35      In the third place, where the bad faith of the trade mark applicant is based on its intention to take unfair advantage of the reputation of an earlier sign or name, the relevant public for the purpose of assessing the existence of that reputation and of the unfair advantage taken of that reputation is that targeted by the contested mark, namely the average consumer of the goods for which it was registered (judgment of 6 July 2022, nehera, T‑250/21, EU:T:2022:430, paragraph 33; see also, by analogy, judgment of 27 November 2008, Intel Corporation, C‑252/07, EU:C:2008:655, paragraph 36).
36      In the fourth and last place, it should be borne in mind that it is for the applicant for a declaration of invalidity to prove the circumstances which substantiate a finding that the proprietor of an EU trade mark was acting in bad faith when it filed the application for registration of that mark (see judgment of 8 May 2014, Simca Europe v OHIM – PSA Peugeot Citroën (Simca), T‑327/12, EU:T:2014:240, paragraph 35 and the case-law cited), good faith being presumed until proven otherwise (see judgment of 21 April 2021, Hasbro v EUIPO – Kreativni Dogadaji (MONOPOLY), T‑663/19, EU:T:2021:211, paragraph 42 and the case-law cited).
37      However, 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 it 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 (judgment of 21 April 2021, MONOPOLY, T‑663/19, EU:T:2021:211, paragraph 43).
38      It is in the light of the foregoing considerations that the lawfulness of the contested decision must be examined, inasmuch as the Board of Appeal found that the applicant acted in bad faith in the present case.
39      In that regard, it should be observed that it was necessary to establish that the applicant was acting in bad faith on the date of filing the application for registration of the contested mark, namely 4 April 2020 (‘the relevant date’).
40      It should also be noted that, in order to establish, in particular, that the applicant acted in bad faith, and pursuant to the applicant’s request that the intervener provide proof of use of earlier mark No 1, the latter submitted, before EUIPO, inter alia, the following evidence:
–        a photograph and a magazine article showing that the intervener was ranked 33rd  in the ‘Top 50 Women in Economy’ in Romania in 2019;
–        testimonials from clients of the clinic named ‘Care Zone’, dating from 2015 to 2019, some of which refer to the intervener’s name;
–        extracts from the covers of Romanian magazines and from articles published therein, dating, in particular, from 2005, 2006, 2010, 2011, 2013, 2015, 2017, 2019 and 2020, on which the intervener features or which concern her;
–        screenshots from television shows, dating, in particular, from 2013, 2015 and 2017, in which the intervener appears;
–        the covers of two books published in 2007 and 2013 featuring the name ‘Dr. Adina Alberts’ and documents relating to the ‘Doctor Adina Alberts’ association;
–        extracts of press articles, dating, in particular, from March, May, June, July, August, September, October and December 2020, a social media post from March 2020, in which the intervener makes public statements on the use of protective masks, and screenshots from videos in which the intervener expresses her views on issues relating to health in the context of the COVID-19 pandemic;
–        an extract from a website dating from June 2020 showing that the intervener enjoyed a level of trust of 35% among the population in the context of the municipal elections in Bucharest (Romania);
–        images featuring the intervener’s posters and advertising materials relating to her political campaign, which feature the name ‘Dr. Adina Alberts’ and some of which bear the sign ‘Bucuresti 2020’;
–        opinion polls carried out by the Centrul de Sociologie Urbana si Regionala (Centre for Urban and Regional Sociology, Romania), dating from May-June and September 2020, on the recognition of the intervener by the public and on the intention to vote for her;
–        a research report entitled ‘Image and Notoriety Study of a Political Figure’, carried out by Reveal in 2020, according to which 33% of respondents had heard of the intervener before the survey;
–        trade mark certificates held by the intervener in respect of earlier marks Nos 1 and 2;
–        undated extracts from social media containing negative comments in which people assumed that the intervener had produced protective masks in contradiction with her public statements;
–        a screenshot of a press article, dating from 2013, according to which a director of the applicant introduced the intervener to her spouse;
–        a summary of a survey conducted by iZi data, dating from 2022, carried out amongst 1 004 Romanians, regarding the public recognition of ‘Dr Adina Alberts’;
–        screenshots of social media accounts of the intervener showing, in particular, the number of followers;
–        written statements, dating from 2016 in particular, from people confirming the medical services provided by the intervener.
(a)    The relevant facts of the case
41      In paragraph 37 of the contested decision, under the title ‘the relevant facts of the case’, the Board of Appeal set out the following contextual elements, which are not disputed by the parties:
–        the intervener (i) was a Romanian plastic surgeon who owned a clinic called ‘Care Zone’; (ii) had the surname Alberts as a result of her marriage with a Dutch citizen; (iii) had changed her name over the years, but remained publicly known and referred to by the name Alberts; (iv) ran, in 2020, as a mayoral candidate for the first district of Bucharest; (v) had, since March 2020, made public statements on controversial issues relating to the COVID-19 pandemic, including on the proper use of protective masks; (vi) was the proprietor of earlier marks Nos 1 and 2;
–        the applicant (i) was a Romanian company whose main activity up until 2020 related to the ‘manufacture of non-woven textile fabrics and articles thereof, except for clothing’; (ii) had a website that had been registered in 2018, but which remained inactive until August 2020; (iii) had not used the contested mark before 2020 and had started to use it after the relevant date only for protective masks;
–        a press article, dating from 2013, stated that a major shareholder of the applicant had introduced the intervener to her spouse.
(b)    The bad faith assessment
42      In order to find that the applicant had acted in bad faith, the Board of Appeal relied, in essence, first, on the intervener’s renown and the existence of earlier marks Nos 1 and 2, secondly, on the identity or similarity between the contested mark, on the one hand, and the intervener’s name and earlier marks Nos 1 and 2, on the other, thirdly, on the applicant’s knowledge of the use of the intervener’s name and of earlier marks Nos 1 and 2 and, fourthly, on the applicant’s dishonest intention on the relevant date.
(1)    The assessment relating, in essence, to the intervener’s renown and the existence of earlier marks Nos 1 and 2
43      In paragraphs 39 to 42 of the contested decision, the Board of Appeal found that the intervener had submitted sufficient evidence proving that she was a renowned plastic surgeon in Romania, an aesthetician, a socialite and public figure known, in that country, by the name of Dr Adina Alberts on the relevant date, in particular on account of her presence on television, online and on social media, but also as a medical specialist with a public opinion on controversial issues relating to the COVID-19 pandemic. It noted that the intervener had a significant media presence in Romania before the relevant date, which was apparent from her featuring on a large number of magazine covers and publications over a long period of time, from her 33rd place ranking in ‘Top 50 Women in Economy’ in Romania in 2019, from her thousands of followers on social media, from the percentages concerning public opinion from various opinion polls and surveys carried out in May-June and September 2020, which were also relevant on the relevant date and were supported by surveys conducted in 2022, and from press publications indicating the intervener’s public stance on the proper use of protective masks. The Board of Appeal added that the evidence also showed that the intervener was the proprietor of earlier marks Nos 1 and 2, registered before the relevant date.
44      The applicant claims, in essence, that the intervener is not renowned, that the Board of Appeal erred in its assessment of the evidence submitted by the intervener, that the finding of the latter’s alleged renown by the Board of Appeal is irrelevant in the context of the present case and that earlier marks Nos 1 and 2 have not been put to use and do not have a reputation.
45      EUIPO and the intervener dispute the applicant’s arguments.
46      In the present case, in the first place, it should be observed that it is apparent, in particular, from the extracts from the covers of magazines on which the intervener features and from articles about her published therein, dating from a period between 2005 and 2020, from the screenshots of television shows in which the intervener appears, dating, in particular, from 2013, 2015 and 2017 and also from the intervener’s placement at 33rd in the ranking entitled ‘Top 50 Women in Economy’ from 2019, that the intervener enjoyed, over a long period of time, broad media coverage in Romania.
47      In addition, the extract from the website dating from June 2020 showing that the intervener enjoyed a level of trust of 35% among the population in the context of the municipal elections in Bucharest, the opinion polls carried out by the Centre for Urban and Regional Sociology, dating from May-June and September 2020, on the recognition of the intervener by the public and the research report entitled ‘Image and Notoriety Study of a Political Figure’, carried out by Reveal in 2020, according to which 33% of respondents had heard of the intervener before the survey, are such as to prove that that intervener was known by the Romanian public on the relevant date. Since renown is, in general, acquired gradually (see, to that effect and by analogy, judgment of 24 April 2024, Kneipp v EUIPO – Patou (Joyful by nature), T‑157/23, EU:T:2024:267, paragraph 22 and the case-law cited), that evidence allows for conclusions to be drawn regarding the intervener’s renown on the relevant date, even though they date, in particular, from May-June or September 2020.
48      It is also appropriate to observe that, in much of the evidence examined in paragraphs 46 and 47 above, the intervener is presented in her capacity as a doctor. This is apparent in particular from the magazines ‘Biz’ from 2012, ‘Etiquette’ from 2013 and also the ranking entitled ‘Top 50 Women in Economy’ from 2019, from the article published on ‘Ziare.Com’ in 2013 and from various press articles and publications dating from 2019 relating to the fact that the intervener had exposed a fake surgeon in her clinic. Furthermore, it can be inferred from the testimonials from clients of the clinic named ‘Care Zone’, of which the intervener is the proprietor, dating from 2015 to 2019, and from the written statements from people confirming the medical services provided by the intervener, dating, in particular, from 2016, that the intervener was recognised on the relevant date for her career as a medical doctor.
49      In addition, the extract from the press article from March 2020 in which the intervener gives advice on the use of protective masks in public and the social media post in which she makes statements about the use of such masks, which also date from March 2020 and which are supported by her previously expressed views on that issue, demonstrate the intervener’s public stance on protective masks.
50      In the light of those elements, it must be found that the Board of Appeal was correct to find, in essence, that the intervener was, on the relevant date, renowned in Romania and that that renown related, in part, to her career as a medical doctor.
51      In so far as the applicant claims that the Board of Appeal did not examine all the evidence submitted by the intervener since the latter appears under other names than that of Alberts, it is sufficient to note that, in paragraph 37 of the contested decision, the Board of Appeal stated, without being contradicted on that point by the applicant, that the intervener had changed her name over the years, but had remained publicly known and referred to by the name Adina Alberts or Dr Adina Alberts. Such an argument cannot therefore succeed.
52      It is also necessary to reject the applicant’s arguments alleging that most of the evidence intended to demonstrate the intervener’s renown concerns fashion or business-related accolades for the clinic ‘Care Zone’ for which she is responsible, that appearances in tabloids are unrelated to the contested goods and that the intervener started to address controversial issues ‘more prominently’ after the relevant date. In that regard, it should be observed that, in paragraph 39 of the contested decision, the Board of Appeal found that the intervener was a famous person, in particular on account of her presence on television, online and on social media. As is apparent from the case-law cited in paragraph 34 above, the fact that the use of a sign would enable the applicant to take unfair advantage of the renown of the name of a famous person is such as to establish bad faith on the part of the applicant. Accordingly, the Board of Appeal cannot be criticised for taking into account the fame of the intervener in the present case.
53      In the second place, although the applicant submits, in essence, that the intervener’s earlier marks Nos 1 and 2 had not been put to use and did not have a reputation, it should be noted that, in paragraph 42 of the contested decision, the Board of Appeal took into account the fact that the intervener was the proprietor of those marks and not their use or reputation. In any event, it is appropriate to note that, as is apparent from the case-law cited in paragraph 33 above, the fact that the applicant knows or must know that a third party is using, in at least one Member State, a sign identical or similar to the contested mark for goods or services identical to those covered by that mark is only one factor among many which may be taken into account for the purpose of ruling on whether an applicant acted in bad faith.
54      Accordingly, in the light of those considerations, it must be found that none of the arguments raised by the applicant is capable of calling into question the assessment of the Board of Appeal relating, in essence, to the intervener’s renown and the existence of earlier marks Nos 1 and 2.
(2)    The assessment relating to the identity or similarity between the contested mark, on the one hand, and the intervener’s name and earlier marks Nos 1 and 2, on the other
55      In paragraphs 43 to 48 of the contested decision, the Board of Appeal found, in the first place, that the contested mark, on the one hand, and intervener’s name and earlier marks Nos 1 and 2, on the other, consisted of nearly identical elements, namely the element ‘dr.albert’ constituting the contested mark and the elements ‘dr. adina alberts’, ‘dr.alberts’ or ‘alberts’ constituting the intervener’s name and earlier marks Nos 1 and 2. It observed that neither the first name Albert nor the surname Alberts are Romanian, that the intervener obtained the surname Alberts in 2000 after marrying a Dutch citizen, but that the applicant had not provided any explanation as to the choice of the contested mark, composed of the title ‘dr.’ and the name Albert, which is highly uncommon in Romania and nearly identical to the intervener’s name. The applicant merely repeated an argument based on the free use of the particles ‘dr.’ and ‘doc’, but did not explain the reason for using the element ‘dr.’ with the name Albert. In addition, the Board of Appeal found that the applicant had never used the contested mark before the relevant date, that there was no medical doctor in the applicant’s staff and that none of its shareholders had Albert as a first name or surname. It inferred from that that the near identity between the contested mark, on the one hand, and the intervener’s name and earlier marks Nos 1 and 2, on the other, was not a mere coincidence.
56      In the second place, the Board of Appeal noted that the goods in Class 10 covered by the contested mark had a certain connection with the medical career of the intervener, who had spoken publicly, in particular, on the proper use of protective masks in the context of the COVID-19 pandemic before the relevant date and in the same territory in which the applicant is established, namely Romania. It observed that the same goods also had a connection with the services in Class 44 covered by earlier mark No 1 and, in part, with the goods in Class 25 covered by earlier mark No 2. The Board of Appeal found that the goods in Class 20 covered by the contested mark were complementary to the goods in Class 25 covered by earlier mark No 2. It stated that, in any event, the Court of Justice had already held that, in the absence of any likelihood of confusion between the sign used by a third party and the contested mark, or if there has been no use, by a third party, of a sign identical or similar to the contested mark, other factual circumstances might, depending on the circumstances, constitute relevant and consistent indicia establishing bad faith on the part of the applicant.
57      The applicant criticises, in essence, the Board of Appeal for failing to take into account the perception by the relevant public of the first name Albert, for taking the view that it had not provided any explanation as to the choice of the name of the contested mark and for not taking into account the fact that the intervener was not known for production activities in relation to the goods covered by the contested mark or protective masks.
58      EUIPO and the intervener dispute the applicant’s arguments.
59      In the present case, in the first place, it should be observed that, as is apparent, in essence, from paragraphs 50 and 51 above, the intervener was known in Romania on the relevant date by the name Adina Alberts and her renown related, in part, to her career as a medical doctor. In addition, as is stated in paragraph 53 above, the intervener is the proprietor of, inter alia, earlier marks Nos 1 and 2, namely the word marks ADINA ALBERTS and DR. ALBERTS.
60      It should also be noted that the contested mark consists of the element ‘dr.’, which is an abbreviation of the title doctor, and of the element ‘albert’.
61      It should accordingly be observed that the contested mark contains, in the same order, six of the seven letters which constitute the intervener’s surname and the second element of earlier mark No 1, namely ‘a’, ‘l’, ‘b’, ‘e’, ‘r’, ‘t’, and is nearly identical to earlier mark No 2, from which it differs only in respect of the letter ‘s’, which is present at the end of earlier mark No 2.
62      It follows that the contested mark is highly similar to the intervener’s name, which, furthermore, is renowned, in part, due to her career as a medical doctor in the territory in which the applicant is established, namely Romania, and to earlier mark No 1, and that it is nearly identical to earlier mark No 2.
63      In that regard, it should be held that such a finding of similarity is a relevant factor to be taken into account in the overall assessment of the existence of bad faith (see, to that effect, judgment of 19 October 2022, Baumberger v EUIPO – Nube (Lío), T‑466/21, not published, EU:T:2022:644, paragraph 43).
64      Although the applicant submits that Albert is a common male first name in Romania, with the result that the relevant public will perceive it as such, it is sufficient to find that, as has been stated in paragraphs 21 and 22 above, that argument and the Wikipedia entry produced in paragraphs 15 and 54 of the application in support of it were presented for the first time before the Court, with the result that they cannot be taken into consideration.
65      In addition, contrary to what the applicant claims, the common use of the first name Albert in Romania also cannot constitute a well-known fact, that is to say a fact which is likely to be known by anyone or which may be learnt from generally accessible sources (see, to that effect, judgment of 22 June 2004, Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO), T‑185/02, EU:T:2004:189, paragraph 29).
66      Accordingly, the Board of Appeal cannot be criticised for not taking into account the alleged fact that the first name Albert is commonly used in Romania and will therefore be perceived as such by the relevant public.
67      Furthermore, it is clear that, before EUIPO, the applicant did not provide any plausible explanation as to the choice to use the element ‘albert’ in the contested mark. As is apparent from paragraph 43 of the contested decision, during the administrative procedure, it merely repeated an argument based on the free use of the particles ‘dr.’ and ‘doc’ and of the term ‘doctor’, without referring to the element ‘albert’ or its combination with the element ‘dr.’. However, in accordance with the case-law cited in paragraph 37 above, 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 it 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.
68      The argument that the applicant used the first name Albert in the contested mark because the son of its majority shareholder was so named and Annex A3 to the application submitted in support of that argument were relied on for the first time before the Court and must, as had been stated in paragraphs 21 and 22 above, be rejected as inadmissible. In addition, the fact that they were put forward so late suggests a lack of plausibility.
69      As to the remainder, the assessment of the Board of Appeal based on there being no medical doctor in the applicant’s staff and none of its directors having Albert as a first name or surname is intended to search, in the absence of arguments from the applicant as to the choice to use the element ‘albert’ in the contested mark, for the commercial logic pursued by the application for registration of the contested mark.
70      In the second place, it is appropriate to observe that the applicant claims that the intervener is not known for production activities in relation to the goods covered by the contested mark or protective masks.
71      In that regard, it should be noted, as EUIPO did, that, as is apparent from paragraphs 46 and 48 of the contested decision, the Board of Appeal stated that the goods in Class 10 covered by the contested mark belong to the medical field, in which the intervener operates, and that the latter had spoken publicly, in particular, on the proper use of protective masks in the context of the COVID-19 pandemic before the relevant date and in the same territory in which the applicant is established, namely Romania. In addition, in paragraph 48 of the same decision, the Board of Appeal recalled that, even though the likelihood of confusion was substantiated in the present case, according to the case-law of the Court of Justice, in the absence of any likelihood of confusion between the sign used by a third party and the contested mark, or if there has been no use, by a third party, of a sign identical or similar to the contested mark, other factual circumstances may, depending on the circumstances, constitute relevant and consistent indicia establishing bad faith on the part of the applicant. Accordingly, although the Board of Appeal referred to a certain connection or complementarity between the goods covered by the contested mark and the goods and services covered by earlier marks Nos 1 and 2 in paragraphs 46 to 48 of the contested decision, its finding is not based on a potential likelihood of confusion.
72      In any event, it is apparent from the jurisprudence that, as the Board of Appeal found, in the absence of any likelihood of confusion between the sign used by a third party and the contested mark, or if there has been no use, by a third party, of a sign identical with, or similar to, the contested mark, other factual circumstances may, depending on the circumstances, constitute relevant and consistent indicia establishing the bad faith of the applicant (judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 56).
73      Accordingly, in the light of those elements, it must be found that the applicant has not succeeded in calling into question the assessment of the Board of Appeal relating to the identity or similarity between the contested mark, on the one hand, and the intervener’s name and earlier marks Nos 1 and 2, on the other.
(3)    The assessment relating to the applicant’s knowledge of the use of the intervener’s name and of earlier marks Nos 1 and 2
74      In paragraphs 49 to 52 of the contested decision, the Board of Appeal inferred from the fact that the applicant and intervener were established in Romania and from the fact that the intervener was a famous public figure in that country, that the applicant, a majority shareholder of which appeared personally to know the intervener, had knowledge of the intervener’s renown, her professional occupation as a medical doctor and most likely her publicly stated opinions, including those on the proper use of protective masks at the start of the COVID-19 pandemic. It noted, furthermore, that the applicant had no previous experience of producing protective masks and that it had never claimed or proven to have used the contested sign for other goods or services.
75      The assessments of the Board of Appeal relating to the applicant’s knowledge of the use of the intervener’s name and of earlier marks Nos 1 and 2 are not disputed, as such, by the applicant.
76      In addition, in the light of the evidence referred to in paragraph 40 above, the Board of Appeal was entitled to consider, without making an error of assessment, that the applicant, which is established in the same country in which the intervener is renowned, namely Romania, and a director of which
appears to have personally known the intervener, could not have been ignorant of the intervener’s existence, her professional occupation as a medical doctor and her public interventions on the relevant date.
(4)    The assessment relating to the applicant’s dishonest intention on the relevant date
77      In paragraphs 53 to 63 of the contested decision, the Board of Appeal found that the applicant’s dishonest intention at the time of filing the contested mark was to create an association in the minds of the relevant public between its goods and the renown of the name under which the intervener is known as a public figure and a medical specialist with, in particular, a public opinion on the proper use of protective masks. According to the Board of Appeal, first, since the applicant made no attempt to justify either the choice of the name of the contested mark or the choice of the range of goods which that mark covers, there was no commercial logic or other reasonable motive for filing that mark other than that of taking advantage of the renown of the intervener’s name. Secondly, the applicant showed no use of the contested mark other than for protective masks, which could be associated with the name of the intervener, in particular
in the context of the views expressed by the latter on the proper use of those masks on the relevant date and at the time when the applicant began to market its goods.
78      Accordingly, the Board of Appeal found that, taking account of the chronology of the events, the objective circumstances of the present case and the indicia assessed together, it was reasonable to think that the applicant had chosen the contested mark for its potential to evoke the name of a renowned public figure and medical specialist, especially given the launch of a new product closely relating to the medical field, in the same territory in which the intervener had gained her renown. In so doing, the applicant could unfairly benefit by giving the public the false impression that the protective masks offered under the contested mark had been endorsed by the intervener.
79      In addition, the Board of Appeal noted that the opinion polls and surveys submitted by the intervener, in conjunction with the evidence of actual confusion, showed that the relevant public connected the contested mark with the name of the intervener. It observed that the applicant had not demonstrated any effort to market the contested mark, but seemed to exploit the intervener’s renown in a parasitic manner.
80      The applicant claims, in essence, that the Board of Appeal erred in finding that its intention on the relevant date was to take unfair advantage of the applicant’s renown.
81      EUIPO and the intervener dispute the applicant’s arguments.
82      In the first place, it is appropriate to examine whether the Board of Appeal was correct to take the view, in essence, that there were relevant and consistent indicia enabling it to establish the applicant’s dishonest intention at the time of filing the contested mark, before ascertaining, in the second place, whether the Board of Appeal was fully entitled to declare the contested mark invalid in respect of all the goods it covered.
(i)    The existence of relevant and consistent indicia enabling the Board of Appeal to establish the applicant’s dishonest intention at the time of filing the contested mark
83      As is apparent from paragraph 31 above, the absolute ground for invalidity referred to in Article 59(1)(b) of Regulation 2017/1001 applies, inter alia, 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.
84      In the present case, first, it should be recalled that, as is apparent from paragraph 50 above, the Board of Appeal was correct to find that the intervener was, on the relevant date, renowned in Romania and that that renown related, in part, to her career as a medical doctor.
85      Secondly, it should be noted that, as is apparent from paragraphs 60 to 62 above, the contested mark consists of the word element ‘dr.’, which is an abbreviation of the title doctor, and of the element ‘albert’, which differs from the intervener’s name, Alberts, only in respect of the letter ‘s’.
86      Thirdly, it should be observed that, as is apparent from paragraph 76 above, the Board of Appeal also did not make an error of assessment when it found that the applicant could not have been ignorant of the intervener’s existence, her professional occupation as a medical doctor and her public interventions on the relevant date.
87      Fourthly, it should be noted that, as is apparent from paragraph 67 above the applicant did not provide any argument before EUIPO as to the choice to use the element ‘albert’ in the contested mark or the choice to combine it with the element ‘dr.’. Furthermore, the applicant does not dispute the assessment of the Board of Appeal in paragraph 54 of the contested decision that it did not justify the choice of the range of goods for which it sought the protection granted by the contested mark. Accordingly, the applicant’s commercial logic or reasonable motive for filing the contested mark is not apparent from the documents before EUIPO.
88      Fifthly, it should be observed that the applicant also does not dispute the assessments in paragraphs 37 and 55 of the contested decision according to which it had not used the contested mark before 2020 and, after that date, had used it only for protective masks. In addition, it should be noted that it is apparent from the documents before the Court that the intervener had made public statements on the use of protective masks before the relevant date and continued to do so in the months following that date in the context of the COVID-19 pandemic. It follows that, as is apparent from paragraph 55 of the contested decision, a connection may be established between the start of the intervener’s public statements on the proper use of protective masks and the time when the applicant began to market protective masks under the contested mark.
89      Accordingly, it must be found that there are relevant and consistent indicia enabling the Board of Appeal to find that the intention of the applicant, when filing the contested mark, was to create an association in the minds of the relevant public between the name by which the intervener is known and the contested mark.
90      By filing the contested mark with such an intention, it may be considered that the applicant did not have the aim of engaging fairly in competition, in accordance with the case-law cited in paragraph 31 above, but of undermining, in a manner inconsistent with honest practices, the interests of the intervener, by unfairly taking advantage of her renown.
91      In accordance with the case-law, such an intention constitutes ‘bad faith’ within the meaning of Article 59(1)(b) of Regulation 2017/1001 (see, to that effect, judgment of 28 April 2021, France Agro v EUIPO – Chafay (Choumicha Saveurs), T‑311/20, not published, EU:T:2021:219, paragraph 33 and 34).
92      It follows that the Board of Appeal was entitled to find, in essence, that there were relevant and consistent indicia enabling it to establish the applicant’s dishonest intention at the time of filing the contested mark and to find that the applicant was acting in bad faith when it filed the contested mark.
93      That conclusion is not called into question by the applicant’s various arguments.
94      First, the applicant claims that the Board of Appeal did not take into account either the factors set out by the judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:361), for the purpose of assessing whether the applicant was acting in bad faith, or certain factors of the present case which, in its view, are essential.
95      In that regard, it should be borne in mind that, as is apparent from paragraph 53 of the judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:361), in order to determine whether the applicant is acting in bad faith, all the relevant factors specific to the particular case must be taken into account. Accordingly the factors listed in that judgment are only examples drawn from a number of factors which can be taken into account in order to decide whether an applicant was acting in bad faith when filing the trade mark application (see, to that effect, judgment of 29 June 2017, CIPRIANI, T‑343/14, EU:T:2017:458, paragraph 28 and the case-law cited).
96      It should also be noted that, in relation to
the present case, as is apparent from paragraph 92 above, the Board of Appeal did not make an error of assessment when it found, in essence, that there were relevant and consistent indicia enabling it to find that the applicant was acting in bad faith.
97      The allegedly essential indicia identified by the applicant cannot lead to any other conclusion.
98      First of all, in so far as the applicant claims that the intervener does not have the capacity to produce protective masks or any expertise concerning such masks and is not known by the public as a manufacturer of masks, it is sufficient to note that, as is apparent from paragraph 72 above, in the absence of any likelihood of confusion between the sign used by a third party and the contested mark, or if there has been no use, by a third party, of a sign identical with, or similar to, the contested mark, other factual circumstances may, depending on the circumstances, constitute relevant and consistent indicia establishing the bad faith of the applicant, as is the case in this instance.
99      Next, although the applicant claims to have never intended to disrupt the businesses of the intervener, it should be observed that, as is apparent from paragraphs 57 to 60 of the contested decision, the finding of the Board of Appeal that the applicant acted in bad faith is based on the latter unfairly taking advantage of the intervener’s renown, with the result that the potential disruption of her businesses cannot be relevant in such a context.
100    In addition, the arguments alleging that there is no proof of use of earlier marks Nos 1 and 2 and that there is no similarity between the goods and services covered by those marks and the goods covered by the contested mark must be rejected on the same grounds as those set out in paragraphs 53, 71 and 72 above.
101    Lastly, in so far as the applicant submits that appearances in tabloid magazines and comments posted on social media opposing the wearing of protective masks cannot constitute evidence establishing bad faith, it should be observed that, according to case-law, such evidence is capable of establishing the media coverage of a public figure and, therefore, their renown, which are relevant factors for assessing whether the applicant was acting in bad faith (see, to that effect, judgment of 14 May 2019, Moreira v EUIPO – Da Silva Santos Júnior (NEYMAR), T‑795/17, not published, EU:T:2019:329, paragraphs 31 and 32).
102    Secondly, as regards the applicant’s arguments relating to the views expressed by the intervener on protective masks, it should be noted, first of all, that it is apparent from the use of the words ‘especially’ and ‘particularly’ in paragraphs 54, 55, 58 and 59 of the contested decision that the Board of Appeal based its finding regarding the applicant’s intention at the time of filing the application for registration on the fact that the applicant might unfairly take advantage of the intervener’s renown as a public figure and medical specialist and that the fact that the intervener had publicly stated her opinions on protective masks was taken into account only to support its finding relating to the applicant’s intention at the time of filing the application for registration of the contested mark.
103    It should be noted, next, that, concerning specifically the views expressed by the intervener on protective masks, in paragraph 59 of the contested decision, the Board of Appeal found that the applicant could unfairly benefit by giving the impression that the protective masks marketed under the contested mark had been ‘endorsed’ by the intervener ‘all the more so in the context of her public opinion on the proper use of protective face mask[s] during the COVID-19 pandemic’. It could therefore be inferred from that assessment that the Board of Appeal took into account the views expressed publicly by the intervener on protective masks, by taking the view that the marketing of those masks under the contested mark was capable of being perceived as applying to masks which she had ‘endorsed’. Accordingly, the applicant’s arguments alleging that the Board of Appeal did not take into account the fact that the intervener was opposed to the wearing of protective masks on the relevant date and that no commercial logic could justify the reasoning of the board must be rejected.
104    It should be observed, lastly, that, in paragraph 37 of the contested decision, the Board of Appeal noted that, since March 2020, the intervener had made public statements on controversial issues relating to the COVID-19 pandemic, including on the proper use of protective masks, her public appearances continuing into 2020 and 2021. In addition, it is apparent from the evidence submitted by the intervener during the administrative procedure, as listed in paragraph 40 above, in particular from the extract of the press article and the social media post from March 2020, that the intervener had publicly expressed her opinion on protective masks before the relevant date and that she had continued to express her views after that date. Accordingly, the Board of Appeal cannot be criticised for taking into account only the evidence relating to the views expressed by the intervener on protective masks subsequent to the relevant date.
105    Thirdly, in so far as the applicant criticises the Board of Appeal for taking the view that it had ‘exploited in a parasitic way’ the intervener’s renown, without taking into account the fact that its success was due to the COVID-19 pandemic and its investments, it is sufficient to note, as EUIPO did, that, while the COVID-19 pandemic may explain the commercial success of protective masks, such an argument is not capable of justifying the choice of the name of the contested mark.
106    Fourthly, as regards the applicant’s argument that consumers did not pay attention to the mark registered on protective masks during the COVID-19 pandemic, it is sufficient to note that, as EUIPO states, apart from the fact that the COVID-19 pandemic was temporary, such a fact was not capable of exempting the applicant from the obligation to register the contested mark in accordance with the provisions of Regulation 2017/1001.
107    Fifthly, so far as concerns the challenge to the probative value of various items of evidence submitted by the intervener, it should be noted, as EUIPO did, that the Board of Appeal based its conclusion that the applicant had acted in bad faith on the overall assessment of the evidence in the documents before the Court, including those submitted by the applicant. That is apparent in particular from paragraph 39 of the contested decision, in which the Board of appeal made
reference to ‘the evidence as a whole’, from paragraphs 44 and 55 of that decision, in which it refers to ‘the evidence on file’ and from paragraph 58 of that decision, which begins with the statement ‘given the chronology of events, the objective circumstances of the case and all the indications considered together’. Accordingly, it should be found that, even if the probative value of certain items of evidence may be disputed, the approach taken by the Board of Appeal is consistent with the case-law cited in paragraph 32 above.
108    In addition, it should be noted that, admittedly, as the applicant claims, in paragraphs 40 and 60 of the contested decision, the Board of Appeal referred to the opinion polls and surveys relied on by the intervener and that, as is apparent from paragraph 40 above, those items of evidence are subsequent to the relevant date. However, it is clear that, in paragraph 40 of the contested decision, the Board of Appeal stated that those opinion polls and surveys proved that the intervener was recognised on the relevant date in so far as renown is acquired, in essence, over time and the surveys from 2022 supported that assessment. In addition, as regards the assessment in paragraph 60 of the contested decision, it should be observed that, in paragraph 59 of that decision, the Board of Appeal stated that it was reasonable to conclude from the circumstances of the case that the applicant had deliberately chosen the contested mark for its huge potential to evoke the intervener. Accordingly, as EUIPO submits, it was possible to infer from the contested decision that the opinion polls and surveys in question in paragraph 60 of that decision were referred to by the Board of Appeal to illustrate the perception of the relevant public.
109    As to the remainder, although the applicant claims that only two items of evidence submitted by the intervener predate the relevant date, it is sufficient to find that, as is apparent from paragraph 40 above, the evidence relied on by the intervener dates from 2005 to 2021 and that, while some items of evidence are subsequent to the relevant date, the majority of them predate it.
110    Sixthly, so far as concerns the applicant’s argument that it was for the intervener to prove that the applicant was acting in bad faith on the relevant date and, given that the standard of proof was insufficient, she was not required to submit other arguments and evidence, it is sufficient to bear in mind that, as is apparent from the case-law cited in paragraph 37 above, 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 it 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. For the reasons set out in paragraphs 43 to 90 above, the Board of Appeal did not make an error of assessment by finding, in essence, that, in the light of the chronology of the events, the objective circumstances of the present case and the indicia assessed together, it was reasonable to think that the applicant had acted in bad faith. Accordingly, the Board of Appeal cannot be criticised for finding, in paragraph 55 of the contested decision, that the applicant had not provided any explanation regarding the objectives and commercial logic pursued by the application for registration of the contested mark.
111    In the light of all of the foregoing, the Board of Appeal was fully entitled to accept the ground for invalidity deriving from Article 59(1)(b) of Regulation 2017/1001.
(ii) The declaration of invalidity of the contested mark in respect of all the goods
112    It is apparent from Article 59(3) of Regulation 2017/1001 that, where the ground for invalidity exists in respect of only some of the goods or services for which the EU trade mark is registered, the trade mark is to be declared invalid as regards those goods or services only.
113    Similarly, it is apparent from the case-law that the ground for invalidity based on the bad faith of the trade mark applicant could lead to a declaration of partial invalidity of the contested mark where it concerned only certain goods or services covered in the application for registration (see, to that effect and by analogy, judgment of 29 January 2020, Sky and Others, C‑371/18, EU:C:2020:45, paragraphs 79 and 80).
114    In that regard, it should be noted that, in the case giving rise to the judgment of 29 January 2020, Sky and Others (C‑371/18, EU:C:2020:45), the bad faith consisted in obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark. The issue before the national court which submitted a request for a preliminary ruling to the Court of Justice concerned a practice of registering marks not only in respect of goods and services which the trade mark applicant intended to use, but also for categories of goods and services for which no such intention existed.
115    In that situation, in which the filing of a mark does not result from any intention to harm a specific third party and concerns purposes which are, in part, lawful and, in part, unlawful, it may be held, in accordance with Article 59(1)(b)
of Regulation 2017/1001, that the ground for invalidity exists only in respect of some of the goods and services for which the EU trade mark has been registered.
116    The situation is different, however, where it is established that the bad faith of the trade mark applicant results from its intention to undermine, in a manner inconsistent with honest practices, the interests of a specific third party. In such a situation, it is not possible to distinguish between the trade mark applicant’s motives by taking the view that the intention to harm the third party concerned was the purpose of filing a mark only in respect of some of the goods it covers (see judgment of 28 April 2021, Choumicha Saveurs, T‑311/20, not published, EU:T:2021:219, paragraph 55 and the case-law cited).
117    In the present case, to the extent that, as is apparent from paragraph 89 above, there are relevant and consistent indicia enabling the Board of Appeal to find that the intention of the applicant, when filing the contested mark, was to create an association in the minds of the relevant public between the name by which the intervener is known and the contested mark, the Board of Appeal was fully entitled to declare the contested mark invalid in respect of all the goods it covered.
118    In the light of all the foregoing considerations, the second plea in law must be rejected as unfounded.
2.      The first plea in law, alleging, in essence, that the Board of Appeal failed to take into account the bad faith on the part of the intervener and the abuse of process
119    In paragraph 62 of the contested decision, the Board of Appeal observed that the applicant’s argument alleging bad faith on the part of the intervener was ineffective and, in any event, unproven. It found that, even if it were established that the intervener had acted in bad faith, that fact would not have been capable of calling into question the finding that the applicant was acting in bad faith at the time of filing the contested mark, in so far as, first, the assessment of whether there was bad faith on the part of the intervener is independent of the assessment of whether there was bad faith on the part of the applicant and, secondly, the ground for invalidity based on bad faith is founded on public interest and cannot depend on the existence of bad faith on the part of the intervener.
120    The applicant criticises, in essence, the Board of Appeal for failing to take into account the bad faith on the part of the intervener when she filed the application for a declaration of invalidity and for not finding that there had been an abuse of process.
121    EUIPO and the intervener dispute the applicant’s arguments.
122    In the first place, as regards the applicant’s claims alleging the failure of the Board of Appeal to take into account the bad faith on the part of the intervener when she filed the application for a declaration of invalidity, it is sufficient to bear in mind that, according to the case-law, the ground for invalidity based on bad faith is founded on public interest and cannot depend on the existence of bad faith on the part of the person applying for the invalidity of the contested mark (see, to that effect, judgment of 25 January 2023, Zielonogórski Klub Żużlowy Sportowa v EUIPO – Falubaz Polska (FALUBAZ), T‑703/21, not published, EU:T:2023:19, paragraph 45 and the case-law cited). Accordingly, the potential bad faith on the part of the intervener, even if it were established, is not capable of demonstrating an error affecting the Board of Appeal’s conclusion that the invalidity of the contested mark was justified on the ground that it was filed in bad faith by the applicant.
123    In the second place, so far as concerns the applicant’s claims alleging abuse of process, it should be borne in mind that the lawfulness of a decision made by the Board of Appeal must be assessed solely on the basis of factual and legal findings contained in the contested decision (see judgment of 14 September 2022, Itinerant Show Room v EUIPO – Save the Duck (ITINERANT), T‑416/21, not published, EU:T:2022:560, paragraph 119 and the case-law cited).
124    However, it does not seem apparent from the contested decision that the Board of Appeal examined the question whether the application for a declaration of invalidity submitted by the intervener constituted an abuse of process.
125    It follows that the applicant’s claims alleging abuse of process must be rejected as ineffective.
126    In any event, it should be borne in mind that, according to the case-law, there is, in EU law, a general legal principle that EU law cannot be relied on for abusive or fraudulent ends. Proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved, and, secondly, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (see judgment of 20 June 2019, Nonnemacher v EUIPO – Ingram (WKU), T‑389/18, not published, EU:T:2019:438, paragraph 20 and the case-law cited).
127    In the present case, it should be observed that the applicant claims, in essence, merely that the application for a declaration of invalidity filed by the intervener constitutes an abuse of process, without however adducing evidence capable of establishing that the latter had filed that application with the fraudulent intention of obtaining an unfair advantage.
128    The applicant’s arguments alleging that the intervener changed her family name and submitted certain items of evidence for the sole purpose of supporting her arguments before EUIPO and its argument that the intervener sought to register two Romanian Dr. Albert word marks after filing the application for registration of the contested mark ‘to create an overlap with [her] earlier rights’ are based only on speculation.
129    In addition, the fact that the intervener initiated several sets of proceedings before EUIPO and national courts, which concerns the normal exercise of exclusive intellectual property rights and the right to a name, cannot lead to the finding that the application for a declaration of invalidity in the present case was filed with the fraudulent intention of obtaining an unfair advantage.
130    It follows that the applicant has not adduced proof of the subjective element, within the meaning of the case-law referred to in paragraph 126 above, of the abuse it alleges against the intervener.
131    Accordingly, the first plea in law must be rejected as ineffective and, in any event, as unfounded.
132    In the light of all the foregoing considerations, the action must be dismissed in its entirety, without there being any need to rule on the admissibility of the applicant’s third head of claim.
Costs
133    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.
134    Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter.
135    By contrast, since EUIPO has requested that the applicant be ordered to pay the costs only in the event that a hearing is convened, EUIPO must be ordered, in the absence of a hearing, to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Techtex SRL to bear its own costs and to pay those incurred by Ms Adina Alberts;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Costeira
Kancheva
Zilgalvis
Delivered in open court in Luxembourg on 14 May 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.