JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 November 2025 (*)
( EU trade mark – Opposition proceedings – Application for EU figurative mark OWN – Earlier national word mark my own – Relative grounds for refusal – Article 8(1)(b) of Regulation (EU) 2017/1001 – Evidence adduced for the first time before the Board of Appeal – Article 95(2) of Regulation 2017/1001 – Article 27(4) of Delegated Regulation (EU) 2018/625 – Proof of genuine use of the earlier mark – Article 47(2) and (3) of Regulation 2017/1001 )
In Case T‑34/25,
Centex SpA, established in Gandino (Italy), represented by B. Cartella, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Adler Modemärkte GmbH, established in Haibach (Germany),
THE GENERAL COURT (Eighth Chamber),
composed, at the time of the deliberations, of G. De Baere (Rapporteur), acting as President, D. Petrlík and K. Kecsmár, 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 its action under Article 263 TFEU, the applicant, Centex SpA, seeks the annulment and the alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 November 2024 (Case R 541/2024-5) (‘the contested decision’).
Background to the dispute
2        On 1 February 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3        The mark applied for covered goods in Class 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, corresponding to various garments and items of clothing.
4        On 10 May 2022, the predecessor in title to Adler Modemärkte GmbH, filed a notice of opposition to the registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5        The opposition was based on the earlier German word mark my own, covering, inter alia, goods in Class 25, corresponding to the following description: ‘Outerwear and underwear for men, women and children, including mesh-woven and knitted, of fur, leather and imitation leather; belts; sports and bathing wear, bathrobes, shirts, blouses, night garments, stockings; corsetry articles, namely corsets, corselets, girdles, garter belts, as well as brassieres; headgear for wear, neckties; scarves, shawls, head scarves, pocket squares, slippers, footwear’.
6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) 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).
7        Following the applicant’s request, EUIPO invited Adler Modemärkte to adduce proof of genuine use of the earlier mark relied on in support of the opposition. Adler Modemärkte complied with that request within the period prescribed.
8        On 16 January 2024, the Opposition Division rejected the opposition, finding that genuine use of the earlier mark had not been demonstrated.
9        On 12 March 2024, the proprietor of the earlier mark filed a notice of appeal with EUIPO against the Opposition Division’s decision.
10      By the contested decision, the Board of Appeal upheld the appeal in part, on the ground that, contrary to what had been found by the Opposition Division, proof of genuine use of the earlier mark had been adduced for ‘outerwear for women’ in Class 25. It remitted the case to the Opposition Division for further examination of the opposition in respect of those goods.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        confirm the decision of the Opposition Division and declare the lack of proof of genuine use of the earlier mark;
–        order EUIPO to pay the costs, including those incurred before EUIPO.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
Law
13      The applicant relies on two pleas in law, alleging, in essence, first, infringement of Article 95(2) of Regulation 2017/1001 and Article 27(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) and, second, infringement of Article 47(2) and (3) of Regulation 2017/1001.
First plea in law, alleging infringement of Article 95(2) of Regulation 2017/1001 and Article 27(4) of Delegated Regulation 2018/625
14      The applicant disputes the admissibility of the evidence adduced for the first time before the Board of Appeal by the proprietor of the earlier mark. It submits, in essence, that that evidence is not capable of supporting or supplementing the evidence already adduced before the Opposition Division. In particular, it submits that the use of the earlier mark should be demonstrated from the first phase of the proceedings before that division. However, according to the applicant, some of the documents submitted for the first time before the Board of Appeal are intended to date that use, with the result that they constitute new evidence which is inadmissible at the appeal stage. Thus, the Board of Appeal did not take sufficient account of the specific features of the proceedings relating to proof of use of a mark. The applicant adds that the evidence at issue already existed at the date of the proceedings before the Opposition Division and that the proprietor of the earlier mark was in a position to adduce it at that stage. Lastly, according to the applicant, that evidence does not demonstrate the sale of the products or the presence of such a trade mark on the market, nor the public’s knowledge of that mark, and this circumstance makes that evidence irrelevant.
15      EUIPO disputes the applicant’s arguments.
16      Under Article 95(2) of Regulation 2017/1001, EUIPO ‘may disregard facts or evidence which are not submitted in due time by the parties concerned’.
17      It follows from the wording of Article 95(2) of Regulation 2017/1001 that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time limits to which such submission is subject under the provisions of that regulation, and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced late (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 42, and of 2 June 2021, Franz Schröder v EUIPO – RDS Design (MONTANA), T‑854/19, EU:T:2021:309, paragraph 24).
18      However, it is equally apparent from the wording of Article 95(2) of Regulation 2017/1001 that a party has no unconditional right to have facts and evidence submitted out of time taken into consideration by EUIPO. In stating that EUIPO ‘may’ decide to disregard such evidence, that provision grants EUIPO a broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take it into account (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 43, and of 2 June 2021, MONTANA, T‑854/19, EU:T:2021:309, paragraph 25).
19      As regards the exercise by the Board of Appeal of its discretion, for the purposes of taking into account facts or evidence submitted for the first time before it, it is apparent from Article 27(4) of Delegated Regulation 2018/625 that, in accordance with Article 95(2) of Regulation 2017/1001, that board may accept facts or evidence submitted for the first time before it only where those facts or evidence, first, are, on the face of it, likely to be relevant for the outcome of the case and, second, have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.
20      In the present case, the Board of Appeal noted that the proprietor of the earlier mark had adduced certain items of evidence for the first time before it. It held, first, that that evidence was, on the face of it, relevant for the outcome of the appeal and, second, that it was intended to supplement the documents already submitted before the Opposition Division and to contest the Opposition Division’s findings. In those circumstances, the Board of Appeal considered that evidence admissible.
21      The evidence at issue consists of three compilations of archive screenshots from the website of the proprietor of the earlier mark (‘document 17’, ‘document 18’ and ‘document 19’, respectively).
22      In that regard, as a preliminary point, it should be noted that document 17 contains only screenshots already submitted by the proprietor of the earlier mark in its written pleadings before the Opposition Division. Consequently, it cannot be regarded as evidence adduced for the first time before the Board of Appeal.
23      As regards documents 18 and 19, first, those archive screenshots from the website of the proprietor of the earlier mark date, for the most part, from the relevant period, and refer to the offering for sale, via that website, of numerous clothing items under that mark. Thus, contrary to what the applicant claims, those documents must be regarded, on the face of it, as likely to be relevant for the outcome of the present dispute, in that they are capable of demonstrating, inter alia, outward use of the mark in connection with the goods which it covers. Furthermore, as has been noted by the applicant itself, such evidence provides information as to the dates of that use.
24      Second, as regards the question whether documents 18 and 19 may supplement the evidence already adduced in due time, it should be borne in mind that additional evidence is that characterised by a link with other evidence which has previously been submitted in due time and which supplements that evidence (see, to that effect, judgments of 14 May 2019, Guiral Broto v EUIPO – Gastro & Soul (Café del Sol and CAFE DEL SOL), T‑89/18 and T‑90/18, not published, EU:T:2019:331, paragraph 42, and of 9 September 2020, Kludi v EUIPO – Adlon Brand (ADLON), T‑144/19, not published, EU:T:2020:404, paragraph 56).
25      In the present case, documents 18 and 19 were intended to prove facts already relied on before the Opposition Division and they are of the same nature as certain items of evidence which had already been adduced before that division. As EUIPO correctly argues, the proprietor of the earlier mark had already produced screenshots of its website at the stage of the proceedings before that division.
26      Contrary to what the applicant submits, that finding is also valid as regards the evidence relating to the time of use. As the applicant itself acknowledges, the screenshots contained in document 17, which had been produced before the Opposition Division, were dated. Accordingly, documents 18 and 19, which are also dated, merely supplement that document. Thus, the applicant’s argument that, in essence, the specific features of the proof of genuine use of an earlier mark require that the date of that use during the relevant period be demonstrated at the first stage of the proceedings, namely before the Opposition Division, must be rejected as ineffective.
27      Furthermore, as the Board of Appeal rightly pointed out, documents 18 and 19 were filed in order to contest the findings made by the Opposition Division, based on a lack of proof of use of the earlier mark and, in particular, on the lack of proof of use dated from the relevant period. Consequently, such evidence merely supplements relevant facts and evidence which have already been submitted in due time and seeks to contest that division’s findings.
28      Lastly, in so far as the applicant submits, in essence, that the Board of Appeal should not have accepted documents 18 and 19 as admissible evidence, since the proprietor of the earlier mark could have provided them before the Opposition Division, that argument must be rejected. It is not necessary that the party concerned be unable to adduce evidence before the Opposition Division, in order for additional evidence of use, produced for the first time before the Board of Appeal, to be taken into account. On the contrary, the interpretation advocated by the applicant for the application of Article 95(2) of Regulation 2017/1001 and of Article 27(4) of Delegated Regulation 2018/625 is likely to restrict the discretion granted to that Board of Appeal under those provisions, as referred to in paragraphs 16 to 19 above, and to affect adversely the principles of legal certainty and of sound administration justifying that discretion (see, to that effect, judgments of 26 July 2023, Guma Holdings v EUIPO – XTB (XTRADE), T‑67/22, not published, EU:T:2023:436, paragraph 33 and the case-law cited, and of 23 October 2024, Olvi v EUIPO – Koninklijke De Kuyper (FIZZ Cider), T‑1132/23, not published, EU:T:2024:726, paragraph 28).
29      In the light of the foregoing, the Board of Appeal did not err in the application of Article 27(4) of Delegated Regulation 2018/625 and, consequently, it correctly exercised its discretion, as provided for in Article 95(2) of Regulation 2017/1001. The first plea in law must, therefore, be rejected as unfounded.
The second plea on law, alleging infringement of Article 47(2) and (3) of Regulation 2017/1001
30      The applicant submits that the Board of Appeal erred in finding that the proprietor of the earlier mark had made genuine use of that mark.
31      EUIPO disputes the applicant’s line of argument.
32      Article 47(2) of Regulation 2017/1001 provides that, if the applicant so requests, the proprietor of an earlier EU trade mark who has given notice of opposition is to furnish proof that, during the five-year period preceding the date of filing or the date of priority of the EU trade mark application, the earlier EU trade mark has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and which he or she cites as justification for his or her opposition, or that there are proper reasons for non-use, provided that the earlier EU trade mark has at that date been registered for not less than five years. In the absence of proof to this effect, the opposition is to be rejected. Article 47(3) of Regulation No 2017/1001 states that Article 47(2) is to apply to the earlier national trade marks referred to in Article 8(2)(a) of that regulation, by substituting use in the Member State in which the earlier national trade mark is protected for use in the European Union.
33      Such a request therefore has the effect of shifting the burden of proof to the opponent to demonstrate genuine use of his or her mark, or the existence of proper reasons for non‑use, upon pain of having his or her opposition dismissed (see, to that effect, judgment of 22 March 2007, Saint-Gobain Pam v OHIM – Propamsa (PAM PLUVIAL), T‑364/05, EU:T:2007:96, paragraph 37 and the case-law cited).
34      For the purpose of interpreting the concept of ‘genuine use’, account must be taken of the fact that the ratio legis of the requirement that the earlier mark must have been put to genuine use, if it is to be capable of being used in opposition to an EU trade mark application, is to restrict the number of conflicts between two marks, unless there is a good commercial justification for the lack of genuine use of the earlier mark deriving from an actual function of the mark on the market. However, the purpose of the provisions referred to in paragraph 32 above is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks (see, to that effect, judgment of 17 January 2013, Reber v OHIM – Wedl & Hofmann (Walzer Traum), T‑355/09, not published, EU:T:2013:22, paragraph 25 and the case-law cited).
35      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 (see judgment of 7 May 2025, RTL Group Markenverwaltung v EUIPO – Örtl (RTL), T‑1088/23, EU:T:2025:446, paragraph 16 and the case-law cited; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
36      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market 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 (judgments of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 40, and of 7 May 2025, RTL, T‑1088/23, EU:T:2025:446, paragraph 19; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
37      In the present case, in order to prove genuine use of the earlier mark, the proprietor of that mark produced, before the Opposition Division:
–        an affidavit by its managing director, dated 25 April 2023 (‘the affidavit’), including, inter alia, a table allegedly taken from its merchandise management system and setting out the sales figures for the goods sold under that mark in the years 2017 to 2023 (‘the sales table’), undated examples of product labels bearing that mark, two tables allegedly showing the number of advertising catalogues distributed in 2017 and 2018 and examples of those catalogues;
–        undated screenshots from its website, illustrating the marketing of clothing bearing the sign my own essentials;
–        extracts from newsletters distributed by email between September 2017 and November 2018 (‘the newsletters’);
–        archive screenshots from its website, showing the marketing of clothing under the earlier mark, from the Wayback Machine;
38      Furthermore, as has been recalled in paragraph 21 above, the proprietor of the earlier mark produced documents 17 to 19 before the Board of Appeal.
39      The Board of Appeal found that, taken together, that evidence demonstrated genuine use of the earlier mark.
40      The applicant calls into question the Board of Appeal’s assessment as regards the use of the earlier mark during the relevant period, the extent of that use and the fact of whether that use was made in connection with the goods for which that mark is registered.
Time of use
41      The applicant submits that the evidence adduced by the proprietor of the earlier mark is undated, consists of internal documents or is dated by hand. Accordingly, the affidavit has no evidential value in order to date the use of that mark, in that it is not substantiated by other dated evidence. Consequently, it has not been demonstrated that the presence of that mark on the market was effective and consistent over time. According to the applicant, the time of use could have been demonstrated by the production of dated documents such as invoices or the ‘tax documentation’ of the proprietor of the earlier mark, which would have provided turnover figures, or by copies of agreements with advertising undertakings.
42      In that regard, the applicant submits that the contested decision is vitiated by a failure to state reasons, in so far as the Board of Appeal did not explain why the production of the affidavit, supported by screenshots from the website of the proprietor of the earlier mark, was considered sufficient, even though other dated documents could have been produced.
43      EUIPO disputes the applicant’s line of argument.
44      It must be pointed out at the outset, as observed by the Board of Appeal, that in view of the date on which the application for registration of the mark applied for was filed, namely 1 February 2022, the proprietor of the earlier mark was required to prove genuine use of that mark for the period from 1 February 2017 to 31 January 2022 inclusive.
45      The Board of Appeal noted that the affidavit related to sales figures pertaining to the earlier mark for the period 2017 to 2022 and to figures pertaining to the advertising of that mark for 2017 and 2018. It added, in essence, that that affidavit was supported by documents 17 to 19, given that the excerpts from the Wayback Machine concerning the website of the proprietor of that mark fell within the same period. Consequently, it found that the proof of use of the mark in question concerned at least a substantial part of the relevant period.
46      In that regard, as regards the applicant’s argument alleging a failure to state reasons, referred to in paragraph 42 above, it must be borne in mind that, 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. The duty to state reasons thus enshrined has the same scope as that deriving from Article 296 TFEU. It is settled case-law that the statement of reasons required by Article 296 TFEU 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 the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65; of 15 November 2011, Abbott Laboratories v OHIM (RESTORE), T‑363/10, not published, EU:T:2011:662, paragraph 73; and of 23 January 2014, Novartis v OHIM (CARE TO CARE), T‑68/13, not published, EU:T:2014:29, paragraph 27).
47      As regards the statement of reasons for the contested decision, it must be held that the statement of reasons summarised in paragraph 45 above, although succinct, is sufficient to enable the applicant to understand how the dated evidence produced by the proprietor of the earlier mark, taken together, was sufficient to establish use of that mark during the relevant period, even though other evidence could have been provided, and enables the Court to exercise fully its review of legality.
48      As regards the substance, it should be noted, first of all, that the Board of Appeal was right to infer, in essence, from the case-law that, since the affidavit was drawn up by the managing director of the proprietor of the earlier mark, it cannot have the same evidential value as a statement by a third party or a person who is unconnected with the proprietor and that, therefore, that affidavit was not sufficient in itself and was merely an indication which needs to be confirmed by other evidence (see, to that effect, judgment of 1 September 2021, Sony Interactive Entertainment Europe v EUIPO – Vieta Audio (Vita), T‑561/20, not published, EU:T:2021:524, paragraph 57 and the case-law cited).
49      Next, it is true, as the applicant submits, that a number of items of evidence are undated or dated by hand. However, it is sufficient to note that the Board of Appeal’s finding as to the time of use was not based on that evidence, but on dated evidence, in particular, documents 17 to 19, the date of which can be verified by means of the Wayback Machine from which those archives from the website of the proprietor of the earlier mark were extracted. It follows from that evidence that the screenshots provided are those from that website as it appeared between 19 February 2017 and 9 July 2022.
50      The dated evidence at issue shows that various clothing items were consistently offered under the earlier mark throughout the relevant period and therefore substantiates the evidence in the affidavit concerning the time of use of that mark. Consequently, contrary to what the applicant claims, the Board of Appeal did not base its conclusion as to the time of use on a mere internal document, but on a number of dated items of evidence, which establish outward use of that mark, intended for end consumers. It is, therefore, irrelevant that the proprietor of the earlier mark did not produce other dated evidence such as ‘tax documentation’ or invoices.
51      Lastly, and in any event, it is apparent from the case-law that undated documents may, in certain cases, be used to establish use of a mark to the extent to which they serve to confirm facts inferred from other items of evidence (see judgment of 8 June 2022, Muschaweck v EUIPO – Conze (UM), T‑293/21, EU:T:2022:345, paragraph 102 (not published) and the case-law cited).
52      Thus, in the present case, the undated evidence, or evidence dated by hand, such as the catalogues, makes it possible to confirm the use of the earlier mark illustrated by the screenshots of the website of the proprietor of that mark.
53      Furthermore, it must be borne in mind that, according to the case-law, although Article 10(3) of Delegated Regulation 2018/625 refers to indications concerning the place, time, extent and nature of use and Article 10(4) gives examples of acceptable evidence, such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements and statements in writing, Article 10 does not state that each item of evidence must necessarily give information about all four elements to which proof of genuine use must relate, namely the place, time, nature and extent of use (see judgment of 29 January 2025, Quality is Our Recipe v EUIPO – Granizados Maresme (Frosty), T‑168/24, not published, EU:T:2025:113, paragraph 30 and the case-law cited).
54      Consequently, the applicant’s line of argument relating to the time of use must be rejected and it must be concluded that the earlier mark has been put to use during the relevant period.
Extent of use
55      The applicant disputes the Board of Appeal’s assessment that the evidence adduced by the proprietor of the earlier mark provided information concerning a substantial period and showed a certain frequency of use, which enabled it to conclude that the use of that mark was not merely token and that the requirements relating to the extent of use had been satisfied. The applicant submits, first, that the advertising campaigns carried out by the proprietor of the earlier mark are not sufficient to demonstrate genuine use. Second, it submits that the turnover, which is also unsubstantiated, is constantly declining. Furthermore, it is impossible to establish a link between the sales figures and the goods marketed under the earlier mark, since the sales table does not contain any data on individual items. Moreover, some of those sales relate not to that mark but to the sign my own essentials. In addition, the applicant claims, in essence, that the production of invoices or ‘tax documentation’ would have made it possible to demonstrate the presence of the earlier mark on the market and the turnover of the proprietor of that mark. For that reason, the contested decision is not only unfounded, but also vitiated by a failure to state reasons. Third, it has not been demonstrated that the newsletters were read by consumers. In addition, the number of newsletters allegedly distributed is based on mere unsubstantiated statements. Fourth, as regards documents 17 to 19, the applicant submits that the number of screenshots included therein is too low to demonstrate genuine use of the earlier mark. It adds that the proprietor of the earlier mark could have produced a document showing the number of visits for each of the webpages, since the mere fact that such a webpage exists does not mean that it is visited.
56      EUIPO disputes the applicant’s line of argument.
57      As regards the applicant’s argument alleging a failure to state reasons, referred to in paragraph 55 above, it should be noted that the Board of Appeal found that the content of the affidavit was substantiated by the screenshots extracted from the Wayback Machine and dated from the relevant period, showing various clothing items offered under the earlier mark, as well as by advertising material, namely newsletters and catalogues. The Board of Appeal thus noted that it was possible to link the sales figures contained in the affidavit with the various goods offered under that mark on the website of the proprietor of that mark as well as on the advertising material. It also found that that advertising material contained specific information on the goods offered under the same mark, such as their price, and the way in which they had been marketed. Accordingly, it observed that that affidavit was not the only item of evidence adduced, but was accompanied and supported by others. Such a statement of reasons is sufficient to enable the applicant to understand the reasons why the Board of Appeal considered that it was possible to establish a link between the sales figures announced in that affidavit and the goods covered by the earlier mark, how the other evidence adduced made it possible to substantiate that affidavit and, therefore, how the use of the earlier mark was not merely token. It is also sufficient to enable the Court to exercise its review. Indeed, the Board of Appeal set out to a sufficient standard, on the basis of an overall assessment of the evidence, the reasons which led it to make that finding.
58      As regards the substance, in order to assess the extent of use of a trade mark, account must be taken, in particular, on the one hand, of the commercial volume of all the acts of use and, on the other hand, of the duration of the period in which those acts of use occurred and the frequency of those acts (judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 35, and of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 41).
59      It should be noted that the provision of accounting documents setting out sales figures or invoices is not necessary for the purposes of establishing genuine use of the mark. According to the case-law, the assessment of the extent of use 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. In certain circumstances, even circumstantial evidence such as catalogues referring to the mark, although it does not provide direct information as to the quantity of goods actually sold, may, by itself, suffice to show the extent of use in the context of an overall assessment (see judgment of 23 October 2017, Galletas Gullón v EUIPO – O2 Holdings (Shape of a packet of biscuits), T‑418/16, not published, EU:T:2017:746, paragraph 60 and the case-law cited).
60      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. As a result, use of the earlier mark need not always be quantitatively significant in order to be deemed genuine (judgments of 8 July 2004, HIPOVITON, T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42). Even minimal use can, therefore, 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 is, therefore, not possible to set out a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether use is genuine or not, with the result that a de minimis rule, which would not allow EUIPO or, in an action before it, the General 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).
61      Consequently, in the light of the case-law cited in paragraph 59 above, the applicant’s argument alleging failure to produce accounting documents or invoices must be rejected and it must be determined whether, in the circumstances of the present case, the evidence adduced is sufficient to demonstrate use of the earlier mark which is not merely token.
62      In the present case, the affidavit refers to the sales table, which shows a turnover of several million euros, despite a decline during the relevant period. In that regard, the applicant’s argument based on such a decline must be rejected, having regard to the case-law referred to in paragraph 60 above.
63      Furthermore, while it is true that those figures are not supported by invoices or balance sheets filed with the Chamber of Commerce, the other evidence shows use of the earlier mark which cannot be regarded as merely token.
64      Indeed, it is clear from the screenshots from the website of the proprietor of the earlier mark that that mark was used consistently throughout the relevant period for clothing items and that it was linked to a large number of goods which could be purchased over the internet. That evidence contains precise information on the goods offered for sale under that mark, their price and the way in which they are marketed, particularly in Germany. Thus, by way of example, one of those screenshots indicates that, as at 22 October 2020 alone, 420 product references were offered under that mark. Some of those screenshots also contain a reference to a customer support line for Germany, Luxembourg and Austria, which shows outward use of the mark, and intended for end consumers, even though the proprietor of the earlier mark has not provided any indication as to the number of visits to that website.
65      In addition, the proprietor of the earlier mark produced a significant number of catalogues, distributed in 2017, 2018, 2021 and 2022, and newsletters, which substantiate the fact that it had made real efforts to maintain or create market shares under that mark during the relevant period, within the meaning of the case-law cited in paragraph 60 above.
66      Thus, it is apparent from that evidence that, contrary to what the applicant claims, it is possible to establish a link between the goods marketed under the earlier mark during the relevant period and the sales figures in the affidavit relating to that period. Although those sales figures concern sales made in respect of all the goods marketed under that mark, without distinguishing the type of item concerned, it is clear that at least some of the sales result from the placing on the market of the goods appearing on the website of the proprietor of that mark. It cannot, therefore, be disputed that a large number of goods were offered to end consumers under the earlier mark on the market during that period. Consequently, in the circumstances of the present case, the lack of data as to the quantity of goods actually sold is made up for by the consistent use of the earlier mark, demonstrated by that evidence.
67      That conclusion is not called into question by the applicant’s argument that part of the sales table refers to sales made in respect of goods bearing the sign my own essentials and not under the earlier mark. In that regard, it is sufficient to state that, although the Board of Appeal noted that that table related both to the earlier mark and to goods bearing that sign, it referred only to the goods marketed under the earlier mark. In any event, first, the sales figures relating to the earlier mark alone, to the exclusion of the figures relating to the sign my own essentials, nevertheless amount to several million euros and, second, the other evidence relates, essentially, to the earlier mark, and not to the marketing of goods bearing such a sign.
68      Consequently, the Board of Appeal did not make any error of assessment in finding that the evidence adduced by the proprietor of the earlier mark demonstrated use of that mark which is not merely token.
Use of the mark in connection with ‘outerwear for women’ in Class 25
69      The applicant submits, first, that the reasons which enabled the Board of Appeal to conclude that the earlier mark had been put to genuine use in connection with ‘outerwear for women’ in Class 25 are unclear. Second, it submits that the evidence refers to goods which are not covered by that mark, with the result that it does not serve to prove genuine use of that mark. Third, according to the applicant, the goods referred to in the evidence, such as T-shirts or trousers, do not constitute ‘outerwear’ in Class 25. It takes the view that that subcategory refers only to items of clothing such as raincoats or overcoats, worn over other clothing.
70      EUIPO disputes the applicant’s line of argument.
71      First, it should be noted that the Board of Appeal set out clearly and sufficiently its reasoning leading to the conclusion that use of the earlier mark had been proved only for the subcategory of ‘outerwear for women’. It thus found that, although the registration of that mark covered all the goods referred to in paragraph 5 above, genuine use had been demonstrated only in respect of women’s ‘shirts, blouses, scarfs, jackets, trousers, pullovers, skirts’, in Class 25. In reaching that finding, it relied at the same time on the screenshots from the website of the proprietor of the earlier mark, the catalogues and the newsletters. Subsequently, it found that those goods were all ‘outerwear for women’, which constituted a homogenous subcategory of ‘outerwear and underwear for men, women and children’ in Class 25, in respect of which the earlier mark is registered. The Board of Appeal therefore held that genuine use of the earlier mark had been demonstrated in connection with ‘outerwear for women’ in that class.
72      Accordingly, since such a statement of reasons is sufficient to enable the applicant to understand the reasons why the Board of Appeal considered that genuine use of the earlier mark had been demonstrated in respect of ‘outerwear for women’ in Class 25 and the Court to exercise its review, the applicant’s argument alleging a failure to state reasons must be rejected.
73      Second, as observed by EUIPO, it should be noted that the evidence, and in particular documents 17 to 19, refer to the placing on the market under the earlier mark of a very wide range of clothing for women, consisting, by way of example, of jackets, dresses, shirts, coats, scarves or trousers. This is borne out by catalogues and newsletters, which relate to the same type of goods.
74      Third, as regards whether such goods are included in the subcategory of ‘outerwear for women’ in Class 25 covered by the earlier mark, it should be noted that the scope of protection under trade mark law is determined by the usual meaning of a term designating a category of goods or services. Thus, only goods and services corresponding to the usual meaning of that term may be regarded as falling within that category, at the risk, otherwise, of unjustifiably maintaining the rights of the proprietor in respect of a category of goods or services for which genuine use would not have been demonstrated (see, to that effect, judgment of 17 March 2021, Alvargonzález Ramos v EUIPO – Ursus-3 Capital, A. V. (URSUS Kapital), T‑114/20, not published, EU:T:2021:144, paragraph 37 and the case-law cited).
75      In the present case, according to the Collins English Dictionary, to which both EUIPO and the applicant refer, ‘outerwear’ may, admittedly, be defined as ‘garments, as raincoats or overcoats, worn over other clothing for warmth or protection outdoors’, but may also be defined as ‘clothing that is not worn underneath other clothing’.
76      Accordingly, the applicant’s interpretation that ‘outerwear’ is limited exclusively to coats and overcoats cannot succeed.
77      Furthermore, as EUIPO correctly noted, the original wording in German of the goods covered by the earlier mark, namely ‘Ober- und Unterbekleidungsstücke’ (outerwear and underwear) differentiates between outerwear and underwear, which confirms the fact that those goods are not limited to coats or overcoats.
78      Accordingly, the applicant’s argument that the subcategory of ‘outerwear for women’, accepted by the Board of Appeal, does not in any way cover the goods in respect of which use of the earlier mark has been demonstrated must be rejected.
79      That conclusion is not called into question by the fact that some of the goods included in that subcategory and included in the evidence, such as trousers or T-shirts, are not individually covered by the earlier mark. Indeed, those goods are included in the more general category of ‘outerwear’ covered by that mark.
80      Having regard to all of the foregoing, the second plea in law and, consequently, the action in its entirety must be dismissed.
Costs
81      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.
82      Although the applicant has been unsuccessful, EUIPO has applied for it to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was convened, it is appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Centex SpA and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.
De Baere
Petrlík
Kecsmár
Delivered in open court in Luxembourg on 12 November 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.