JUDGMENT OF THE GENERAL COURT (Third Chamber)
26 April 2023 (*)
(EU trade mark – Revocation proceedings – EU word mark MOULDPRO – Genuine use of the mark – Nature of use – Use in connection with the goods in respect of which the mark is registered – Article 58(1)(a) of Regulation (EU) 2017/1001 – Legitimate expectations)
In Case T‑794/21,
Wenz Kunststoff GmbH & Co. KG, established in Lüdenscheid (Germany), represented by J. Bühling and D. Graetsch, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Mouldpro ApS, established in Ballerup (Denmark), represented by W. Rebernik, lawyer,
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, G. Steinfatt and D. Kukovec (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 25 January 2023,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Wenz Kunststoff GmbH & Co. KG, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 October 2021 (Case R 646/2020-2) (‘the contested decision’).
Background to the dispute
2        On 6 June 2011, the applicant filed an application for registration of an EU trade mark with EUIPO pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)). Registration as a mark was sought for the word sign MOULDPRO.
3        The trade mark application covered goods in Classes 7 and 17 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, corresponding, for each of those classes, to the following description:
–        Class 7: ‘Rapid-release couplings for hoses, hose connection couplings’;
–        Class 17: ‘Hose couplings of plastic (included in class 17), hoses’.
4        On 14 June 2011, EUIPO requested that the applicant reclassify the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ which were in Class 7 in Class 17.
5        On 17 June 2011, the applicant filed a request for reclassification to that effect.
6        The trade mark application was published in Community Trade Marks Bulletin
No 142/2011 of 29 July 2011, and the mark was registered on 7 November 2011 in respect of goods in Class 17 corresponding to the following description: ‘Hose couplings of plastic (included in class 17), hoses, rapid-release couplings for hoses, hose connection couplings’.
7        On 30 January 2018, the intervener, Mouldpro ApS, filed with EUIPO an application for revocation of that mark, pursuant to Article 58(1)(a) of Regulation 2017/1001, on the ground that that mark had not been put to genuine use in the European Union within a continuous period of five years in connection with all the goods in respect of which it had been registered, as set out in paragraph 6 above.
8        By decision of 30 March 2020, the Cancellation Division upheld the application for revocation and declared the contested mark invalid in respect of all the goods at issue, on the basis of Article 58(1)(a) of Regulation 2017/1001.
9        On 2 April 2020, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division.
10      By the contested decision, the Board of Appeal dismissed the appeal, finding that the applicant had not proved genuine use of the contested mark in connection with the goods at issue, since that mark did not cover metal goods. First, the Board of Appeal found that part of the evidence submitted by the applicant showed only some use in relation to couplings/fittings for hoses which were made solely of metal. Secondly, it found that, although some of the evidence related to non-metallic hoses, it did not, however, give any indication of the extent of that use.
Forms of order sought
11      The applicant claims, in essence, that the Court should:
–        annul the contested decision and reject the application for revocation;
–        in the alternative, reject the application for revocation in respect of the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ in Class 17;
–        order EUIPO to pay the costs, including those incurred before the Board of Appeal.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
13      The intervener contends that the Court should:
–        uphold the contested decision;
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred before the Board of Appeal.
Law
14      It must be stated at the outset that, by its first head of claim, the intervener requests that the Court uphold the contested decision and, by its second head of claim, it contends that the action should be dismissed. However, since ‘uphold the contested decision’ is tantamount to dismissing the action, the intervener’s first two heads of claim must be regarded as seeking solely the dismissal of the action (see judgment of 15 October 2020, Body Attack Sports Nutrition v EUIPO – Sakkari (SAKKATTACK), T‑851/19, not published, EU:T:2020:485, paragraph 18 and the case-law cited).
15      In support of its action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, according to which the rights of the proprietor of the EU trade mark are to be declared to be revoked 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 has been registered, and there are no proper reasons for non-use.
16      That plea is divided, in essence, into three parts. The first part alleges that the Board of Appeal misinterpreted the list of goods in Class 17 in respect of which the contested mark had been registered. In the context of the second part, the applicant claims that the Board of Appeal did not, for the purposes of its analysis of the scope of protection of the contested mark, sufficiently take into account the initial application for registration of the contested mark and the circumstances relating to the reclassification of the goods, on the one hand, and the principle of the protection of its legitimate expectations, on the other hand. The third part alleges that the Board of Appeal made an error of assessment in that it found that there was no proof of genuine use of the contested mark in connection with the goods in respect of which it had been registered.
The first part, alleging misinterpretation of the list of goods in Class 17
17      In the context of the first part of the single plea, the applicant submits that the Board of Appeal misinterpreted the list of goods in Class 17 in respect of which the contested mark had been registered as meaning that, because they belonged to that class, none of those goods could be made of metallic materials. In particular, according to the applicant, the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ covered by the registration of the contested mark are characterised by their function and not by the material of which they are made, a point which, it submits, cannot be called into question by their classification in Class 17. The applicant submits those goods could thus be made of various materials, including metallic materials.
18      EUIPO and the intervener dispute the applicant’s arguments.
19      In paragraph 42 of the contested decision, the Board of Appeal found in essence that, since all the goods in respect of which the contested mark had been registered, including the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’, were in Class 17, they did not include goods made of metallic materials, as the latter had to be classified, in principle, in Class 6.
20      In the first place, given that the applicant disputes the inferences which the Board of Appeal drew from the classification of the goods at issue, it is necessary to rule on the role and importance of the classification of those goods in a particular class of the Nice Classification.
21      It is true that, as was pointed out in paragraph 36 of the contested decision, the descriptions ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ are, in a purely literal sense, rather broad and could include a large variety of those goods, irrespective of their characteristics and, in particular, of the material of which they consist.
22      However, as is apparent from the case-law, the registration of the contested mark must be understood in the light of the Nice Classification and, in particular in the present case, of the ninth edition thereof, which was in force at the time when the application for registration of that mark was filed and at the time when the request for reclassification of the goods was made (see, to that effect, judgment of 24 March 2021, Novomatic v EUIPO – adp Gauselmann (Power Stars), T‑588/19, not published, EU:T:2021:157, paragraph 41).
23      While it is true that, as submitted by the applicant, the Nice Classification is purely administrative (see, to that effect, judgment of 19 June 2018, Erwin Müller v EUIPO – Novus Tablet Technology Finland (NOVUS), T‑89/17, not published, EU:T:2018:353, paragraph 32), reference should, however, be made to it in order to determine, where necessary, the range or the meaning of the goods in respect of which a mark has been registered (judgment of 10 September 2014, DTM Ricambi v OHIM – STAR (STAR), T‑199/13, not published, EU:T:2014:761, paragraph 35). In particular, where the description of the goods for which a mark is registered is so general that it may cover very different goods, it is possible to take into account, for the purposes of interpretation or as a precise indication of the designation of the goods, the classes in that classification that the trade mark applicant has chosen (see judgment of 6 October 2021, Allergan Holdings France v EUIPO – Dermavita Company (JUVEDERM), T‑397/20, not published, EU:T:2021:653, paragraph 35 and the case-law cited).
24      In that regard, it must be borne in mind that Article 1(2) of the Nice Agreement provides that ‘the [Nice] Classification consists of[, first,] a list of classes, together with, as the case may be, explanatory notes [and, secondly,] an alphabetical list of goods and services … with an indication of the class into which each of the goods or services falls’. It must be pointed out that each class is designated by one or more general descriptions, which, according to the Guidance for the User of the Nice Classification, are called ‘class headings’ and indicate in a general manner the fields to which the goods and services in the class concerned in principle belong.
25      It is also apparent from the case-law that the goods covered by the contested mark must be interpreted from a systematic point of view, having regard to the logic and the system inherent in the Nice Classification, while taking into account the abovementioned descriptions and explanatory notes, which are relevant in determining the nature and purpose of the goods in question (see, to that effect, judgments of 10 September 2014, STAR, T‑199/13, not published, EU:T:2014:761, paragraph 35, and of 6 October 2021, JUVEDERM, T‑397/20, not published, EU:T:2021:653, paragraph 35 and the case-law cited).
26      Consequently, contrary to what the applicant claims, it follows from the abovementioned case-law that, in order to determine the range and meaning of the goods at issue, the descriptions of which may cover very different goods, that analysis must not be confined to the literal meaning of those descriptions, but must also take into account the classification of the goods.
27      Furthermore, it is necessary to reject the applicant’s argument that the Board of Appeal misapplied the judgment of 10 September 2014, STAR (T‑199/13, not published, EU:T:2014:761), which has been referred to in paragraphs 23 and 25 above. As EUIPO submits, even though the Court’s findings in the aforementioned judgment were made in the context of the comparison of goods for the purposes of Article 8(1)(b) of Regulation No 207/2009, they remain relevant in the present case, since they concern the general principles for interpreting the description of the goods covered by a mark.
28      Consequently, the Board of Appeal was right in interpreting the meaning of the goods at issue with regard to the class in which they were classified.
29      In the second place, for the purposes of interpreting the goods in question in the light of their classification in Class 17, it is necessary to determine the meaning of the classification of the goods in that class by taking into account its position within the Nice Classification system.
30      In the present case, in paragraphs 37 to 42 of the contested decision, the Board of Appeal took into consideration the fact that the Nice Classification took account of the difference in material of which goods in Class 6 and those in Class 17 consisted. In particular, it found, first, that the goods referred to in Class 17 included only goods made of non-metallic materials. Secondly, it pointed out that metal goods which could not be classified in the other classes according to their function or purpose were classified in Class 6.
31      In that regard, it must be pointed out that, according to the General Remarks to the Nice Classification, goods are in principle classified according to their function or purpose. However, goods which cannot be classified in that way are classified by applying other criteria, such as the material of which they consist.
32      As regards Class 6, it is apparent from its heading as specified by the ninth edition of the Nice Classification that that class includes ‘common metals and their alloys; metal building materials; transportable buildings of metal; materials of metal for railway tracks; non-electric cables and wires of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal not included in other classes; ores’. Its explanatory note states, inter alia, that that class ‘includes mainly unwrought and partly wrought common metals as well as simple products made of them’.
33      As regards Class 17, its heading states that that class groups together ‘rubber, gutta-percha, gum, asbestos, mica and goods made from these materials and not included in other classes; plastics in extruded form for use in manufacture; packing, stopping and insulating materials; flexible pipes, not of metal’. Its explanatory note provides, inter alia, that that class ‘includes mainly electrical, thermal and acoustic insulating materials and plastics, being for use in manufacture in the form of sheets, blocks and rods’.
34      It is therefore apparent from paragraphs 32 and 33 above that Classes 6 and 17 are among the classes which include unworked or semi-worked materials and finished products which are not included in other classes and are thus classified according to the materials of which they are made. In particular, Class 6 includes metallic materials and goods made of those materials, whereas Class 17 contains certain materials other than metals and goods made of such materials.
35      Consequently, it must be held that, contrary to what the applicant claims, the fact that the goods belong to Class 17 means that they are classified in that class on account of the material of which they are made. They are therefore deemed to be made of the non-metallic materials which are provided for in the description of that class.
36      In the light of the foregoing, it must be held that the Board of Appeal was right in finding that the scope of protection of the contested mark with regard to the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ was, on account of their belonging to Class 17, limited to the goods made of non-metallic materials covered by that class.
37      That assessment cannot be called into question by the applicant’s other arguments.
38      First, the applicant submits that the material of which the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ in Class 17 are made cannot be limited to only one material, because those goods may be made of composite materials or of several different materials. In that regard, it must be pointed out that, according to the General Remarks to the Nice Classification, when a product is classified according to the material of which it is made, and it is made of different materials, the product is in principle classified according to the material which predominates. Consequently, the applicant’s argument cannot succeed.
39      Secondly, the applicant claims that the Board of Appeal did not take into account the difference between the goods in respect of which the contested mark was registered, namely between the ‘hose couplings of plastic (included in class 17)’, with regard to which the material of which they are made is expressly mentioned, on the one hand, and the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’, with regard to which the material of which they are made is not limited, on the other hand. In that regard, it must be pointed out that the Board of Appeal was right in finding that the reference to the material of which the ‘hose couplings of plastic (included in class 17)’ were to be made could not have any impact on the determination of the scope of protection of the contested mark with regard to the other goods in respect of which it is registered. They are separate goods the descriptions of which are, in the list of goods, mentioned individually. The applicant’s argument must therefore be rejected.
40      Consequently, the first part of the single plea must be rejected.
The second part, relating to the circumstances that surrounded the registration procedure in respect of the contested mark and to the principle of the protection of the applicant’s legitimate expectations
41      In the context of the second part of the single plea, the applicant claims, in essence, that the Board of Appeal did not, for the purposes of its analysis of the scope of protection of the contested mark with regard to ‘rapid-release couplings for hoses’ and ‘hose connection couplings’, sufficiently take into account the initial application for registration of the contested mark and the circumstances relating to the reclassification of the goods, on the one hand, and the principle of the protection of its legitimate expectations, on the other hand.
42      EUIPO and the intervener dispute the applicant’s arguments.
43      In paragraph 31 of the contested decision, the Board of Appeal found, in that regard, that the circumstances which had led to the registration of the contested mark were irrelevant for the purposes of the present revocation proceedings. It stated that a situation in which the extent of the protection conferred by a trade mark depended on circumstances which did not follow from the list of goods for which that mark was registered undermined legal certainty, not only for the trade mark proprietor but also for third-party economic operators.
44      In the first place, as regards the specific circumstances which arose in the course of the registration procedure in respect of the contested mark, the applicant claims that the Board of Appeal did not take into account the fact that, in the initial application for registration of the contested mark, the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ were classified in Class 7. It submits that that showed its intention, which did not change during the registration procedure in respect of the contested mark, of describing those goods according to their function and not by reference to the materials of which they were manufactured.
45      In that regard, it must be borne in mind, first, that, under Article 26(1)(c) of Regulation No 207/2009 (now Article 31(1)(c) of Regulation 2017/1001), which was applicable at the time when the application for registration of the contested mark was filed, the application for registration of that mark is to contain a list of the goods or services in respect of which the registration is requested.
46      Next, under Rule 2(2) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), as applicable at the time when application for registration of the contested mark was filed, the list of goods and services is to be worded in such a way as to indicate clearly the nature of the goods and services and to allow each item to be classified in only one class of the Nice Classification.
47      Lastly, Article 43(1) of Regulation No 207/2009 (now Article 49(1) of Regulation 2017/1001) provides that the trade mark applicant may at any time withdraw his or her application for registration of the trade mark or restrict the list of goods or services contained therein.
48      It follows that it is for the person requesting registration of a sign as an EU trade mark to give, in his or her application, a list of the goods or services in respect of which registration is requested and to provide, for each of those goods or services, a description clearly indicating its nature (see judgment of 6 April 2017, Nanu-Nana Joachim Hoepp v EUIPO – Fink (NANA FINK), T‑39/16, EU:T:2017:263, paragraph 44 and the case-law cited).
49      Furthermore, the goods and services in respect of which an EU trade mark is sought must be identified by the trade mark applicant with sufficient clarity and precision to enable the competent authorities and economic operators, on that basis alone, to determine the extent of the protection conferred by that trade mark (see judgment of 6 April 2017, NANA FINK, T‑39/16, EU:T:2017:263, paragraph 45 and the case-law cited).
50      Consequently, in the present case, as EUIPO submits, the clear and precise specification of the goods in respect of which registration of the contested mark was sought, including their reclassification, was the responsibility of the applicant.
51      In the present case, since the applicant requested the reclassification of the goods in question, it established the list of those goods as it appeared in that request. That list must therefore be regarded as the definitive list of goods in respect of which the applicant sought the registration of the contested mark and in respect of which that mark was subsequently registered.
52      The list of goods given by the applicant in its initial application for registration of the contested mark is therefore irrelevant for the purposes of interpreting the list of goods in respect of which that mark was registered. Consequently, it is necessary to reject the applicant’s argument that the initial application for registration of the contested mark should have been taken into account in so far as it showed its intention of not limiting the materials of which the goods in question could be manufactured.
53      That assessment cannot be called into question by the applicant’s arguments that the reclassification of the goods in question in Class 17 took place solely for formal reasons and could not result in a limitation in the materials of which those goods were manufactured, because it was the result of a unilateral request on the part of EUIPO which did not contain any information or reasoning to that effect.
54      In that regard, it must be pointed out that, by its letter of 14 June 2011, EUIPO informed the applicant that it was requested to reclassify the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ in Class 17 within a period of two months, failing which the application for registration of the contested mark would be rejected. That request was based, first, on Article 28 of Regulation No 207/2009, which lays down the obligation to classify the goods referred to in the application for registration in conformity with the Nice system of classification, and, secondly, on Rule 9 of Regulation No 2868/95, which lays down, inter alia, the formal requirements for filing that application.
55      It is apparent from the content of the abovementioned letter of 14 June 2011 that that letter from EUIPO was merely a provisional objection regarding the application for registration of the contested mark and not a final decision. EUIPO requested that the applicant, in accordance with the procedure laid down by Rule 9 of Regulation No 2868/95, remedy the deficiencies in the classification of the goods referred to in its application for registration, following which the subsequent decision regarding the registration of the mark was to follow. Furthermore, as EUIPO submits, the applicant could have objected to the request for reclassification or proposed another class of goods. It is also for that reason that, contrary to the applicant’s claims, EUIPO’s letter of 14 June 2011 did not have to contain any information regarding the legal remedies against it.
56      Accordingly, although the reclassification of the ‘rapid-release couplings for hoses’ and ‘hose connection couplings’ was initiated by EUIPO, the applicant accepted it, without informing EUIPO of any observation or amendment in that regard. Consequently, since the applicant itself took the decision to go ahead with the reclassification as proposed by EUIPO, it cannot criticise EUIPO for restricting the protection of the contested mark to the goods in Class 17 without its consent.
57      The fact that EUIPO did not provide any additional information in relation to its request for reclassification of the goods in question can likewise not alter the necessary consequences of the applicant’s reclassification.
58      First, since the applicant is itself responsible for the clear and precise identification of the goods in respect of which it filed the application for registration of its mark, it cannot claim not to have been aware of the fact that Class 17 did not include metal goods. It must also be pointed out that, in its letter of 14 June 2011, EUIPO mentioned the link to a website containing information on the classification of the goods.
59      Secondly, EUIPO explained, in its response, that its proposal of reclassifying the goods in question in Class 17 was based on the natural and usual meaning of the goods in the initial application for registration and on the fact that the initial list of goods included ‘hose couplings of plastic’ and ‘hoses’ in Class 17. As EUIPO submits, it was not, moreover, for it to ascertain whether the proposed reclassification corresponded fully to the applicant’s intentions. EUIPO argues that it is not in a position to know the exact nature of the goods for which a mark is actually used or is intended to be used, with the result that it was for the applicant to ensure that the reclassification of the goods in Class 17 made it possible to cover the goods for which the contested mark was intended to be used.
60      Consequently, it must be held that the Board of Appeal was right in not, for the purposes of its analysis, taking into account the initial application for registration of the contested mark and the circumstances relating to the reclassification of the goods in question.
61      In the second place, as regards the applicant’s line of argument relating to the principle of the protection of legitimate expectations, it must be borne in mind that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person with regard to whom an institution has given rise to justified expectations. A person may not plead infringement of that principle unless he or she has been given precise, unconditional and consistent assurances by a competent authority of the European Union (see judgment of 29 July 2019, Red Bull v EUIPO, C‑124/18 P, EU:C:2019:641, paragraph 79 and the case-law cited).
62      In the present case, it must be held that, contrary to what the applicant claims, EUIPO did not, at any time, give the applicant precise, unconditional and consistent assurances that the protection of the contested mark would cover all the goods referred to in the initial application for registration. Likewise, no assurance was provided regarding future and hypothetical revocation proceedings. On the contrary, the fact that EUIPO registered the contested mark in respect of the goods referred to in the request for reclassification gives rise to a legitimate expectation, with regard to the proprietor of that mark and other market participants, that that mark will be protected only in respect of those goods. Consequently, the registration of a trade mark in respect of a specific list of goods can guarantee protection only with regard to that particular list.
63      It must also be stated that, contrary to what the applicant claims, the restriction of the protection of the contested mark solely to the goods for which it was registered following their reclassification cannot be regarded as equivalent to a partial rejection of the initial application for registration. Even though that reclassification was initially proposed by EUIPO, the applicant itself decided to accept it by accordingly referring to the amended list of goods which were to be covered by the contested mark. It cannot therefore be claimed that EUIPO restricted the list of goods protected by the contested mark in any way.
64      In the light of the foregoing, it must be concluded that, in the present case, the applicant cannot usefully rely on the principle of the protection of legitimate expectations.
65      Consequently, it must be held that the arguments put forward by the applicant in the context of the second part of the single plea are unfounded. The second part of the single plea must therefore be rejected.
The third part, alleging that the Board of Appeal made an error of assessment in that it found that there was no proof of genuine use of the contested mark in connection with the goods at issue
66      In the context of the third part of the single plea, the applicant criticises the Board of Appeal for finding that there had been no genuine use of the contested mark in connection with all the goods in respect of which that mark had been registered. According to the applicant, it submitted sufficient evidence which proves use of the contested mark in connection with all the goods in respect of which it was registered.
67      EUIPO and the intervener dispute the applicant’s arguments.
68      In paragraphs 47 to 51 of the contested decision, the Board of Appeal found that the applicant had not proved genuine use of the contested mark in connection with the goods at issue, since that mark did not cover metal goods. The Board of Appeal found, first, that part of the evidence showed some use in relation to couplings/fittings for hoses, but only those made of metal, with the result that it could not prove use of the contested mark in connection with the goods in Class 17 in respect of which it had been registered. Secondly, it found that some of the evidence related to non-metallic hoses, but that that evidence was not sufficient, since it did not give any indication of the extent of the corresponding use.
69      It must be pointed out that the applicant’s claim that the Board of Appeal made an error of assessment in finding that there had been no genuine use of the contested mark is based solely on the argument that it misinterpreted the terms in the list of goods in Class 17 and that it thus erred in finding that any use of the contested mark in connection with goods consisting of metallic materials was insufficient. The applicant does not put forward any other argument which is capable of calling into question the Board of Appeal’s assessments regarding the lack of genuine use of the contested mark.
70      However, as is apparent from the analysis of the first and second parts of the single plea, the applicant’s claim that the list of goods covered by the contested mark was misinterpreted is unfounded. The arguments which the applicant has put forward in the context of the third part, regarding the lack of genuine use of the contested mark, are therefore based on an incorrect premiss and must also be rejected as unfounded.
71      The third part of the single plea must thus be rejected and accordingly the single plea must be rejected in its entirety.
72      Consequently, since the single plea relied on by the applicant in support of its claims must be rejected, the action must be dismissed in its entirety.
Costs
73      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred before the Court, in accordance with the forms of order sought by EUIPO and the intervener.
74      Furthermore, as regards the costs which the intervener incurred before the Board of Appeal, it is sufficient to point out that, since the present judgment is dismissing the action brought against the contested decision, it is the operative part of the contested decision which continues to determine the costs in question (see, to that effect, judgment of 27 January 2021, Turk Hava Yollari v EUIPO – Sky (skylife), T‑382/19, not published, EU:T:2021:45, paragraph 57 and the case-law cited).
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Wenz Kunststoff GmbH & Co. KG to pay the costs.
Schalin
Steinfatt
Kukovec
Delivered in open court in Luxembourg on 26 April 2023.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.