JUDGMENT OF THE GENERAL COURT (Second Chamber)
15 March 2023 (*)
(EU trade mark – Revocation proceedings – EU figurative mark zelmotor – No genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001)
In Case T‑194/22,
Zelmotor sp. z o.o., established in Rzeszów (Poland), represented by M. Rumak, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
B&B Trends, SL,
established in Santa Perpètua de Mogoda (Spain), represented by J. Mora Cortés, lawyer,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Zelmotor sp. z o.o., seeks the partial annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 February 2022 (Case R 927/2021-2) (‘the contested decision’).
Background to the dispute
2        On 27 November 2019, the intervener, B&B Trends, SL, filed an application with EUIPO for revocation of the EU trade mark registered following an application submitted by the applicant on 20 June 2012 for the following figurative sign:
3        The goods and services covered by the contested mark and in respect of which revocation was sought are in Classes 7, 9 and 35 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
–        Class 7: ‘Motors, electric, other than for land vehicles; Electric and electrotechnical apparatus for household purposes; Electrotechnical apparatus for household or kitchen purposes; Electric food blenders; Knives, electric; Shears, electric; Mills for household purposes, other than hand-operated; Mixing machines; Blenders, electric, for household purposes; Slingshots; Churns; Whisks, electric, for household purposes; Electric meat grinders; Food processors, electric; Electric bread slicers; Electric apparatus for shredding vegetables; Machines for grating vegetables; Vegetable shredders; Fruit and vegetable peelers; Electric fruit juice extractors and squeezers; Electric can and tin openers; Dishwashers; Washing machines; Wringers; Ironing machines; Sewing machine; Electric cleaning machines and apparatus; Electric vacuum cleaner; Hoses, bags, suction pipes and other accessories for electric vacuum cleaners, included in Class 7; Electric beaters; Machines and apparatus for wax-polishing, electric; Parquet wax-polishers, electric; Electric carpet shampooing machines; Cleaning appliances utilising steam; Label printers; Labellers [machines]; Filtering machines; Liners and loads for filtering machines; Pulverising apparatus; Machines for drying; Kneading machines; Sharpening machines; Free-standing and built-in kitchen machines, electric; Mechanical parts for electric motors, electric household articles and electric cleaning machines and apparatus; Gas springs for cable reels for vacuum cleaners; Inlet and nozzle filters and damping inserts for vacuum cleaners; Vacuum cleaner filters; Springs for mounting bearings for electric motors; Kitchen mixers; Apparatus for sealing plastic packaging; Parts for the aforesaid goods, included in Class 7’;
–        Class 9: ‘Scales; Calculating and weighing apparatus, equipment and instruments; Computer programs stored in digital form; Peripheral devices (computer -); Electric parts for electric motors, electric household articles and electric cleaning machines and apparatus, included in Class 9; Electric contacts for cable reels for vacuum cleaners; Mechanical vacuum sensors for vacuum cleaners, electric vacuum sensors for vacuum cleaners; Electrical contacts and rings; Interference suppression chokes; Holders (electrical contacts) for carbon brushes for electric motors; Electric plugs (extra equipment for vacuum cleaners); Fuse holders; Small electric apparatus for vacuum cleaners, included in Class 9; Parts for the aforesaid goods, included in Class 9’;
–        Class 35: ‘Bringing together, for others, of a variety of non-food goods, including: electric motors, electric household articles and electric cleaning machines and apparatus, parts for electric motors, electric household articles and electric cleaning machines and apparatus, enabling customers to conveniently view and purchase those goods in specialist shops and/or wholesale outlets, including via the Internet; Organisation of shows, trade fairs and exhibitions for commercial or advertising purposes; Sales promotion for others; Securities brokerage relating to parts for electric motors, electric household articles and electric cleaning machines and apparatus’.
4        The ground relied on in support of the application for revocation was that set out in 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).
5        On 24 March 2021, the Cancellation Division upheld the application, revoking the contested mark in respect of all of the goods and services covered by that mark as from 27 November 2019.
6        On 20 May 2021, the applicant filed a notice of appeal with the Board of Appeal of EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division.
7        By the contested decision, the Second Board of Appeal of EUIPO upheld the appeal in part, namely in so far as concerns ‘stators [parts of machines]; rotors (impellers)’ in Class 7, and dismissed the appeal as to the remainder. In essence, the Board of Appeal found that the evidence adduced by the applicant showed genuine use of the contested mark in connection with ‘stators [parts of machines]’ and ‘rotors (impellers)’ in Class 7, but not in connection with the other goods and services in respect of which the Cancellation Division had revoked the contested mark.
Forms of order sought
8        The applicant claims that the Court should:
–        annul the contested decision in so far as the application for revocation was upheld for the goods and services in Classes 7, 9 and 35, with the exception of ‘stators [parts of machines]; rotors (impellers)’ in Class 7;
–        order EUIPO and the intervener to pay the costs.
9        EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened.
10      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
11      In support of its action, the applicant raises, in essence, a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18 of that regulation.
12      By its single plea, which is divided, in essence, into three parts, the applicant disputes the Board of Appeal’s assessment of the evidence which led it to conclude that the contested mark had not been put to genuine use for some of the goods and services in Classes 7, 9 and 35 in respect of which it had been registered.
13      EUIPO and the intervener dispute the applicant’s arguments.
14      It should be noted that, pursuant to the first subparagraph of Article 18(1) of Regulation 2017/1001 and to Article 58(1)(a) of that regulation, the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for its non-use.
15      In the present case, both the Cancellation Division and the Board of Appeal regarded the period from 27 November 2014 to 26 November 2019 as being the five-year period in respect of which the applicant was required to prove genuine use of the contested mark, which the parties do not dispute.
16      According to Article 58(2) of Regulation 2017/1001, where the grounds for revocation of rights exist in respect of only some of the goods or services for which the EU trade mark is registered, the rights of the proprietor are to be declared to be revoked in respect of those goods or services only.
17      The ratio legis for the requirement that a mark must have been put to genuine use in order to be protected under EU law is that the EUIPO Register cannot be regarded as a strategic and static depository granting an inactive proprietor a legal monopoly for an unlimited period. On the contrary, that register should faithfully reflect what companies actually use on the market to distinguish their goods and services in economic life (see judgment of 7 November 2019, Intas Pharmaceuticals v EUIPO – Laboratorios Indas (INTAS), T‑380/18, EU:T:2019:782, paragraph 50 (not published) and the case-law cited).
18      According to settled case-law, there is genuine use of a trade mark, within the meaning of Article 58(1)(a) of Regulation 2017/1001, 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 (see judgment of 3 July 2019, Viridis Pharmaceutical v EUIPO, C‑668/17 P, EU:C:2019:557, paragraph 38 and the case-law cited). In addition, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see judgment of 4 April 2019, Hesse and Wedl & Hofmann v EUIPO (TESTA ROSSA), T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 29 and the case-law cited).
19      As regards the criteria for assessing genuine use, under Article 10(3) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), which is applicable to revocation proceedings in accordance with Article 19(1) of that regulation, proof of use must relate to the place, time, extent and nature of use of the contested mark.
20      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real in the course of trade, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the products or services protected by the mark, the nature of those products or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 40 and the case-law cited).
21      In addition, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT), T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28).
22      It is in the light of those considerations that it must be assessed whether the Board of Appeal was right to find, in paragraph 96 of the contested decision, that the evidence in the file did not demonstrate genuine use of the contested mark for some of the goods and services in Classes 7, 9 and 35.
The first part of the single plea in law, alleging lack of genuine use in connection with the goods in Class 7
23      The first part is divided, in essence, into three complaints. By the first complaint, the applicant criticises the Board of Appeal for having found that the contested mark had not been put to genuine use in connection with ‘slicers’, as evidenced by two purchase orders and a sale agreement relating to the components necessary for their production. By the second complaint, as regards ‘motors’ and ‘parts thereof intended for household appliances’, the applicant asserts that the Board of Appeal misinterpreted the evidence consisting of a report entitled ‘Design Strategy’ (‘the Design Strategy’). By the third complaint, the applicant claims that the Board of Appeal erred in finding that genuine use had not been proved for ‘electric motors other than for land vehicles’, on the basis of the screenshots of its website.
The first complaint, relating to ‘slicers’
24      The applicant, relying on a sale agreement of 12 September 2019 on transfer of ownership rights of movable assets and rights to produce ‘slicers’, and on two orders of 16 December 2019 for 954 ‘slicers’, claims that it has adduced proof of genuine use of the contested mark for those goods.
25      First of all, as regards the sale agreement of 12 September 2019, which falls within the relevant period, the applicant argues that that agreement relates to the acquisition of the components necessary for the production of ‘slicers’. In the present case, the applicant draws attention to the fact that the acquisition of those components would have made no sense if it had not intended to manufacture those goods, which was taken into consideration, in essence, by the Board of Appeal in paragraph 69 of the contested decision. Next, concerning the two purchase orders of 16 December 2019, which did not fall within the relevant period, the applicant submits that the Board of Appeal was wrong not to take that evidence into account. Lastly, the applicant claims that the relevant period ended barely three weeks before the date of the two orders and that the sale of almost 1 000 ‘slicers’ was necessarily preceded by several months of negotiations, which allows conclusions to be drawn as to the use of the contested mark during the relevant period or the actual intention to use it.
26      EUIPO and the intervener dispute those arguments.
27      It should be borne in mind that the consideration of evidence relating to use made before or after the relevant period is possible, in so far as it makes it possible to confirm or better assess the extent to which the contested mark was used and the actual intentions of the proprietor during that period. However, such evidence can be taken into consideration only if other evidence relating to the relevant period has been produced (see, to that effect, judgment of 30 January 2020, Grupo Textil Brownie v EUIPO – The Guide Association (BROWNIE), T‑598/18, EU:T:2020:22, paragraph 41 and the case-law cited).
28      First, it must be stated that, as the Board of Appeal found, the sale agreement of 12 September 2019 does not demonstrate genuine use of the contested mark during the relevant period. That sale agreement, although falling within the relevant period, concerns the acquisition of ‘certain machines and instrumentation’. However, even if, as the applicant submits, those components are necessary for the production of ‘slicers’, the sale agreement of those components does not demonstrate that, during the relevant period, the applicant used the contested mark for ‘slicers’.
29      Furthermore, even if, as the applicant submits, the sale agreement of 12 September 2019 demonstrates its intention to manufacture ‘slicers’, that agreement does not constitute proof of use of the contested mark for ‘slicers’. It should be borne in mind that, even if it is the proprietor’s intention to make real use of his or her trade mark, if the trade mark is not objectively present on the market in a manner that is effective, consistent over time and stable in terms of the configuration of the sign, with the result that it cannot be perceived by consumers as an indication of the origin of the goods or services in question, then there is no genuine use of the trade mark (see, to that effect, judgment of 4 October 2017, Intesa Sanpaolo v EUIPO – Intesia Group Holding (INTESA), T‑143/16, not published, EU:T:2017:687, paragraph 20 and the case-law cited).
30      In that regard, it should be noted that the applicant has not adduced evidence of the presence on the market of the slicers covered by the contested mark during the relevant period. On the contrary, the sale agreement, corroborated by the other evidence referred to in paragraph 69 of the contested decision and not disputed by the applicant, such as its email of 13 November 2019, suggests that it was only at the preparatory stage and that the production of the ‘slicers’ did not start until the beginning of 2020, that is to say, after the relevant period.
31      Secondly, as regards the purchase orders referred to in paragraph 25 above, it is common ground that those two purchase orders of 16 December 2019 postdate the relevant period. Although the case-law accepts that evidence subsequent to that period may be taken into consideration by the Court in order to establish genuine use during the relevant period, as has been noted in paragraph 27 above, that is subject to the production of other evidence relating to the relevant period. Therefore, where no other relevant evidence has been produced, that evidence cannot be accepted.
32      The two purchase orders are not supported by evidence of use of the contested mark during the relevant period. Thus, notwithstanding their proximity in time to the relevant period, those two purchase orders do not serve to prove use during that period, but suggest, on the contrary, that the applicant marketed ‘slicers’ only after the relevant period. The mere fact that, after that period, the applicant marketed ‘slicers’ cannot prove that the contested mark was used in respect of those goods during the relevant period. In addition, the applicant has not put forward any specific argument capable of calling into question the lack of evidential value of those purchase orders as evidence making it possible to confirm or better assess the extent to which the contested mark was used and the applicant’s actual intentions during that period. On the contrary, the applicant merely argues that the submission of the purchase orders had been preceded by several months of negotiations, which does not prove that the contested mark was put to genuine use during the relevant period.
33      Consequently, the Board of Appeal correctly found that the evidence submitted does not show genuine use of the contested mark concerning ‘slicers’ during the relevant period.
The second complaint, relating to ‘motors’ and ‘parts thereof intended for household appliances’
34      The applicant claims that the Board of Appeal misinterpreted the Design Strategy, devised by an independent Polish company with the precise sales figures for the applicant’s goods. Furthermore, according to the applicant, the reasoning followed by the Board of Appeal is contradictory, since, on the one hand, the Board of Appeal acknowledges the high evidential value of the document, but, on the other hand, it considers that the document is insufficient to demonstrate genuine use of the contested mark for ‘motors’ and ‘parts thereof intended for household appliances’.
35      EUIPO and the intervener dispute those arguments.
36      In that regard, it should be recalled that, in order to assess the evidential value of the documents in the file, it is necessary to have regard to the credibility of the information they contain and, in this respect, to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appeared sound and reliable (judgments of 7 June 2005, Lidl Stiftung v OHIM – REWE-Zentral (Salvita), T‑303/03, EU:T:2005:200, paragraph 42, and of 15 December 2005, BIC v OHIM (Shape of a lighter), T‑262/04, EU:T:2005:463, paragraph 78).
37      First, as regards the evidential value of the Design Strategy, the applicant claims that that document was drafted in the context of an agreement signed with the Polska Agencja Rozwoju Przedsiębiorczości (Polish Agency for Enterprise Development; ‘PARP’), a Polish public institution, with a view to obtaining additional funding. That document consists of a report drawn up by an independent Polish company, containing specific sales figures in respect of individual goods, in order to assess the attractiveness of the applicant’s flagship products. In addition, the applicant observes not only that PARP carefully verifies the data which constitute the basis for a grant, but also that the submission of a report containing unreliable data gives rise to criminal liability on the part of the declarant.
38      In the present case, on the basis of the data submitted by the applicant, it should be noted, as the Board of Appeal correctly found in paragraph 75 of the contested decision, that the Design Strategy cannot, in itself, be as reliable and credible as an official financial audit prepared by a third party or a person independent of the company in question. It is true that the report in question indicates turnover figures for ‘motors’ and ‘parts thereof intended for household appliances’. However, it does not contain any indication concerning the place and date of the sales in question. Moreover, the applicant has not provided any information regarding the way in which that Design Strategy was developed. In addition, the applicant does not in any way respond to the criticisms raised by the Board of Appeal as to the lack of any additional information necessary to clarify how the independent Polish company obtained the sales figures concerning the goods at issue, whether and how those figures have been verified or, more generally, how the document was prepared. Therefore, the Board of Appeal correctly called into question the evidential value of that document on account of the lack of other evidence, concerning in particular the requirements relating to the independence of its author and the reliability of its content, in relation to the applicant’s arguments concerning the specific purpose of the document.
39      That finding is not called into question by the fact that the submission to PARP of a report containing unreliable or false data would be punishable under Article 233 of the Kodeks karny (Polish Criminal Code). In that regard, it should be borne mind that the fact that a statement may entail, in case of a false statement, consequences in criminal law for its author under national law, as is the case for a sworn statement, is not sufficient in itself and is merely an indication which needs to be supported by further evidence (see, to that effect, judgments of 7 June 2005, Salvita, T‑303/03, EU:T:2005:200 paragraph 43, and of 16 December 2008, Deichmann-Schuhe v OHIM – Design for Woman (DEITECH), T‑86/07, not published, EU:T:2008:577, paragraph 50).
40      As EUIPO correctly contends, the sales figures contained in the Design Strategy are not supported by other evidence. In this respect, it must be stated that the additional evidence which could have corroborated the information contained in the Design Strategy, such as invoices, purchase orders or advertisements, is not of a kind which it would have been difficult for the applicant to obtain and to present to the Board of Appeal (see, to that effect, judgment of 7 June 2005, Salvita, T‑303/03, EU:T:2005:200, paragraph 45).
41      Furthermore, contrary to what is argued by the applicant, the Board of Appeal’s assessment, in paragraph 78 of the contested decision, relating to the fact that the Design Strategy cannot prove ‘beyond any reasonable doubt’ the intensity of the use of the contested mark in relation to each of the goods listed therein, is not based, contrary to what the applicant claims, on a ‘vague criterion’, since genuine use of a mark must be assessed, in accordance with the case-law cited in paragraphs 20 and 21 above, on the basis of solid and objective evidence.
42      Lastly, contrary to the applicant’s arguments, in paragraph 93 of the contested decision, the Board of Appeal does not merely list the ‘perfect’ evidence capable of demonstrating genuine use of the contested mark, but by contrast, it refers to additional evidence which could have made it possible to corroborate the information contained in the Design Strategy, as to the extent of use of the contested mark, which is not of such a nature that it would have been difficult for the applicant to obtain.
43      Secondly, as regards the contradiction relied on by the applicant relating to the evidential value of the Design Strategy, it should be noted that, in paragraph 75 of the contested decision, the Board of Appeal found that the fact that the document in question is not a financial audit does not render it unreliable or irrelevant for the purpose of assessing genuine use of the contested mark. In particular, the Board of Appeal observed that it is a document from a Polish company, independent of the applicant, which provides detailed information on the sales volumes of the various goods. However, in paragraph 78 of the contested decision, the Board of Appeal stated that the applicant has not provided any information concerning the methodology according to which that document was drawn up, making it impossible to regard that document as being as objective and independent as a financial audit.
44      Thus, the reasoning followed by the Board of Appeal is not vitiated by contradictions. In accordance with the case-law cited in paragraph 36 above, the Board of Appeal duly took into consideration the Design Strategy. The fact that that document cannot be described as unreliable or irrelevant does not preclude it from having limited evidential value on account of the unclear circumstances in which it was drawn up, as stated in paragraph 38 above.
45      Consequently, the Board of Appeal rightly found that the evidence submitted did not show genuine use of the contested mark concerning ‘motors’ and ‘parts thereof intended for household appliances’ during the relevant period.
The third complaint, relating to ‘electric motors other than for land vehicles’
46      The applicant claims that the Board of Appeal erred in finding that genuine use had not been proven for ‘electric motors other than for land vehicles’ on the basis of screenshots of the applicant’s website.
47      EUIPO and the intervener dispute that argument.
48      In the first place, the applicant argues that the Board of Appeal’s reasoning is contradictory as regards the assessment of the evidence, since, on the one hand, the Board of Appeal observes that it was not in a position to determine for which motors the contested mark had been used and, on the other hand, it states that that same evidence shows that the contested mark was used in respect of vacuum cleaner motors and hedge trimmer engines.
49      In that regard, it should be noted that there is no contradiction in the Board of Appeal’s reasoning. More specifically, the Board of Appeal, in paragraph 88 of the contested decision, did not state that it was impossible to identify all the motors shown on the screenshots, on the contrary, it noted that it was possible to identify vacuum cleaner motors and hedge trimmer engines and not the other motors.
50      In the second place, the applicant claims that the Board of Appeal erred in finding that the screenshots were not sufficient to prove the extent of use of the contested mark. It maintains that the screenshots should have been assessed as additional evidence intended to confirm the information provided in the Design Strategy.
51      In this respect, it must be recalled that the extent or scale of the use to which a mark has been put, depends, in particular, on the commercial volume of the overall use, as well as on the length of the period during which the mark was used and the frequency of use (judgments of 15 July 2015, Deutsche Rockwool Mineralwoll v OHIM – Recticel (λ), T‑215/13, not published, EU:T:2015:518, paragraph 31, and of 23 September 2020, Polfarmex v EUIPO – Kaminski (SYRENA), T‑677/19, not published, EU:T:2020:424, paragraph 45).
52      However, as the Board of Appeal correctly states in paragraph 89 of the contested decision, the abovementioned screenshots cannot, either individually or in combination with the Design Strategy, prove the extent of use of the contested mark for the goods at issue. In the present case, the screenshots show engines with their unit selling prices, which does not corroborate the turnover figures resulting from the sales of the applicant’s engines for 2017 and 2018, referred to in the Design Strategy, either for the vacuum cleaner motors and hedge trimmer engines identified in the screenshots, or, still less, for the unidentifiable motors. Furthermore, it should be noted that there is no evidence relating to the commercial volume of the use of the contested mark, apart from the Design Strategy, referred to in paragraphs 37 to 40 above, even though such evidence could easily have been provided. Moreover, the applicant has not put forward valid reasons which prevented it from submitting such evidence.
53      Consequently, the Board of Appeal correctly found that the evidence produced does not demonstrate genuine use of the contested mark concerning ‘electric motors other than for land vehicles’ during the relevant period.
The second part of the single plea in law, relating to the use of the mark as a company name
54      By the second part, without referring to specific goods, the applicant claims that the Board of Appeal, in paragraph 43 of the contested decision, incorrectly found that the evidence submitted shows that the term ‘zelmotor’ has been used only as a company name and not as a trade mark. In this respect, the applicant submits that the Board of Appeal’s analysis is contrary to the case-law on proof of use of a registered mark which, additionally, constitutes the name of an undertaking or is identical to it.
55      EUIPO and the intervener dispute the applicant’s arguments.
56      In principle, a company name does not, of itself, have the aim of distinguishing goods or services. The purpose of a company name is to identify a company. Accordingly, where the use of a company name is limited to identifying a company, such use cannot be considered as being ‘in relation to goods or services’ (see judgment of 13 April 2011, Alder Capital v OHIM – Gimv Nederland (ALDER CAPITAL), T‑209/09, not published, EU:T:2011:169, paragraph 45 and the case-law cited).
57      However, it has also been accepted in the case-law that there was use ‘in relation to goods or services’ where the sign constituting the company name was used in such a way that a link was established between that sign and the goods marketed or the services provided (judgment of 11 September 2007, Céline, C‑17/06, EU:C:2007:497, paragraph 23). It should be recalled that the fact that a word element is used as the company’s trade name does not therefore preclude its use as a mark to designate goods or services (see judgment of 30 November 2009, Esber v OHIM – Coloris Global Coloring Concept (COLORIS), T‑353/07, not published, EU:T:2009:475, paragraph 38 and the case-law cited).
58      It is in the light of those considerations that it must be assessed whether the Board of Appeal was right in taking the view that some of the evidence submitted by the applicant did not demonstrate use of the contested mark in respect of the categories of goods and services at issue.
59      In that regard, it must be stated that in all the invoices and waybills the term ‘zelmotor’ is used as a header, followed by the legal form of the company, such as ‘spółka z ograniczoną odpowiedzialnością’ or ‘sp. z o.o.’, and preceding the company’s address, without any connection with the applicant’s goods or services. Thus, the Board of Appeal was right to reject that evidence in the assessment of whether the use of the contested mark was genuine.
The third part of the single plea in law, relating to the services of ‘organisation of shows, trade fairs and exhibitions for commercial or advertising purposes’
60      By the third part, the applicant argues that the Board of Appeal did not analyse the use of the contested mark for the services in Class 35, such as the ‘organisation of shows, trade fairs and exhibitions for commercial or advertising purposes’.
61      EUIPO and the intervener dispute the applicant’s arguments.
62      In the present case, it should be noted that the Board of Appeal analysed the issue of genuine use of the contested mark in respect of the services in Class 35 in paragraphs 49 to 56 of the contested decision.
63      As regards genuine use of the contested mark in respect of the services of ‘organisation of shows, trade fairs and exhibitions for commercial or advertising purposes’, it should be noted that the photographs of a trade fair, the ‘ITM trade fair’, which took place from 4 to 7 June 2019, during the relevant period, to which the applicant refers in its application, do not make it possible to call into question the Board of Appeal’s finding. Those photographs do not prove that the applicant was the organiser of the trade fair, but only that it participated in that event in order to present its goods.
64      Consequently, the Board of Appeal was right in finding that the evidence submitted does not show genuine use of the contested mark in connection with the services of ‘organisation of shows, trade fairs and exhibitions for commercial or advertising purposes’ during the relevant period.
65      In the light of all of the foregoing considerations, since the single plea in law relied on by the applicant in support of its claims must be rejected, the action must be dismissed in its entirety.
Costs
66      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.
67      Since EUIPO has requested that the applicant be ordered to pay the costs only in the event that a hearing is convened, it must be ordered, in the absence of a hearing, to bear its own costs.
68      Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the intervener, in accordance with the form of order sought by the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Zelmotor sp. z o.o. to bear its own costs and to pay those incurred by B&B Trends, SL;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Marcoulli
Schwarcz
Tomljenović
Delivered in open court in Luxembourg on 15 March 2023.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.