JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 November 2024 (*)
( EU trade mark – Revocation proceedings – EU figurative mark S SKINS – Genuine use of the mark – Article 58(1)(a) and (2) of Regulation (EU) 2017/1001 )
In Case T‑559/23,
Skins IP Ltd, established in Shirebrook (United Kingdom), represented by S. Malynicz, Barrister-at-Law,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Lobotková and by D. Gája, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Symphony Holdings Ltd, established in Hamilton (Bermuda), represented by G. Barbaut, lawyer,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, U. Öberg (Rapporteur) and P. Zilgalvis, Judges,
Registrar: R. Ūkelytė, administrator,
having regard to the written part of the procedure,
further to the hearing on 10 July 2024,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Skins IP Ltd, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 June 2023 (Case R 1796/2022-2) (‘the contested decision’).
Background to the dispute
2        On 14 February 2008, the intervener, Symphony Holdings Ltd, obtained registration of an EU trade mark in respect of the following figurative sign:
3        The goods and services in respect of which registration was sought are in, inter alia, Classes 10 and 25 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, inter alia, to the following description:
–        Class 10: ‘Compression garments for medical purposes; therapeutic compression garments; stockings for medical purposes; elastic supports, including elastic supports for stabilising injured areas of the body; all the aforementioned being goods in Class 10’;
–        Class 25: ‘Clothing, headgear; including clothing for men, women, children and babies; clothing for sports including football, gymnastics, cycling, golf and skiing; underwear including compression underwear; outerwear, overcoats, leisure clothing, jackets, jumpers, pullovers, sports jerseys, vests, shirts, t-shirts, pants, trousers, shorts; thermal clothing; waterproof clothing; socks, stockings, tights; headbands; padded clothing, including padded clothing for men, women, children and babies; padded clothing for sport’.
4        On 22 August 2019, the applicant filed an application for revocation of the mark referred to in paragraph 2 above in respect of all the goods and services referred to in paragraph 3 above, on the basis of 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), on the ground that that mark had not been put to genuine use in the European Union within a continuous period of five years.
5        By decision of 19 July 2022, the Cancellation Division of EUIPO partially upheld the application for revocation. It revoked the contested mark in respect of certain goods and services, with the exception of those referred to in paragraph 3 above.
6        On 15 September 2022, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division, in so far as the contested mark had not been revoked in respect of the goods referred to in paragraph 3 above.
7        By the contested decision, the Second Board of Appeal dismissed the appeal. It found that most of the evidence produced by the intervener proved genuine use of the contested mark in respect of the goods referred to in paragraph 3 above.
Forms of order sought
8        The applicant claims that the Court should:
–        annul the contested decision;
–        revoke the contested mark in respect of the goods at issue, with the exception of ‘clothing, headgear, namely compression clothing, fitness wear, running wear’ in Class 25;
–        order EUIPO and the intervener to pay the costs.
9        EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The applicant’s second head of claim, in so far as the Court is asked to revoke the contested mark
10      The applicant’s second head of claim asks the Court to make an order for revocation of the contested mark in respect of some of the goods at issue.
11      When exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue declaratory judgments (see, to that effect, order of 9 December 2003, Italy v Commission, C‑224/03, not published, EU:C:2003:658, paragraphs 20 and 21, and judgment of 4 February 2009, Omya v Commission, T‑145/06, EU:T:2009:27, paragraph 23).
12      It follows that the applicant’s second head of claim must be rejected on the ground of lack of jurisdiction.
Substance
13      The applicant puts forward two pleas in law. The first plea alleges infringement of Article 58(1)(a) of Regulation 2017/1001, in that the Board of Appeal incorrectly found that the goods in respect of which genuine use of the contested mark had been proved were goods of a ‘medical’ or ‘therapeutic’ nature in Class 10.
14      The second plea alleges infringement of Article 58(2) of Regulation 2017/1001, in that the Board of Appeal failed to assess whether the goods in respect of which genuine use of the contested mark had been proved constituted independent subcategories within Class 25.
The first plea in law, relating to genuine use of goods in Class 10 which have a medical purpose
15      The applicant argues that it is clear from the eighth edition of the Nice Classification, which was in force at the time when the application for registration of the contested mark was filed, and which must be interpreted in accordance with the General Remarks, Explanatory Notes, class headings and alphabetical list, that goods in Class 10 have a medical function or purpose. A medical function requires that there be an injury or a trauma to the body, a medical intervention, the treatment of a disease, or post-operative surgery assistance.
16      According to the applicant, that does not apply to the goods of the intervener in respect of which genuine use of the contested mark was proved, as compression garments, such as compression socks, tank tops and tights, do not serve a medical purpose. Improving sporting performance, aiding recovery and preventing injury are not medical or therapeutic purposes. Thus, it argues, none of the evidence furnished by the intervener establishes genuine use of that mark in connection with the goods at issue in Class 10, which have a medical purpose, and the Board of Appeal should therefore have revoked that mark for all those goods, in accordance with Article 58(1)(a) of Regulation 2017/1001.
17      EUIPO and the intervener dispute the applicant’s arguments.
18      Article 58(1)(a) of Regulation 2017/1001 provides that 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 non-use.
19      According to the case-law, a trade mark is put to ‘genuine use’ where it is used in accordance with its essential function, which is to guarantee to consumers the origin of the goods or services, but also its other functions, such as, in particular, that of guaranteeing the quality of those goods or services, or those of communication, investment or advertising (see, to that effect, judgments of 25 July 2018, Mitsubishi Shoji Kaisha and Mitsubishi Caterpillar Forklift Europe, C‑129/17, EU:C:2018:594, paragraph 34, and of 25 January 2024, Audi (Mounting element for an emblem on a radiator grille), C‑334/22, EU:C:2024:76, paragraph 42 and the case-law cited).
20      Similarly, there is ‘genuine use’ of a trade mark where the mark is used in accordance with its essential function, in order to create or preserve an outlet for the goods and services for which it is registered (see, to that effect, judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43, and of 12 December 2019, Der Grüne Punkt v EUIPO, C‑143/19 P, EU:C:2019:1076, paragraph 55).
21      The rationale for the requirement that a mark must have been put to genuine use in order to be protected under EU law is that EUIPO’s 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 must faithfully reflect what companies actually use on the market to distinguish their goods and services in economic life (judgment of 6 July 2022, Les Éditions P. Amaury v EUIPO – Golden Balls (BALLON D’OR), T‑478/21, not published, EU:T:2022:419, paragraph 21 and the case-law cited).
22      Genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned. It is necessary to carry out an overall assessment which takes into account all the relevant factors of the particular case and entails a degree of interdependence between the factors taken into account (judgment of 1 June 2022, Worldwide Machinery v EUIPO – Scaip (SUPERIOR MANUFACTURING), T‑316/21, not published, EU:T:2022:310, paragraph 19 and the case-law cited).
23      In the present case, as a preliminary point, the Court notes that the applicant does not call into question the Board of Appeal’s findings according to which the evidence submitted by the intervener meets the requirements relating to the time, place and extent of use of the intervener’s goods presented therein. As the applicant also stated at the hearing, it does not, moreover, dispute use in relation to ‘compression garments’.
24      The only question that is subject to the Court’s assessment in the present dispute is whether the evidence thus adduced by the intervener can be regarded as capable of proving genuine use of goods in Class 10 which have a ‘medical’ or ‘therapeutic’ purpose.
25      In that regard, the Board of Appeal considered that the intervener had produced numerous items of evidence – such as press releases, articles, product reviews, photos of athletes, purchase orders, archived screenshots from websites, catalogues and invoices – which proved genuine use of the contested mark in connection with the goods at issue in Class 10, in particular compression garments, such as socks, tights, shorts and tops, throughout the relevant period and in many EU Member States.
26      In order to prove genuine use of the contested mark in connection with the goods at issue in Class 10, the intervener, in the course of the administrative proceedings before EUIPO, produced, inter alia, the following documents:
–        a review referring to the use of ‘skins dynamic’ long tights, in which it is stated that they hold everything in place and allow sporting activities to be carried out with more confidence, particularly in the case of an old injury, and that, when used with ‘Skins RY400’ recovery tights, muscle pain the following day is vastly reduced. Other reviews concerning the tights and compression garments in general refer to the muscle support and oxygenation provided, the aiding of recovery and the reduction of muscle vibration, lactic acid and muscle fatigue;
–        articles providing information on the partnership between the contested mark and a football club and rugby brands, in which it is stated that compression and recovery garments make it possible, respectively, to improve sporting performance and reduce soft tissue damage, and to enhance the ability quickly to return to maximum and regular levels of physical performance;
–        articles providing information on the ability of the compression garments bearing the contested mark, such as tights, shorts and various types of tops, to accelerate blood flow and increase oxygen supply to the muscles, thereby improving stamina, power, speed and recovery, as well as protecting the hips and muscles from injury or friction and reducing lactic acid;
–        a review concerning compression socks or sleeves bearing the contested mark, in which it is stated that those goods are therapeutic devices, due to their role in improving oxygen supply and reducing muscle vibration and fatigue, as well as the benefits provided by compression garments in the treatment of shin splints, calf cramps, calf strains and Achilles tendonitis, relief for injuries during recovery and prevention of a new injury;
–        an article referring to the excellent medical and performance-based benefits of compression garments bearing the contested mark, the decrease in recovery time and the healing of tears, as well as the improved blood circulation and oxygenation of muscles fatigued during training which those garments provide.
27      It is clear from the evidence submitted by the intervener that the latter uses the contested mark for various types of compression garments, such as tights, shorts, socks, tops and bras, which are intended to provide support, promote blood circulation and exert pressure in order to stabilise, compress or support certain areas of the body or reduce swelling. The contested mark has therefore been put to genuine use in the European Union in connection with goods intended for use as therapeutic or medical devices, as a preventive measure or after an injury as part of the recovery process.
28      In that regard, the Court recalls that the classification of goods and services under the Nice Agreement is, in essence, designed to reflect the needs of the market and not to impose an artificial segmentation of the goods. Consequently, the class headings contain ‘general indications’ relating to the sector within which the goods or services ‘in principle’ fall. Likewise, the classification of goods and services under the Nice Agreement is intended to serve exclusively administrative purposes. The purpose of that classification is to facilitate the drafting and processing of trade mark applications by suggesting certain classes and categories of goods and services. Moreover, the Nice Classification cannot determine, in itself, the nature and characteristics of the goods at issue (see judgment of 11 January 2023, Hecht Pharma v EUIPO – Gufic BioSciences (Gufic), T‑346/21, EU:T:2023:2, paragraph 94 and the case-law cited).
29      The scope of protection under trade mark law is therefore not determined by a term’s inclusion in a taxonomic information structure but by the usual meaning of that term. The purpose of the Nice Classification is to facilitate the drafting and processing of trade mark applications by suggesting certain classes and categories of goods and services. By contrast, the headings of the classes do not constitute a system in which goods or services included in one class or category are precluded from also forming part of another class or category (judgment of 21 October 2014, Szajner v OHIM – Forge de Laguiole (LAGUIOLE), T‑453/11, EU:T:2014:901, paragraph 88; see also judgment of 7 November 2019, Intas Pharmaceuticals v EUIPO – Laboratorios Indas (INTAS), T‑380/18, EU:T:2019:782, paragraph 96 (not published and the case-law cited)).
30      Thus, the scope of protection of an EU trade mark is always defined by the natural and usual meaning of the terms chosen (see, to that effect, judgment of 10 December 2015, Sony Computer Entertainment Europe v OHIM – Marpefa (Vieta), T‑690/14, not published, EU:T:2015:950, paragraph 66).
31      Furthermore, it is necessary to interpret the list of goods and services in respect of which an earlier mark is registered and with regard to which proof of genuine use has been requested, in order to ascertain the extent of the protection of that mark and to settle the issue of its genuine use, in the most coherent manner, in the light not only of its literal meaning and its grammatical construction, but also, if there is a risk of an absurd result, of its context and the actual intention of the mark’s proprietor as regards its scope (see, to that effect, judgment of 17 October 2019, Alliance Pharmaceuticals v EUIPO – AxiCorp (AXICORP ALLIANCE), T‑279/18, EU:T:2019:752, paragraph 50).
32      With regard to the purpose of the goods at issue in Class 10, the Court notes that it is apparent from the heading of that class, in its eighth edition of 2002, in force on the date of the application for registration of the contested mark, that that class covers ‘surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture materials’.
33      According to the Explanatory Note to the eighth edition of the Nice Classification, Class 10 includes mainly medical apparatus, instruments and articles and, in particular, special furniture for medical use, hygienic rubber articles and supportive bandages. In addition, the alphabetical list of the said class in that edition includes ‘bandages for joints [anatomical] / supportive bandages’ (basic number 100020), ‘bandages [elastic]’ (basic number 100022), ‘elastic stockings for surgical purposes / elastic stockings [surgery]’ (basic number 100165), ‘stockings for varices’ (basic number 100166), as well as ‘abdominal belts’ (basic number 100001), ‘orthopaedic [orthopedic] belts / orthopaedic belts / orthopedic belts’ (basic number 100047), ‘gloves for massage’ (basic number 100092), ‘condoms’ (basic number 100128), and ‘dummies [teats] for babies / babies’ pacifiers [teats] / pacifiers for babies / teats’ (basic number 100145).
34      In the light of the heading, the Explanatory Note and the alphabetical list of Class 10, in the eighth edition of the Nice Classification, the Court considers that that class does not exclude goods the purpose of which is to avoid injury or to improve sporting performance, and does not draw any distinction between those goods and goods which have an exclusively medical function or purpose requiring there to be treatment of an injury, illness or trauma to the body.
35      Such an interpretation is reinforced by the usual meaning of the term ‘medical’ or ‘orthopaedic’ found in dictionaries such as the Collins English Dictionary or the Merriam-Webster Dictionary.
36      Thus, as EUIPO correctly pointed out, the Collins English Dictionary defines the term ‘medical’ as ‘relating to illness and injuries and to their treatment or prevention’. The same is true of the Merriam-Webster Dictionary’s definition of the term ‘medicine’, defined as ‘the science and art dealing with the maintenance of health and the prevention, alleviation, or cure of disease’.
37      As for the term ‘orthopaedic’, it is defined by the Collins English Dictionary as relating to ‘problems affecting people’s joints and spines’ and by the Merriam-Webster Dictionary as meaning ‘marked by or affected with a skeletal deformity, disorder, or injury’ or as being ‘of, relating to, or employed in orthopedics’, the latter term being defined as ‘a branch of medicine concerned with the correction or prevention of deformities, disorders, or injuries of the skeleton and associated structures (such as tendons and ligaments)’.
38      Accordingly, the terms ‘medical’ and ‘orthopaedic’ cannot be understood as referring exclusively to the curing or healing of an existing disease, injury or trauma to the body. They are also to be understood as referring to the prevention of disease or illness and of injury and the improvement of health in general.
39      The same is true of the usual meaning of the term ‘therapeutic’ which, according to the Collins English Dictionary, relates to the treatment of an illness or medical condition or to treatment designed to improve a person’s health, rather than to prevent an illness. According to the Merriam-Webster Dictionary, that term means of or relating to the treatment of disease or disorders by remedial agents or methods, having a beneficial effect on the body or mind or producing a useful or favourable result or effect.
40      In the light of the foregoing, the applicant is also incorrect in arguing that improving performance and aiding recovery do not constitute medical purposes.
41      It follows that ‘compression garments for medical purposes’ or ‘therapeutic compression garments’ and ‘stockings for medical purposes’, in Class 10, must be understood to include, inter alia, garments and stockings used to prevent, diagnose or treat a disease or illness or to improve health in general.
42      Moreover, in the current version of the Nice Classification, Class 10 also includes ‘therapeutic and assistive devices adapted for persons with disabilities; massage apparatus; apparatus, devices and articles for nursing infants; sexual activity apparatus, devices and articles’. According to the Explanatory Note, it includes mainly surgical, medical, dental and veterinary apparatus, instruments and articles generally used for the diagnosis, treatment or improvement of function or condition of persons and animals, including, in particular, support bandages and orthopaedic bandages, as well as special clothing for medical purposes, such as compression garments and stockings for varices.
43      Those goods therefore have a ‘medical’, ‘orthopaedic’ or ‘therapeutic’ purpose, in the light of the meaning that must be given to those terms, as set out in paragraphs 34 to 39 above. The applicant also acknowledges that some of the intervener’s goods, for instance elastic supports, including elastic supports for stabilising injured areas of the body, make it possible to avoid injury to soft tissue. Such a function serves a medical purpose.
44      Consequently, having regard both to the usual meaning of the terms ‘medical’, ‘orthopaedic’ and ‘therapeutic’ and to the nature, intended purpose and method of use of the intervener’s goods, the Board of Appeal did not make an error of assessment in finding that genuine use of the contested mark had been proved in connection with the goods at issue in Class 10.
45      The first plea must therefore be rejected as unfounded.
The second plea in law, relating to the existence of independent subcategories of the goods at issue within Class 25
46      The applicant submits that, according to the case-law of the Court of Justice, where an application for a declaration of revocation of a trade mark has been filed, it is necessary to establish whether the mark was registered for a category of goods or services that may be subdivided into several independent subcategories. In appropriate cases, it is necessary to require the proprietor of a trade mark so registered for a broad category of goods or services to adduce proof of genuine use of the mark for each independent subcategory. In that connection, it argues, the criterion of the purpose and intended use of the goods or services is the essential criterion for defining such subcategories, and account must be taken of whether the relevant public will be able to associate with that trade mark all the goods or services belonging to the category for which it has been registered.
47      In this instance, according to the applicant, it is easy to subdivide the categories ‘clothing’ and ‘headgear’ and the intervener has proved genuine use of the contested mark only in relation to goods in the subcategories ‘clothing, headgear, namely compression clothing, fitness wear, running wear’.
48      EUIPO and the intervener dispute the applicant’s arguments.
49      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.
50      With regard to the concept of ‘some of the goods or services’ referred to in Article 58(2) of Regulation 2017/1001, a consumer who wishes to purchase a product or service in a category of goods or services that has been defined particularly precisely and narrowly, but within which it is not possible to make any significant subdivisions, will associate all the goods or services belonging to that category with a mark registered in respect of that category of goods or services. Thus, that trade mark will fulfil its essential function of guaranteeing the origin of those goods or services. In those circumstances, it is sufficient to require the proprietor of such a mark to adduce proof of genuine use of his or her trade mark in relation to some of the goods or services in that homogeneous category (see, to that effect, judgment of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraph 42).
51      On the other hand, with regard to goods or services in a broad category of goods or services, which may be subdivided into several independent subcategories, it is necessary to require the proprietor of a mark registered in respect of that category of goods or services to adduce proof of genuine use of his or her mark for each of those independent subcategories, failing which he or she will be liable to forfeit his or her rights to the trade mark in respect of those independent subcategories for which he or she has not adduced such proof (see, to that effect, judgment of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraph 43).
52      Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the trade mark concerned being stripped of all protection for goods which, although not strictly identical to those in respect of which he or she has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. In that regard, it is in practice impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘some of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or subcategories (judgments of 14 July 2005, Reckitt Benckiser (España) v OHIM – Aladin (ALADIN), T‑126/03, EU:T:2005:288, paragraph 46, and of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 24).
53      With regard to the relevant criterion or criteria to apply for the purpose of identifying a coherent subcategory of goods or services capable of being viewed independently, the criterion of the purpose and intended use is an essential criterion for defining a subcategory of goods or services (see, to that effect, judgment of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraph 44 and the case-law cited).
54      By contrast, the nature of the goods at issue and their characteristics are not, as such, relevant with regard to the definition of subcategories of goods or services (see judgment of 7 November 2019, INTAS, T‑380/18, EU:T:2019:782, paragraph 94 and the case-law cited).
55      In the present case, the Board of Appeal found that genuine use of the contested mark had been proved for all the goods at issue in Class 25 by means of the production of numerous purchase orders, archived screenshots from websites, catalogues and invoices, as well as a product review showing that both compression and non-compression clothing, such as pants, shorts, socks, various tops and headgear, were offered for sale and sold in many EU Member States.
56      In that regard, it is apparent from the archived screenshots from websites, the promotional photographs and the catalogues of the intervener that the latter produces and markets under the contested mark long tights, jogging pants, shorts, trousers, socks, calf sleeves, running gloves and various types of tops, including bras, t-shirts, tank tops, sports jerseys, vests, fleeces, pullovers with and without hoods, windproof jackets and padded jackets, as well as caps, visors, beanies and headbands, aimed at both men and women, for the purpose of practising a sport, such as running, fitness, triathlon, cycling, cross-country skiing or football, as well as for casual purposes. In addition, the names of the goods on the purchase orders and invoices produced by the intervener show that the contested mark is used, inter alia, in connection with clothing and headgear for various purposes (‘running’, ‘cycle’, ‘dynamic’, ‘activewear’, ‘teamspeed’, ‘essentials active’, ‘accessories’).
57      Contrary to what the applicant maintains, it is therefore not correct to claim that the evidence of use relates only to ‘compression clothing’, ‘running wear’ and ‘fitness wear’. Indeed, the evidence referred to in paragraph 56 above illustrates, at the very least, a certain variety in the clothing and headgear marketed by the intervener, the purpose and intended use of which consist in both the practice of various sporting activities and casual wear.
58      Accordingly, contrary to what the applicant submits, the evidence produced by the intervener is capable of proving use of the contested mark in connection with all the goods at issue in Class 25.
59      In any event, where the goods covered have several purposes and intended uses – as is the case here – determining whether there exists a separate subcategory of goods by considering in isolation each of the purposes that those goods may have will not be possible. Indeed, such an approach would not enable independent subcategories to be identified coherently and would have the effect of limiting excessively the rights of the proprietor of the earlier mark, inter alia in that that person’s legitimate interest in expanding his or her range of goods or services for which his or her trade mark is registered would not sufficiently be taken into consideration (see judgment of 22 October 2020, Ferrari, C‑720/18 and C‑721/18, EU:C:2020:854, paragraph 47 and the case-law cited).
60      Furthermore, as EUIPO correctly points out and as the applicant acknowledged at the hearing, sportswear, fitness wear and running wear are also used as ordinary clothing in everyday life and for leisure purposes other than those for which they are initially marketed, and not automatically for sporting activities.
61      In the light of the foregoing, ‘compression clothing’, ‘fitness wear’ and ‘running wear’ cannot be regarded as subcategories that are different from and independent of other types of ordinary, leisure and sports clothing in Class 25, on the ground that they share the same purpose, and the intervener cannot be required to adduce proof of use of its mark for each type of clothing or headgear.
62      It follows that the evidence produced by the intervener proves genuine use of the contested mark in connection with the goods at issue in Class 25, as the Board of Appeal correctly observed.
63      The second plea must therefore be rejected as unfounded and the action must be dismissed in its entirety.
Costs
64      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.
65      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Skins IP Ltd to pay the costs.
Costeira
Öberg
Zilgalvis
Delivered in open court in Luxembourg on 13 November 2024.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.