62017TJ0072
JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
7 June 2018 (
*1
)
(European Union trade mark — Revocation proceedings — International registration designating the European Union — Figurative mark Steirisches Kürbiskernöl — Protected geographical indication — Article 15, Article 51(1)(a) and Article 55(1) of Regulation (EC) No 207/2009 (now Article 18, Article 58(1)(a) and Article 62(1) of Regulation (EU) 2017/1001) — Genuine use of the mark — Use as a trade mark)
In Case T‑72/17
Gabriele Schmid, residing in Halbenrain (Austria), represented by B. Kuchar, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Hanf, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the Court, being
Landeskammer für Land- und Forstwirtschaft in Steiermark, established in Graz (Austria), represented by I. Hödl and S. Schoeller, lawyers,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 7 December 2016 (Case R 1768/2015-4), relating to revocation proceedings between Ms Schmid and Landeskammer für Land- und Forstwirtschaft in Steiermark,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the application lodged at the Court Registry on 3 February 2017,
having regard to the response of EUIPO lodged at the Court Registry on 19 April 2017,
having regard to the response of the intervener lodged at the Court Registry on 13 April 2017,
having regard to the observations on the request to stay proceedings lodged at the Court Registry by the intervener and the applicant on 10 and 11 May 2017 respectively,
having regard to the decision of 9 June 2017 rejecting the request to stay proceedings submitted by EUIPO,
further to the hearing on 25 January 2018,
delivers the following
Judgment
Background to the dispute
1
On 15 October 2007, the intervener, Landeskammer für Land- und Forstwirtschaft in Steiermark (Regional Office for Agriculture and Forestry, Styria, Austria), obtained from the European Union Intellectual Property Office (EUIPO) an international registration designating the European Union, under number 900100, of the following figurative mark:
2
The goods covered by the contested mark are in Class 29 of the Nice Agreement on the International Classification of Goods and Services for the Purposes of the Registration of Trade Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Pumpkin seed oil produced according to the specifications underlying [Commission Regulation (EC) No 1263/96 of 1 July 1996 supplementing the Annex to Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) No 2081/92 (OJ 1996 L 163, p. 19)]’.
3
On 18 October 2013, the applicant, Ms Gabriele Schmid, submitted to EUIPO an application for revocation of the contested mark on the ground of non-use, under Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (now Article 58(1)(a) 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)). In that application, the applicant maintained that the contested mark had not been put to genuine use in the European Union within a continuous period of five years for the goods which it covered.
4
On 24 February 2014, the intervener requested that the application for revocation be rejected and, in order to prove genuine use of the contested mark, produced a number of documents (Annexes A.1 to A.66 to the statement submitted by the intervener before the Cancellation Division).
5
By decision of 8 July 2015, the Cancellation Division of EUIPO declared the contested mark to be revoked with effect from 18 October 2013. It considered that the evidence submitted did not sufficiently establish the degree of use of the contested mark during the period which it took into consideration, namely from 18 October 2008 to 17 October 2013. According to the Cancellation Division, the invoices produced related exclusively to advertising material and training fees, which did not prove that the goods had been sold. It observed that, on other annexes, the indication of the date was missing or the contested mark was not recognisable and that genuine use preserving the trade mark rights had therefore not been demonstrated.
6
On 2 September 2015, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Cancellation Division. It produced, together with its pleading setting out the grounds of its appeal before the Board of Appeal of EUIPO, a number of documents designed to prove the extent of the use of the contested mark.
7
By decision of 7 December 2016 (‘the contested decision’), the Fourth Board of Appeal of EUIPO annulled the Cancellation Division’s decision. It found, in essence, that genuine use of the contested mark had been demonstrated.
8
First of all, the Board of Appeal observed that, in order to determine whether the contested mark had been put to genuine use, pursuant to Article 15(1) of Regulation No 207/2009 (now Article 18(1) of Regulation 2017/1001), first, the question whether the designation ‘Steirisches Kürbiskernöl’ was protected as a protected geographical indication (PGI), within the meaning of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1) was irrelevant. Second, the question whether that designation was a descriptive indication or a generic term was irrelevant for the purpose of determining whether there was such use (paragraphs 17 to 19 of the contested decision).
9
Next, as regards evidence of genuine use, the Board of Appeal considered that the Cancellation Division had correctly placed the burden of proof of the use maintaining the rights of the trade mark proprietor and had been right to consider the evidence submitted by both the intervener and the applicant, while taking into account the submissions of both the applicant and her professional representatives (paragraphs 21 to 23 of the contested decision). The Board of Appeal added that, as regards the facts on which both parties were agreed, they no longer needed to be proved by the parties or examined by the Cancellation Division (paragraphs 25 and 26 of the contested decision).
10
Last, in order to determine whether there had been use of the contested mark, within the meaning of Article 15(1) of Regulation No 207/2009, the Board of Appeal found that, since the dispute did not relate to the place, time and intensity of use of the contested mark, the Cancellation Division was not required to examine those elements, but only to consider whether use had taken place in the registered form and whether it constituted use as a trade mark (paragraph 26 of the contested decision).
11
In that regard, first, as regards the form of the use of the contested mark, the Board of Appeal observed that the registered form was distinct from the form used. It emphasised that the form used displayed, in the lower right-hand area, an emblem of the European Union, which referred to the protection, as a PGI and at EU level, of the products concerned (paragraphs 36 and 37 of the contested decision). The Board of Appeal added that, since such an indication was obligatory for the protected goods and since that sign could also be positioned in a way that was independent of the contested mark, it did not in any way alter the distinctive elements of the contested mark (paragraphs 38 and 39 of the contested decision).
12
Second, as regards use as a trade mark, the Board of Appeal considered that there had indeed been such use (paragraph 41 of the contested decision). It considered, to that effect, that the use of the contested mark together with the trade marks of producers of pumpkin seed oil was not relevant. It emphasised that the label was positioned in a different place for each oil producer and that multiple labels were permitted (paragraph 41 of the contested decision). The Board of Appeal stated, in paragraph 42 of the contested decision, that the objective of Article 15 and Article 51(1)(a) of Regulation No 207/2009 was to encourage the proprietor of the trade mark actually to use his trade mark and not to challenge the validity of a registration. However, the Board of Appeal considered that Article 15 of Regulation No 207/2009 did not require the proprietor of the trade mark and the actual manufacturer of the goods to be the same, since the function of the mark was to offer a guarantee that the goods which it covered had been produced under the control of a single undertaking (paragraph 42 of the contested decision). Last, the Board of Appeal added that the question of the role played by the proprietor of the mark, as a person governed by public law, in the context of the marketing of pumpkin seed oil and the effectiveness of the checks which it carried out was not relevant, since a collective mark was not involved (paragraph 42 of the contested decision).
13
The Board of Appeal therefore dismissed in its entirety the application for a declaration of revocation submitted by the applicant and ordered the applicant to pay the costs.
Forms of order sought
14
In the application, the applicant claims that the Court should:
–
alter the contested decision and declare that the intervener’s rights are revoked for all the goods;
–
in the alternative, annul the contested decision and refer the case back to EUIPO;
–
order the intervener to pay all the costs which she has incurred, including those incurred in the proceedings before EUIPO.
15
At the hearing, the applicant sought leave to amend her third head of claim and requested the Court to order EUIPO to pay the costs incurred by the applicant, including those incurred in the proceedings before EUIPO.
16
EUIPO contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs;
–
stay the proceedings pending the decision of the Court of Justice determining Case C‑689/15, W.F. Gözze Frottierweberei and Gözze.
17
At the hearing, EUIPO objected to the applicant’s amendment of her third head of claim.
18
The intervener contends that the Court should:
–
dismiss the action and uphold the contested decision in its entirety;
–
in the event that the Court should grant the form of order sought by the applicant and annul the contested decision, refer the case back to EUIPO for further investigation and the adoption of a new decision;
–
order the applicant to pay the costs which the intervener has incurred, including those incurred in the proceedings before EUIPO.
19
Having regard to the delivery of the judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2017:434), EUIPO’s request for a stay of proceedings was rejected by decision of 9 June 2017.
Law
The evidence adduced for the first time at the hearing
20
At the hearing, the applicant and the intervener produced documents containing evidence which had not been submitted before EUIPO and which was submitted for the first time before the Court. Thus, the applicant lodged a copy of a judgment of the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) of 25 August 2017 in a case involving the same parties as in the present case. The intervener lodged a document depicting the website of Steirisches Kürbiskernöl ggA.
21
However, without there being any need to rule on the probative force of that evidence, it should be stated that it contains new material, as pointed out in paragraph 20 above, and that it was submitted out of time.
22
In the words of Article 85(1) of the Rules of Procedure of the General Court, evidence produced or offered is to be submitted in the first exchange of pleadings. Under Article 85(3) of the Rules of Procedure, the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.
23
However, in the present case the submission of the evidence at the hearing was out of time for the purpose of those provisions. As the applicant and the intervener failed to put forward justification for the late submission of that evidence, it must be rejected as inadmissible, under Article 85(1) and (3) of the Rules of Procedure, especially as that evidence does not appear in the file relating to the proceedings before the Board of Appeal and it is not this Court’s function to re-evaluate the factual circumstances in the light of documents submitted for the first time before it (see judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 21 and the case-law cited).
Substance
24
As a preliminary point, it should be considered that, under her first head of claim, which is formulated as her main claim, the applicant requests the Court to alter the contested decision and to declare the contested mark revoked. By her second head of claim, formulated in the alternative, the applicant seeks annulment of the contested decision.
25
As regards the claim that the Court should alter the decision, it has consistently been held that the exercise of the power to reform decisions must in principle be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).
26
The Court considers that it is thus necessary to review the assessment made by the Board of Appeal and that that entails analysing, in the first place, the pleas in law put forward by the applicant seeking annulment of the contested decision and, in the second place, the claims seeking alteration of the contested decision.
The claim for annulment submitted by the applicant
27
In support of her action, the applicant raises a single plea in law, alleging infringement of Article 15(1), Article 51(1)(a) and Article 55(1) of Regulation No 207/2009 (now Article 62(1) of Regulation 2017/1001).
28
The applicant claims, first, that the contested mark was not used as an indication of origin, that is, as a mark which guarantees to the consumer or end user the identity of origin of a good that enables the goods covered by the contested mark to be distinguished from goods covered by the same mark but coming from a different undertaking; second, that the Board of Appeal did not carry out an examination of the perception of the sign by consumers; third, that the contested mark was used only as an indication of quality and as a generic term; and, fourth, that the use of the contested mark is misleading for the target public.
29
In particular, the applicant maintains that the question whether the contested mark is perceived by the relevant public as an indication of origin that enables the goods covered by the contested mark to be distinguished from the goods covered by the same mark but coming from a different undertaking must be examined in the context of a legal assessment of the genuine use of the mark in question. In this instance, the Board of Appeal did not examine that question sufficiently, since it briefly mentioned use as a trade mark in only two paragraphs of the contested decision, namely in paragraphs 41 and 42, where it asserted that the sign on the bottles of pumpkin seed oil had been put to distinctive use.
30
In addition, the applicant claims that the Board of Appeal was wrong to consider that, in order for there to be use as a mark, it was sufficient that the goods should be produced under the control of a single undertaking. In that regard, the applicant claims that the Board of Appeal did not consider how consumers perceived the contested mark. In the applicant’s submission, the average consumer does not recognise that sign as a trade mark, but purely as an indication of quality and as a generic term, coming under Regulation No 1263/96.
31
Thus, according to the applicant, the Board of Appeal failed to ascertain whether consumers perceived that sign as a mark indicating origin and whether they distinguished it from the goods of other producers, which, in the context of their production, also complied with the requirements of Regulation No 1263/96 and were also entitled to call their goods ‘Steirisches Kürbiskernöl ggA’ (pumpkin seed oil of Styria PGI).
32
In that regard, the applicant emphasises in the application that it follows from the Opinion of Advocate General Wathelet in W.F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2016:916) that a label of quality must necessarily fulfil a trade mark’s function of indicating origin if its proprietor is to seek to make use of the exclusive right conferred on him by Article 9 of Regulation No 207/2009 (now Article 9 of Regulation 2017/1001). Thus, where an individual trade mark is used as a label of quality, it is put to use in order to maintain exclusive rights only where the label of quality is not only an indication of the quality of the good but also and simultaneously an indication of origin (see, to that effect, Opinion of Advocate General Wathelet in W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2016:916, points 46 and 47). At the hearing, the applicant, invited to express her view on the relevance of the judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2017:434), which was delivered during the written phase of the procedure in the present case, considered that that judgment applied to this case.
33
In the present case, the applicant maintains that the Board of Appeal failed to examine whether the actual use of the mark at issue fulfilled the essential function of indicating origin. In her submission, the mark at issue is not linked with an indication of origin, but only with an indication of the quality of the good, ensuring that the nature and the quality of the good are consistent with the requirements of EU law, and is perceived as such by the public.
34
EUIPO and the intervener dispute the applicant’s arguments.
35
EUIPO maintains, first of all, that since the contested mark is registered there is a presumption that it is legally valid, which can be rebutted, pursuant to Article 52(1)(a) of Regulation No 207/2009 (now Article 59(1)(a) of Regulation 2017/1001), only by means of invalidity proceedings. The revocation proceedings initiated in the present case do not serve to examine the legal validity of a registered mark. Accordingly, in the present case, a certain degree of distinctiveness had to be attributed to the contested mark in the examination of the nature of its use.
36
Next, in EUIPO’s submission, the fact that the contested mark was used in the form in which it was registered to designate the goods which it protects indicates, in principle, its use as a trade mark. In fact, it is necessary to distinguish revocation proceedings, which consist in examining the usage of a registered mark, and invalidity proceedings, which are intended to reconsider the distinctiveness (possibly acquired through use) and the registrability of a mark.
37
Last, in the first place, EUIPO contends that, in addition to their essential function of designating the commercial origin of the goods which they cover, individual trade marks may also fulfil a function of quality. More specifically, as regards a PGI, its essential function consists in designating the geographical origin and the qualities attributable to that origin of goods of different producers who are not economically linked to each other. Nor does it allow the consumer of a good covered by a mark of certification to distinguish the goods which it designates from those of other producers. Accordingly, when an individual mark is used exclusively as a PGI, that does not constitute a use of that individual mark as a trade mark.
38
In the second place, EUIPO maintains that the question whether an individual mark was put to genuine use on the relevant market must be based on the perception of the relevant public for the goods in question, taking all the circumstances of the case into account. In that regard, it is necessary to take into account the configuration of the sign and the presentation of the designated goods, including the placing of other signs on the goods. In that regard, EUIPO further submitted at the hearing that the contested mark was predominant on the goods. The perception of the mark by the relevant consumers also depends on the number of undertakings authorised to use the mark and on the type of advertising of the mark. Thus, in the present case, the mark was used as a trade mark, for the reasons stated in paragraph 41 of the contested decision.
39
At the hearing, EUIPO claimed that, following the judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2017:434), the decisive criterion when examining the use of a mark as an individual mark is whether the mark guarantees that the goods come from a single undertaking even though the mark at issue may perform other functions.
40
The intervener submits, first of all, that it is contradictory to assert that there is no distinctive use when the genuine use of the trade mark for the goods concerned is not in issue. In the present case, genuine use was proved both by the evidence which the intervener submitted and by the evidence submitted by third parties, namely the association Gemeinschaft Steirisches Kürbiskernöl.
41
The intervener maintains that the contested mark is both a trade mark and a label of quality. In that regard, it emphasises that associations of producers may also submit an application for registration of their mark. However, their mark is regarded as an indication of the quality of the good certifying that the producer complied with the production specifications.
42
In that respect, as regards Article 15(1) of Regulation No 207/2009, it is settled case-law that there is ‘genuine use’, within the meaning of that provision, of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43; see also judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 37 and the case-law cited).
43
However, the fact that a mark is used in order to create or preserve an outlet for the goods or services for which it is registered and not for the sole purpose of preserving the rights conferred by the mark is not sufficient reason to conclude that there is a ‘genuine use’ within the meaning of Article 15(1) of Regulation No 207/2009. It is equally indispensable that the mark be used in accordance with its essential function (judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraphs 39 and 40).
44
As regards individual marks, the essential function is to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin. For the trade mark to be able to fulfil its essential role in the system of undistorted competition which the Treaty seeks to establish and maintain, it must offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality (see judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 41 and the case-law cited).
45
The requirement, when applying Article 15(1) of Regulation No 207/2009, of use in accordance with the essential function of indicating origin reflects the fact that, while a mark may, admittedly, also be used to fulfil other functions, such as that of guaranteeing the quality of that product or service or that of communication, investment or advertising, it is nevertheless subject to the sanctions provided for in that regulation where it has not been used in accordance with its essential function for an uninterrupted period of five years. In that case, the rights of the proprietor of the mark are declared to be revoked, in accordance with the rules laid down in Article 51(1)(a) of Regulation No 207/2009, unless he is able to invoke proper reasons for failing to make use of the mark in a way that enables it to fulfil its essential function (see judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 42 and the case-law cited).
46
It is by reference to the principles set out above that the Court must examine whether the use of a PGI, which was registered as a figurative individual mark, may be considered to be in accordance with the essential function of the mark.
47
In that regard, as regards a PGI, such as the one at issue, under Article 5(2) of Regulation No 1151/2012 a ‘geographical indication’ identifies a product:
‘(a)
originating in a specific place, region or country;
(b)
whose given quality, reputation or other characteristic is essentially attributable to its geographical origin;
and
(c)
at least one of the production steps of which take place in the defined geographical area.’
48
It follows from the case-law that, where the use of an individual mark, despite certifying the geographical origin and the qualities attributable to that origin of the goods of different producers, does not guarantee to consumers that those goods or services come from a single undertaking under the control of which they are manufactured or supplied and which, consequently, is responsible for the quality of those goods or services, such use is not made in accordance with the function of indicating origin (see, by analogy, judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 45).
49
In fact, there is no use in accordance with the essential function of the individual mark where it is affixed on goods for the sole purpose of identifying the geographical origin and the qualities attributable to that origin of the goods in question and not for that of guaranteeing, in addition, that the goods come from a single undertaking under the control of which they are manufactured and which is responsible for their quality (see, by analogy, judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 46).
50
In the present case, it is apparent from the file submitted to the Court that the intervener, namely the proprietor of the contested mark, is a body governed by public law. It entered into a licensing agreement with the association Gemeinschaft Steirisches Kürbiskernöl. Under that agreement, that association, as exclusive licensee, authorises its members to use the contested mark. Only the members of that association which are bound by a ‘monitoring agreement’ are entitled to use the contested mark. Under Article 2 of the association Gemeinschaft Steirisches Kürbiskernöl’s Articles of Association, the object of that association is to ‘protect its members’ interests connected with the implementation of the protection of appellations d’origine afforded by the European Commission as regards pumpkin seed oil of Styria … and to support its members in the marketing of pumpkin seed oil of Styria in the form of marketing activities and corresponding public relations activities’.
51
It follows that that association, as the intervener explained at the hearing, controls the way in which its members’ products were manufactured. However, the association is external to its members’ production of goods and is not responsible for those goods either (see, by analogy, judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 48). Thus the intervener, having entered into a licensing agreement with that association, is itself external to the production of those goods and is not responsible for them.
52
However, the essential function of the mark should not be confused with the other functions, referred to in paragraph 45 above, that the mark may also fulfil, such as that of guaranteeing the quality of the goods in question (see, to that effect, judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 44) or indicating their geographical origin. As the applicant maintained, and as was confirmed by EUIPO, at the hearing, and as observed in paragraphs 44, 48 and 49 above, an individual mark fulfils its function of indicating origin where its use guarantees to consumers that the goods which it designates come from a single undertaking under the control of which those goods are manufactured and which is responsible for the quality of those goods. In the present case, the use of the contested mark was not made in accordance with such a function of indicating origin.
53
Admittedly, as the intervener and the expert appearing with it stated at the hearing, the association Gemeinschaft Steirisches Kürbiskernöl monitors the manufacture of pumpkin seed oil, in order to ascertain that the product in question has been manufactured according to the given specifications and that compliance with those specifications is monitored by an authority certified by the State. At the hearing, the intervener emphasised that, unlike the circumstances of the case that gave rise to the judgment of 8 June 2017, W.F. Gözze Frottierweberei and Gözze (C‑689/15, EU:C:2017:434), the association carried out a comprehensive check of the manufacturing process, involving all stages of production, which distinguishes the present case from that case, since in that case the association concerned monitored only the raw material, namely cotton fibre. However, it should be made clear that such factors do not call into question the assessments set out in paragraphs 51 and 52 above, since they allow the contested mark to perform the function relating to the quality control of the goods during the manufacturing process, but not the function relating to the identity of the producer.
54
Furthermore, for the purpose of determining whether the contested mark was put to genuine use within the meaning of Article 15(1) of Regulation No 207/2009 it is irrelevant whether the person using the mark is governed by public law or by private law (see, to that effect, judgment of 9 December 2008, Verein Radetzky-Orden, C‑442/07, EU:C:2008:696, paragraphs 17 and 24). In addition, genuine use may be made both by the proprietor of the mark and by a third party authorised to use the mark (see, to that effect, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37). However, as was observed in paragraph 44 above, the use of the contested individual mark must guarantee that all the goods or services which it designates were manufactured or supplied under the control of a single undertaking which is responsible for their quality, which is not the case here.
55
It follows that the Board of Appeal erred in law when it considered, in paragraph 42 of the contested decision, first, that it was not required under Article 15(1) of Regulation No 207/2009 that the end consumer be able to deduce from the use of the sign in question the identity of the manufacturer of the contested mark and, second, that it was sufficient that the proprietor of the mark carry out a check in order to ensure that all the goods bearing that mark were manufactured under the control of a single undertaking.
56
In that regard, it follows from the reproductions of the bottles of pumpkin seed oil and the advertising material annexed to the applicant’s submissions before the Cancellation Division of EUIPO, which are in Annexes A.1 to A.66 of those submissions, and from the explanations provided at the hearing before the Court, that the contested mark does not in itself contain any reference to a specific producer or to the proprietor of the mark and that all that can be indicated is the geographical origin and the qualities of the product in question. Accordingly, it must be considered that the use of the contested mark does not allow the goods of an undertaking which are covered by that mark to be distinguished from the goods which are covered by that mark but which come from other undertakings.
57
Such an assessment is not called into question by the fact that the members of the association Gemeinschaft Steirisches Kürbiskernöl are required to affix labels with inspection numbers to the bottles of pumpkin seed oil. In that regard, the intervener explained in detail at the hearing the system of inspection numbers with the assistance of which a consumer may, on the association’s website, ascertain the details relating to the product in question, such as its commercial origin, the date on which the seeds were harvested and the size of the bottle. Thus, relying on the judgment of 22 September 2011, Interflora and Interflora British Unit (C‑323/09, EU:C:2011:604), the intervener maintains that a reasonably well-informed and reasonably observant consumer is capable of ascertaining that the contested mark is used exclusively by the members of the association.
58
However, apart from the fact that that evidence has been declared inadmissible (see paragraph 23 above), it cannot undermine the finding that the use of the contested mark does not guarantee that the goods which it designates come from a single undertaking under the control of which those goods are manufactured and which is responsible for the quality of the goods. In fact, the labelling, presented at the hearing, affixed to the necks of the bottles, is additional to the name of the producer clearly indicated on the main part of the bottle.
59
In the light of the foregoing considerations, the applicant’s claim that the Board of Appeal infringed Article 15(1) of Regulation No 207/2009 is well founded.
60
As the applicant’s single plea is well founded, the contested decision must be annulled.
The applicant’s application for alteration of the contested decision
61
As regards the head of claim whereby the applicant requests the Court to alter the contested decision and declare that the contested mark is revoked, it must be understood to mean that the applicant requests the Court to adopt the decision which in her view EUIPO ought to have taken, namely a decision finding that the conditions for declaring that the mark applied for was revoked were fulfilled in this instance. The applicant thus seeks alteration of the contested decision, as provided for in Article 65(3) of Regulation No 207/2009 (now Article 72(3) of Regulation 2017/1001).
62
In that regard, it must be borne in mind that the power of the General Court, under Article 65(3) of Regulation No 207/2009, to alter decisions does not have the effect of conferring on it the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. As pointed out in paragraph 25 above, exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).
63
In the present case, it must be found that the conditions on which the General Court may exercise its power to alter decisions are not fulfilled.
64
In fact, it should be observed that the applicant sets out, in her application, the grounds on which she maintains that Annexes A.1 to A.74 produced by the intervener before EUIPO do not establish that the contested mark was put to genuine use. The intervener seems to request the Court to take into account, for the purpose of dismissing the action, both Annexes A.1 to A.66 produced before the Cancellation Division and Annexes A.67 to A.74 which it had produced before the Board of Appeal in order to demonstrate such use of the contested mark.
65
It follows from paragraph 15 of the contested decision that, in order to establish that the contested mark had been put to genuine use, the Board of Appeal relied solely on the annexes produced before the Cancellation Division, namely Annexes A.1 to A.66. Conversely, it follows from paragraph 16 of the contested decision that the Board of Appeal did not consider it necessary to examine the additional documents produced by the intervener as Annexes A.67 to A.74.
66
However, it cannot be precluded that the evidence in Annexes A.67 to A.74, if the Board of Appeal should consider it admissible, might prove useful when considering whether the contested mark was put to genuine use. As the Board of Appeal did not examine all the evidence submitted during the administrative procedure, it is not for the General Court to assess it for the first time and, consequently, to grant the request that it alter the contested decision (see, to that effect, judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).
67
In the light of the foregoing, the applicant’s application for alteration of the decision must be rejected.
Costs
68
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.
69
In the application, the applicant claimed that the intervener should be ordered to pay the costs. At the hearing, the applicant requested the Court to order EUIPO, instead of the intervener, to pay the costs. EUIPO disputed that request.
70
In that regard, it should be borne in mind that, according to settled case-law, the fact that the successful party did not ask that EUIPO should be ordered to pay the costs until the hearing does not debar the Court from awarding them (see judgments of 12 September 2007, Consorzio per la tutela del formaggio Grana Padano v OHIM — Biraghi (GRANA BIRAGHI), T‑291/03, EU:T:2007:255, paragraph 92 and the case-law cited, and of 7 May 2015, Cosmowell v OHIM — Haw Par (GELENKGOLD), T‑599/13, EU:T:2015:262, paragraph 86 and the case-law cited).
71
As EUIPO has been essentially unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by the applicant at the hearing. In application of Article 138(3) of the Rules of Procedure, the intervener should be ordered to bear its own costs.
72
Furthermore, in the form of order which she put forward at the hearing, the applicant claimed that EUIPO should be ordered to pay the costs which she incurred before that office.
73
In that regard, it will be for the Board of Appeal to rule, in the light of the present judgment, on the costs relating to those proceedings (see, to that effect, judgment of 5 December 2012, Consorzio vino Chianti Classico v OHIM — FFR (F.F.R.), T‑143/11, not published, EU:T:2012:645, paragraph 74 and the case-law cited).
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.
Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 December 2016 (Case R 1768/2015-4);
2.
Dismisses the application as to the remainder;
3.
Orders EUIPO, in addition to bearing its own costs, to pay those incurred by Ms Gabriele Schmid;
4.
Orders Landeskammer für Land- und Forstwirtschaft in Steiermark to bear its own costs.
Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 7 June 2018.
[Signatures]
(
*1
)	Language of the case: German.