JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
5 March 2025 (*)
( EU trade mark – Revocation proceedings – EU word mark ROZALIYA jewelry for enlightenment – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 – Proof of genuine use – Articles 94 and 95 of Regulation 2017/1001 )
In Case T‑118/24,
Rosalia Vila Tobella, residing in Sant Esteve Sesrovires (Spain), represented by P. Martini-Berthon, 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 being
Raphael Europe Ltd, established in Sofia (Bulgaria),
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, G. De Baere and S. Kingston (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By her action under Article 263 TFEU, the applicant, Ms Rosalia Vila Tobella, seeks the annulment and the alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 December 2023 (Case
R 430/2023-4) (‘the contested decision’).
Background to the dispute
2        On 17 May 2016, Raphael Europe Ltd filed an application for registration of an EU trade mark with EUIPO for the word sign ROZALIYA jewelry for enlightenment.
3        The goods in respect of which registration was sought are in, inter alia, Class 14 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 to the following description: ‘Jewellery boxes and watch boxes; jewellery; statues and figurines, made of or coated with precious or semi-precious metals or stones, or imitations thereof; ornaments, made of or coated with precious or semi-precious metals or stones, or imitations thereof; key fobs [rings] coated with precious metal; objet d’art of enamelled gold; objet d’art of enamelled silver; identification bracelets [jewelry]; identity plates of precious metal; key rings [trinkets or fobs] of precious metal; key fobs of imitation leather; leather key fobs; key fobs of common metal; metal key fobs; prize cups of precious metals; works of art of precious metal; silver objets d’art; charms of precious metals; charms of semi-precious metals; trophies made of precious metals; trophies coated with precious metal alloys; key charms coated with precious metals; trinkets coated with precious metal; trinkets of bronze; personal jewellery; amulets [jewellery, jewelry (Am)]; jewelry for the head; jewellery for personal adornment; jewellery chain of precious metal for bracelets; jewellery ornaments; decorative articles [trinkets or jewellery] for personal use; charms; clasps for jewelry; collets being parts of jewellery; closures for necklaces; necklaces [jewellery, jewelry (Am)]; jewelry findings; charms [jewellery] of common metals; jewel cases; cases [fitted] for clocks’.
4        The trade mark application was published in Community Trade Marks Bulletin on 30 May 2016 and the mark was registered on 6 September 2016.
5        On 8 October 2021, the applicant filed an application for revocation of the contested mark pursuant to Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), in respect of all the goods referred to in paragraph 3 above.
6        On 21 December 2022, the Cancellation Division partially revoked the contested mark in respect of all the goods in Class 14 referred to in paragraph 3 above, with the exception of ‘jewellery; personal jewellery; jewellery for personal adornment; jewellery ornaments; decorative articles [trinkets or jewellery] for personal use; necklaces [jewellery, jewelry (Am)]; jewelry findings’.
7        On 20 February 2023, the applicant filed a notice of appeal against the decision of the Cancellation Division, in so far as the registered mark had not been revoked in respect of the goods referred to in paragraph 6 above.
8        By the contested decision, concerning the goods in Class 14 referred to in paragraph 6 above, the Board of Appeal dismissed the appeal, finding, in essence, that the evidence submitted by the proprietor of the contested mark proved genuine use of that mark in relation to those goods.
Forms of order sought
9        The applicant claims, in essence, that the Court should:
–        annul the contested decision to the extent that the evidence of genuine use was considered to be sufficient in respect of the relevant goods in Class 14;
–        alter the contested decision;
–        order EUIPO to pay the costs, including those incurred in the proceedings before the Board of Appeal.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
Law
11      The applicant relies on two pleas in law, alleging, first, infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18 of that regulation, and, second, infringement of Article 94(1) and Article 95(1) of that regulation.
The first plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18 of that regulation
12      In support of her first plea, the applicant criticises the Board of Appeal, in essence, for finding that there had been genuine use of the contested mark, although the evidence submitted by the proprietor of that mark does not, according to her, prove such use to the requisite legal standard.
13      In the context of that plea, the applicant puts forward, in essence, three parts, alleging errors of assessment made by the Board of Appeal in its examination of the evidence of use with regard to (i) the nature of the use of the contested mark, (ii) invoices demonstrating sales outside the European Union, and (iii) the extent of use.
14      It should be recalled that, under Article 58(1)(a) of Regulation 2017/1001, the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO or on the basis of a counterclaim in infringement proceedings 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.
15      There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see judgment of 27 September 2007, La Mer Technology v OHIM – Laboratoires Goëmar (LA MER), T‑418/03, not published, EU:T:2007:299, paragraph 54 and the case-law cited).
16      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 use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods 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; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
17      Under Article 10(3) and (4) 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 pursuant to Article 19(1) of that delegated regulation, proof of use of a trade mark must relate to the place, time, extent and nature of use of the mark and is to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001.
18      Furthermore, a global assessment must be carried out which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, a low volume of goods marketed under the trade mark may be compensated for by a high intensity of use or a period of very regular use of that trade mark or vice versa (see judgment of 9 March 2022, PrenzMarien v EUIPO – Molson Coors Brewing Company (UK) (STONES), T‑766/20, not published, EU:T:2022:123, paragraph 41 and the case-law cited).
19      Thus, each piece of evidence is not to be analysed separately, but rather together, in order to determine the most likely and the most coherent meaning. In the context of such an analysis, it cannot be ruled out that an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (judgments of 17 April 2008, Ferrero Deutschland v OHIM, C‑108/07 P, not published, EU:C:2008:234, paragraph 36, and of 7 February 2024, Quatrotec Electrónica v EUIPO – Woxter Technology (WOXTER), T‑792/22, not published, EU:T:2024:69, paragraph 41).
20      It is in the light of those considerations that the applicant’s arguments under the first plea in law must be examined.
21      In the present case, the Board of Appeal considered the period from 8 October 2016 to 7 October 2021 to be the relevant period for the purpose of proving genuine use of the contested mark, a finding which the parties do not dispute.
The nature of the use of the contested mark
22      In paragraphs 52 and 53 of the contested decision, in its assessment of the nature of the use at issue, the Board of Appeal found that the proprietor of the contested mark had established a clear link between the use of its mark and the goods at issue by using it as an indication of the commercial origin of those goods. In that regard, it noted that the contested mark appeared under the company name of its proprietor as well as in the description of the invoices, on the proprietor’s stamp and in the screenshots of websites. Furthermore, it considered that the use of the mark was public, external and apparent to actual or potential customers of the goods.
Therefore, the proprietor of the contested mark had established a clear link between the use of the mark and the relevant goods in Class 14, in so far as that mark was positioned on documents addressed to end users.
23      The applicant submits that the Board of Appeal erred in finding that there was such a clear link between the use of the contested mark and the relevant goods in Class 14. According to the applicant, where a mark is affixed exclusively to commercial documents such as invoices or webpages, it cannot be automatically inferred, in the absence of any document corroborating such elements, that the mark at issue is used as an indication of commercial origin for goods in Class 14.
24      The applicant submits that the fact that the contested mark appears in the description of the invoices, on the proprietor’s stamp or in the screenshots of websites is not sufficient to prove genuine use, as an indication of commercial origin, of the contested mark in relation
to the goods at issue in Class 14, in so far as those items of evidence do not establish that that mark is affixed to those goods or to their packaging. In that regard, the applicant maintains that, in those circumstances, that evidence would, at best, make it possible to establish use as an indication of commercial origin in relation to ‘retail services for jewelry’ in Class 35, and not in relation to the goods at issue in Class 14.
25      EUIPO disputes the applicant’s arguments.
26      Contrary to what the applicant claims, according to the case-law, it is not necessary that the contested mark be affixed to the goods in order for there to be genuine use of the mark in relation to those goods for the purposes of Article 58(1) of Regulation 2017/1001. Even where the mark is not affixed, there is use ‘in relation to goods or services’ for the purposes of that article where the contested mark is used in such a way that a link is established between it and the marketing of the goods and services in question. The presence of the contested mark in particular on invoices and in articles and advertisements relating to those goods is likely to establish that link (see, to that effect, judgments of 29 March 2017, Alcohol Countermeasure Systems (International) v EUIPO – Lion Laboratories (ALCOLOCK), T‑638/15, not published, EU:T:2017:229, paragraph 82 and the case-law cited, and of 7 February 2024, WOXTER, T‑792/22, not published, EU:T:2024:69, paragraph 81).
27      First of all, it should be noted that the evidence of use produced by the proprietor of the contested mark during the administrative proceedings before EUIPO included, first, 37 invoices relating, inter alia, to sales of jewellery, dated between January 2019 and October 2021, addressed to customers in various Member States of the European Union, such as Belgium, Croatia, Denmark, France, the Netherlands, Greece, Italy, the Czech Republic, Romania, Slovakia and Poland, and outside the European Union, namely in the United Kingdom, Ukraine and Türkiye; second, 3 tables, dating from 2019, 2020 and 2021, listing a total of 112 invoices issued by the proprietor of the contested mark, of which 64 relate to goods in Class 14; and, third, 2 screenshots of advertisements for the contested mark on YouTube and Facebook, a screenshot of the Twitter account of the proprietor of the contested mark showing a publication in which the mark is presented in connection with jewellery, and a screenshot of the webpage ‘www.rozaliyajewelry.com’.
28      With regard to the invoices provided, the mark appears below the company name of its proprietor and in the description of the goods listed in the invoices, which correspond to the goods in Class 14 covered by the contested mark, and on its proprietor’s stamp. The contested mark is affixed to the bottom right-hand corner of the invoices, in the form of its proprietor’s stamp, and to each of the lists of invoices for 2019, 2020 and 2021. The first word element of the contested mark, namely the term ‘rozaliya’, appears without the secondary element ‘jewelry for enlightenment’ in the product references on the invoices, and the stamp bearing the contested mark in its entirety is affixed to all the commercial documents.
29      As regards the screenshots of the webpages containing advertisements, they show use of the contested mark in connection with jewellery.
30      It follows that, in the light of the case-law cited in paragraph 26 above, even if the mark is not affixed to the goods themselves, the evidence establishes to the requisite standard the link between the use of the contested mark and the marketing of the goods at issue in Class 14.
31      Lastly, the applicant’s argument that the evidence in question tends to establish an indication of commercial origin not in relation to the goods at issue in Class 14, but rather in relation to ‘retail services for jewelry’ in Class 35, cannot succeed. It must be recalled that ‘retail services’ are generally provided for the benefit of others, and not for the proprietor’s own goods. With regard to the services in Class 35, and in accordance with the explanatory note to the classification provided for under the Nice Agreement, as revised and amended, they concern the sale of goods, are provided at the time of, and with a view to, the sale of goods, and are provided for the benefit of others (see, to that effect, judgments of 4 March 2020, Tulliallan Burlington v EUIPO, C‑155/18 P to C‑158/18 P, EU:C:2020:151, paragraph 126, and of 20 January 2021, Apologistics v EUIPO – Peikert (discount-apotheke.de), T‑844/19, not published, EU:T:2021:25, paragraph 53). In the present case, there is nothing in the file to indicate that the proprietor of the contested mark sold the jewellery of others or that it carried out other retail-related activities.
32      That finding is not called into question by the judgment of 8 May 2017, Les Éclaires v EUIPO – L’éclaireur International (L’ECLAIREUR) (T‑680/15, not published, EU:T:2017:320), to which the applicant refers. In that regard, she points out that the
Court had found that consumers were confronted with goods labelled with the mark at issue in that case. Accordingly, the applicant concludes that if, in that case, there had been no evidence of the mark at issue being affixed to the goods, the
Court would presumably have found that that mark was used only in relation to retail services. However, that conclusion results from a misreading of the judgment of 8 May 2017, L’ECLAIREUR (T‑680/15, not published, EU:T:2017:320). Contrary to what the applicant claims, it cannot be inferred from that judgment that, in the absence of proof that the mark is actually affixed to goods, no genuine use could be proved in relation to those goods, while genuine use would be proved in relation to retail services. On the contrary, in paragraph 35 of that judgment, referring to Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the
Court recalled that, even where the sign at issue was not affixed to the goods, there was use ‘in relation to goods or services’ within the meaning of the abovementioned provision where that sign was used in such a way that a link was established between the sign which constituted the company, trade or shop name of an undertaking and the goods marketed or the services provided by that undertaking. In addition, the
Court observed that, even though it was not apparent from the invoices that the mark at issue was affixed to the goods, the use of that mark on those invoices made it possible to create a link between the mark at issue and the goods.
33      Consequently, it must be concluded that the Board of Appeal did not make any error of assessment in finding that the evidence submitted established that the contested mark had been used as an indicator of the commercial origin of the goods at issue in Class 14. The present part of the first plea in law must therefore be rejected as unfounded.
Invoices demonstrating sales outside the European Union
34      In paragraph 33 of the contested decision, the Board of Appeal found that the invoices submitted in order to establish genuine use of the contested mark included invoices showing the quantities sold and the prices of the goods, issued by the proprietor of the contested mark to customers established outside the European Union, namely in the United Kingdom, Ukraine and Türkiye. First, in paragraph 35 of the contested decision, the Board of Appeal noted that, in accordance with the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7), the United Kingdom left the European Union on 1 February 2020. The transition period provided for in that agreement, during which EU law remained applicable to and in the United Kingdom, ended on 31 December 2020. The Board of Appeal concluded on that basis that the invoices relating to sales in the United Kingdom constituted use ‘in the [European] Union’ for the purpose of establishing genuine use up to that date.
35      Second, the Board of Appeal found, in paragraph 48 of the contested decision, that, in accordance with Article 18(1)(b) of Regulation 2017/1001, the affixing of the EU trade mark to goods or to the packaging thereof in the European Union solely for export purposes also constituted genuine use. Therefore, in its view, the invoices demonstrating sales outside the European Union should be interpreted ‘as [relating to the] export from [the European Union] of goods with the [contested] mark’.
36      The applicant does not dispute the Board of Appeal’s finding that the invoices relating to sales outside the European Union indicate that those sales would be regarded as exports for the purposes of Article 18(1)(b) of Regulation 2017/1001. By contrast, according to the applicant, the mere fact that those invoices may be regarded as relating to exports is not sufficient to establish genuine use of the contested mark, in the absence of proof that that mark was affixed to the exported goods. She submits that the Board of Appeal erred in finding that those invoices addressed to customers outside the European Union could automatically prove that the contested mark was genuinely affixed to those goods and, therefore, that the commercial origin of those goods would be identifiable.
37      EUIPO disputes that argument put forward by the applicant.
38      Under Article 18(1)(b) of Regulation 2017/1001, ‘affixing of the EU trade mark to goods or to the packaging thereof in the [European] Union solely for export purposes’ is to constitute use of an EU trade mark within the meaning of that article.
39      Thus, Article 18(1)(b) of Regulation 2017/1001 introduces a specific requirement when it comes to proving that a trade mark has been used solely for export purposes; such proof must be adduced, according to that provision, by establishing that the mark has been affixed ‘to goods or to the packaging thereof’ (judgment of 17 September 2019, Rose Gesellschaft v EUIPO – Iviton (TON JONES), T‑633/18, not published, EU:T:2019:608, paragraph 46).
40      In the present case, it is true that the Board of Appeal did not examine whether the conditions for the application of Article 18(1)(b) of Regulation 2017/1001 were satisfied. In particular, it did not examine whether, as regards the goods intended for export from the European Union, the contested mark had been affixed ‘to goods or to the packaging thereof’, within the meaning of that article and of the case-law cited in paragraph 39 above.
41      However, that error cannot entail the annulment of the contested decision since, in the circumstances of the present case, it has had no effect on the outcome (see, to that effect, judgment of 3 June 2015, Giovanni Cosmetics v OHIM – Vasconcelos & Gonçalves (GIOVANNI GALLI), T‑559/13, EU:T:2015:353, paragraph 135 (not published) and the case-law cited).
42      Indeed, it is apparent from the file that almost all the evidence submitted by the proprietor of the contested mark demonstrates use of that mark in the territory of the European Union. In particular, the vast majority of the invoices provided by the proprietor of the contested mark concern not sales to customers outside the European Union, but rather sales to customers established in the European Union. Of the 37 invoices provided, only 3 concern goods intended for export, namely to Ukraine and Türkiye. Similarly, only 4 invoices in the list of 64 relating to goods in Class 14 concern goods intended for export.
43      As regards the invoices relating to goods intended for the United Kingdom, they date from a period prior to 31 December 2020. Thus, as the Board of Appeal correctly observed (see paragraph 34 above), those invoices must be regarded as demonstrating sales within the European Union.
44      As was concluded in the context of the first part of the first plea in law, the Board of Appeal did not make any error of assessment in finding that the evidence submitted by the proprietor of the contested mark established that that mark had been used as an indicator of the commercial origin of the goods sold in the European Union.
45      The present part of the first plea in law must therefore be rejected as ineffective.
Extent of use
46      In paragraph 68 of the contested decision, the Board of Appeal found that the evidence submitted by the proprietor of the contested mark was sufficient to establish that the contested mark was present on the market in a manner that was effective, consistent over time and stable in relation to the goods at issue in Class 14. In that regard, the Board of Appeal observed that, according to the proprietor of the contested mark, the goods offered were creative artistic products and that some of them were produced at the request of customers and were relatively expensive, which supports a finding of genuine use despite the low quantities of units sold.
47      The applicant submits that, according to the case-law, jewellery goods are considered to be everyday consumer goods and that, as a result, the invoices submitted do not meet the quantitative and qualitative thresholds for a finding of genuine use. According to the applicant, the goods at issue are ‘standard goods’, contrary to what the Board of Appeal stated.
48      EUIPO disputes the applicant’s line of argument.
49      It should be recalled that, in order to assess the extent of the use to which the contested trade mark has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (judgment of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 35).
50      Thus, the smaller the commercial volume of the exploitation of the mark, the more necessary it is for the party opposing new registration to produce additional evidence to dispel possible doubts as to the genuineness of the use of the mark in question (see judgment of 10 July 2006, La Baronia de Turis v OHIM – Baron Philippe de Rothschild (LA BARONNIE), T‑323/03, EU:T:2006:197, paragraph 44 and the case-law cited).
51      Even minimal use can be sufficient to be classified as genuine, provided that it is regarded as warranted, in the relevant economic sector, as a means of maintaining or creating market shares for the goods or services protected by the mark. It follows that it is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether the use was genuine or not, so that a de minimis rule, which would not allow EUIPO or, on appeal, the Court, to appraise all the circumstances of the dispute before it, cannot be laid down (judgment of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 72).
52      In addition, the turnover and the volume of sales of the goods under the earlier trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services in the relevant market. Thus, use of the earlier mark need not always be quantitatively significant in order to be deemed genuine (see judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42 and the case-law cited).
53      In that regard, it should be noted that, as was stated in paragraph 68 of the contested decision, the invoices submitted by the proprietor of the contested mark demonstrate purchases of approximately 16 bracelets, 10 rings, 16 pendants, 3 necklaces, 1 pair of cufflinks and 6 pairs of earrings. So far as concerns the goods in Class 14, the total amount shown in all those invoices was EUR 7 691 in respect of 2019, EUR 11 621 in respect of 2020 and EUR 5 637 in respect of 2021.
54      Although it is not in dispute that both the number of units sold and the turnover are low, the proprietor of the contested mark claimed that this concerned only a sample of invoices, which the Board of Appeal acknowledged. That finding has not been called into question by the applicant in the present case. Moreover, that finding is borne out by the fact that the numbering of those invoices is non-consecutive (see, to that effect, judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraph 38 (not published) and the case-law cited). Furthermore, as was noted in paragraph 42 above, in addition to those invoices, the proprietor of the contested mark provided a list of 64 invoices relating to the relevant period that demonstrate sales of goods in Class 14.
55      In addition, as EUIPO correctly contends, the circumstances in which the contested mark is used, namely in connection with relatively expensive goods, are capable of demonstrating that, despite the relatively low number of product units sold under the contested mark, the use which has been made of that mark has not been merely token, but constitutes use of that mark in accordance with its essential function, a use which, according to the case-law cited in paragraph 15 above, must be classified as ‘genuine use’ within the meaning of Article 58(1)(a) of Regulation 2017/1001 (see, to that effect, judgment of 22 October 2020, Ferrari, C‑720/18 and C‑721/18, EU:C:2020:854, paragraph 52). Indeed, it is because of the high cost of such hand-crafted goods that the number of units sold is relatively low.
56      Furthermore, as regards the existence of alleged quantitative and qualitative thresholds for a finding of genuine use, which, according to the applicant, have not been met, it suffices to recall the case-law cited in paragraph 51 above, according to which it is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether the use was genuine or not.
57      It follows that the Board of Appeal did not err in finding, in paragraph 68 of the contested decision, that the evidence was sufficient to establish that the contested mark had been present on the market in a manner that was effective, consistent over time and stable in relation to the goods at issue.
58      That conclusion is not called into question by the judgment of 12 February 2015, Compagnie des montres Longines, Francillon v OHIM – Cheng (B) (T‑505/12, EU:T:2015:95), cited by the applicant in support of her argument that the goods at issue in Class 14 are ‘consumer goods’. Although the Court held that watches and jewellery may, in principle, come under ‘consumer’ goods, that finding does not, in the present case, preclude the goods offered from being creative artistic products, nor does it preclude some of them from being produced at the request of customers and from being relatively expensive, which the applicant does not dispute. Furthermore, it must be observed that the cited paragraphs of that judgment related to the issue of the comparison of the goods in the assessment of the likelihood of confusion within the meaning of Article 8(1) of Regulation 2017/1001, and not to the issue of assessment of genuine use of a trade mark.
59      As regards the applicant’s argument that the goods at issue are – contrary to what the Board of Appeal stated – ‘standard’ goods, it suffices to observe that, as EUIPO contends, the Board of Appeal used the term ‘non-standard product’ for the sole purpose of indicating the hand-crafted nature of the goods at issue, which are produced at the request of customers.
60      In the light of the foregoing, the applicant’s first plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, must be rejected in its entirety.
The second plea in law, alleging infringement of Article 94(1) and Article 95(1) of Regulation 2017/1001
61      Under the first sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO are to state the reasons on which they are based. That obligation to state reasons, which also derives from Article 296 TFEU, has been the subject of settled case-law according to which the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question in such a way as to enable, first, the persons concerned to exercise effectively their right to request judicial review of the contested decision and, second, the Courts of the European Union to exercise their power to review the legality of the decision (see, to that effect, judgment of 29 June 2017, Cipriani v EUIPO – Hotel Cipriani (CIPRIANI), T‑343/14, EU:T:2017:458, paragraph 34 and the case-law cited). The question of whether the statement of reasons for a decision satisfies those requirements is to be assessed by reference not only to its wording but also to its context and the entire body of legal rules governing the matter in question (see, to that effect, judgment of 18 March 2015, Naazneen Investments v OHIM – Energy Brands (SMART WATER), T‑250/13, not published, EU:T:2015:160, paragraph 15 and the case-law cited).
62      Thus, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent court with sufficient material for it to exercise its power of review (judgment of 9 July 2008, Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 55).
63      It must also be recalled that a claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the decision are inaccurate, the latter plea being a matter to be reviewed by the Court when it examines the substance of that decision (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 23 September 2015, Mechadyne International v OHIM (FlexValve), T‑588/14, not published, EU:T:2015:676, paragraph 59). The fact that the grounds may be incorrect does not mean that there is no statement of reasons (see judgment of 30 September 2016, Alpex Pharma v EUIPO – Astex Pharmaceuticals (ASTEX), T‑355/15, not published, EU:T:2016:591, paragraph 45 and the case-law cited).
64      In the first place, the applicant submits that the Board of Appeal did not properly take into account her line of argument according to which the evidence submitted by the proprietor of the contested mark did not establish genuine use of the contested mark in accordance with its essential function in relation to the relevant goods in Class 14 but, at most, established such use in relation to retail services in Class 35. Furthermore, the applicant claims that the Board of Appeal disregarded her argument alleging a lack of sufficient evidence showing that the contested mark was affixed to the goods or to the packaging thereof in respect of sales within the European Union.
65      In the second place, the applicant maintains that the Board of Appeal failed to explain how the invoices showing sales outside the European Union demonstrated exports of goods that would necessarily and automatically bear the contested mark. She argues that, in that regard, the Board of Appeal relied on mere suppositions and not on facts.
66      EUIPO disputes the applicant’s arguments.
67      In the first place, the Board of Appeal provided a substantiated statement of reasons showing why the evidence submitted established genuine use in relation to the goods sold within the European Union.
68      Thus, it is apparent from the contested decision that the Board of Appeal analysed all the evidence submitted by the proprietor of the contested mark, finding in paragraph 44 of the contested decision that there was sufficient evidence on file referring to the relevant period. Next, it has been held in paragraphs 30 and 44 above that the Board of Appeal was correct in finding that the proprietor of the contested mark had established a clear link between the use of the mark and the relevant goods in Class 14. Furthermore, as has been pointed out in paragraph 46 above, the Board of Appeal considered that the evidence was sufficient to establish that the contested mark had been present on the market in a manner that was effective, consistent over time and stable. Lastly, in paragraph 73 of the contested decision, the Board of Appeal concluded that, taking into account the entirety of the evidence submitted by the proprietor of the contested mark, that evidence was sufficient to prove genuine use of the contested mark within the meaning of Article 58(1)(a) of Regulation 2017/1001 in relation to the goods in Class 14.
69      Therefore, contrary to what the applicant claims, the Board of Appeal did not rely on mere suppositions, but took into account evidence provided by the proprietor of the contested mark, including invoices and screenshots.
70      In addition, it must be observed, as EUIPO contends, that the applicant did not, in her statement of grounds for the appeal before EUIPO, put forward any argument regarding the use of the contested mark in relation to retail services in Class 35. That argument appears in the application lodged in the context of the present action before the Court, but was not raised before the Board of Appeal. It follows that, contrary to what the applicant claims, the Board of Appeal cannot be criticised for not taking into account her argument relating to genuine use of the contested mark in relation to those services.
71      Therefore, in the light of the case-law referred to in paragraphs 61 and 62 above, the applicant’s line of argument cannot succeed, since she is in a position to understand, on the basis of the explanations provided in the abovementioned paragraphs of the contested decision, the reasons supporting the Board of Appeal’s conclusion as to genuine use of the contested mark and since the
Court is in a position to exercise its power of review.
72      In the second place, as regards sales of goods intended for export, the Board of Appeal stated that ‘the invoices demonstrating purchases outside the [European Union] will be interpreted as [relating to the] export from [the European Union] of goods with the [contested] mark’. In that regard, as has been stated in paragraph 42 above, in the present case, almost all the evidence submitted by the proprietor of the contested mark demonstrates use of that mark in the territory of the European Union and establishes to the requisite standard that the contested mark has been put to genuine use. Accordingly, even if the contested decision were vitiated by a failure to state reasons regarding sales of goods intended for export, that would have no bearing on the operative part of the contested decision for the same reasons, mutatis mutandis, as those set out in paragraphs 41 to 44 above.
73      In view of the foregoing, the plea in law alleging infringement of Article 94(1) and Article 95(1) of Regulation 2017/1001 must be rejected.
74      In the light of all of the foregoing considerations, the action must be dismissed in its entirety.
Costs
75      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.
76      Although the applicant has been unsuccessful, EUIPO contended that she should be ordered to pay the costs only in the event that an oral hearing was convened. Since no hearing was held, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs.
Kornezov
De Baere
Kingston
Delivered in open court in Luxembourg on 5 March 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.