JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
11 March 2026 (*)
( EU trade mark – Revocation proceedings – EU word mark MOSTOSTAL – No genuine use of the trade mark – No proper reasons for non-use – Article 51(1)(a) of Regulation (EC) No 207/2009 )
In Case T‑663/24,
Mostostal S.A., established in Warsaw (Poland), represented by C. Saettel and K. Krawczyk, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and V. Ružek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Mostostal Siedlce sp. z o.o., established in Siedlce (Poland), represented by K. Veranneman and E. de
Dampierre, lawyers,
THE GENERAL COURT (Sixth Chamber),
composed of P. Škvařilová-Pelzl (Rapporteur), President, I. Nõmm and D. Kukovec, Judges,
Registrar: J. Čuboň, Administrator,
having regard to the written part of the procedure,
further to the hearing on 12 November 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Mostostal S.A., seeks the annulment of the decision of the first Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 October 2024 (Case
R 2453/2019-1) (‘the contested decision’).
Background to the dispute
History of the sign Mostostal
2        The name Mostostal is a combination of the Polish words ‘most’, meaning ‘bridge’, and ‘stal’, meaning ‘steel’, which appeared at the end of the Second World War. It refers to an initiative of the Polish authorities to set up a public entity with the task of rebuilding the bridges destroyed during the war. The entity, then named Mostostal, which was established in 1945 in Kraków (Poland), had 28 offices across Poland that specialised in the construction sector. The first registration of the compound word ‘Mostostal’ as an individual trade mark dates back to 1964. The trade mark was registered with the Urząd Patentowy Rzeczypospolitej Polskiej (Polish Patent Office) on 11 May 1964 under number
R 044372 for goods and services in Class
16. In 1973, Wytwórnia Lekkich Konstrukcji Stalowych (WLKS) was set up in Siedlce (Poland); it was the predecessor in law of the intervener, Mostostal Siedlce sp. z o.o., which produced steel and was a former member of Zrzeszenia Mostostal (‘the Mostostal association’). In 1993, WLKS became a private company called Mostostal Siedlce S.A., which later merged with Polimex Cekop S.A. in 2004.
3        In 1984, the Mostostal association filed an application for registration of the trade mark MOSTOSTAL (a collective mark registered under number R-300, one of the proprietors of which was WLKS) with the Polish Patent Office. After the fall of the Iron Curtain in 1989, the Mostostal association was dissolved. The trade mark was therefore not renewed, and it expired in 1994. Nevertheless, after its expiry, one of the members of that association, named Mostostal Projekt S.A., applied for registration of the following trade marks with the Polish Patent Office:
–        the figurative mark reproduced below, applied for on 25 February 1994 and registered on 25 November 1995 under number
R 87887, designating goods and services in Classes 2, 16, 37 and 42;
–        the word mark MOSTOSTAL, applied for on 23 March 1994 and registered on 23 September 1997 under number
R 97850, covering goods and services in Classes
37 and 42 (together, ‘the Polish trade marks’).
4        On 18 October 1996, Mostostal Projekt and 14 former members of the Mostostal association signed a multilateral agreement governing the use of the Polish trade marks, which allowed them to continue their business activity (‘the Multilateral Agreement’).
5        In 2003, Mostostal Projekt went into liquidation. The applicant then attempted to acquire the rights to the Polish trade marks from Mostostal Projekt.
6        In 2007, the Polish trade marks were acquired by Mostostal Aluminium Sp. Z.o.o., which is part of the applicant’s group, at a public auction organised for the purpose of the liquidation proceedings.
7        On 24 August 2010, the applicant filed an application for registration of the word sign MOSTOSTAL with EUIPO.
8        On 20 May 2011, the word sign MOSTOSTAL was registered as an EU trade mark.
Procedure before EUIPO
9        The goods and services covered by the contested mark were in Classes
6, 11, 19, 35, 36, 37, 39, 42 and 44 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, for each of those classes, to the following description:
–        Class
6: ‘Metal building materials; Transportable structures of metal, buildings of metal and framework of metal for building; Duckboards of metal; Building elements of metal, building panels of metal; Transportable buildings of metal; Reinforcing materials, of metal, for concrete and for building; Non-electric conduits, cables and wire of common metal; Nails, screws, fittings, ironmongery, small items of metal hardware, pipes and tubes of metal, metal elements for building installations; Roof flashing of metal; Metal ropes; Fittings of metal for building; Fences of metal; Tanks of metal, containers of metal (storage, transport), window frames of metal, doors and gates of metal; Safety boxes, safes (strong boxes), jalousies of metal, tanks of metal, containers of metal (storage, transport), metal ores’;
–        Class
11: ‘Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, for water supply and installations for sanitary purposes’;
–        Class
19: ‘Building materials (non-metallic), building panels, not of metal, framework and posts, not of metal, non-metallic transportable buildings, transportable buildings of wood; Non-metallic rigid pipes for building; Concrete, concrete building elements, gypsum, goods of concrete and gypsum, cement, lime, tiles, terracotta, sandstone, semi-finished products for building, blocks, bricks, airbricks; Natural stone, marble and granite for building, mantlepieces, containers of stone; Semi-finished products of wood: sawn timber, beams, boards, slabs, veneers; Materials for fitting floors, of wood and not of metal, namely slabs, boards, parquet floor boards; Wall claddings, not of metal, partitions, not of metal, building glass, windows and doors, of wood and not of metal, jalousies of plastic, gutters, not of metal; Roof coverings, not of metal; Road-making materials, asphalt, pitch and bitumen, paving stones; Gates and fences, not of metal’;
–        Class
35: ‘Business management and organisation consultancy in the field of building investment; Development services, namely management and organisation consultancy for construction businesses, providing information on construction businesses; Market research and opinion polling in the field of construction and development services; Wholesale and retail of building materials, installation articles for heating, cooling, gas, electric and air-conditioning installations; Holding company services, namely business management; Management and updating of computer databases’;
–        Class
36: ‘Real-estate brokerage; Real estate appraisal, appraisal of industrial constructions and buildings; Investment consultancy, namely capital investments; Retail real estate investment; Development services, namely creating and raising capital, brokerage in obtaining real estate for building investments, brokerage in the conclusion of sales and rental contracts in the field of real estate, residential premises, commercial and service premises; Management and administration of residential and office buildings, rental and brokerage in renting residential and office buildings; Administration and rental of commercial premises; Insurance brokerage in the field of real estate; Substitute investor services, namely managing the financial aspects of building investments on behalf of the principal; Holding company services, namely financial management, real estate management, financial management, mutual funds, financial transaction settlement, issuing financial guarantees; Purchase and resale of real estate’;
–        Class
37: ‘Development services, namely building construction supervision; Construction supervision services; Building construction, namely construction of new buildings, building installations, rebuilding, renovation, repair, interior cleaning and renovation; construction and repair in relation to buildings and bridges, assembly of scaffolding, building insulation, construction masonry, fitting electrical installations in buildings and structures and electric signalling installations, fitting water and sewage and gas installations; Installation, repair and maintenance of passenger and cargo lifts, lifts and escalators; Construction joinery, plastering, stucco plastering, floor laying, wallpapering, wall surfacing, painting; Building demolition, industrial construction, installation, maintenance and repair of machines and vehicles relating to building construction; Installation and repair of electric apparatus, assembly and repair of heating installations, rustproofing; Road construction and surfacing of roads and sports venues, railway construction, pipeline construction and maintenance, general building construction in the field of power lines, electric traction lines and telecommunication lines – routing and local, water engineering and mining construction, rental of construction machines and equipment, including rental of bulldozers, cranes and diggers, vehicle maintenance and repair; Maintenance of residential and office buildings, namely interior and exterior repair, cleaning and renovation of buildings’;
–        Class
39: ‘Parking place and garage rental; Warehousing and storage of goods, transport, carting and unloading cargo, hauling, truck rental and rental of other vehicles for locomotion by land; Specialist transport of ready-mixed concrete, transport of ready-mixed concrete by self-emptying vehicles; Delivery to order of furnishings, furniture and decoration articles for residential, office and commercial interiors’;
–        Class
42: ‘Scientific and technological services and research and design services relating thereto; Industrial analysis and research services; Design and development of computer hardware and software; Decoration and design of residential, office and commercial interiors; Architectural and construction design, on-site supervision (technical supervision); Construction drafting, building structure design, metal structure design; Building construction consultancy in the field of building construction development; Technical project studies, technical research, engineering, geological surveys and land surveying; Design and installation of computer software; Design, installation, updating, maintenance and duplication of computer software, computer software consultancy; Compilation of computer databases; Computer systems design, rental of computer software, computer rental, creating, maintaining and providing websites for others’;
–        Class
44: ‘Site planning, landscape design and design of areas around buildings’.
10      On 24 May 2017, the intervener filed an application with EUIPO for revocation of the contested mark in respect of part of the goods and services referred to in paragraph 9 above, namely all the goods and services in Classes
6, 11, 19, 35 and 39, on the basis of Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended, on the ground that that mark had not been put to genuine use within the meaning of that provision.
11      By decision of 9 September 2019, the Cancellation Division upheld the application for revocation in its entirety. It revoked the contested mark, with effect from 24 May 2017, in respect of all the contested goods and services.
12      On 30 October 2019, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division.
13      By the contested decision, the Board of Appeal dismissed the appeal. It found, in essence, that the contested mark had not been used outwardly, that it had been used as a company name and that there were no proper reasons for non-use.
Forms of order sought
14      The applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, annul the contested decision in part
in so far
as the Board of Appeal dismissed the appeal regarding the services in Class
35;
–        order EUIPO and the intervener to pay the costs, including those incurred before the Board of Appeal.
15      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.
16      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred before the Board of Appeal.
Law
Determination of the substantive and procedural law applicable ratione temporis
17      Given the date on which the application for revocation at issue was filed, that is to say,
24 May 2017, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 6 June 2019, Deichmann v EUIPO, C‑223/18 P, not published, EU:C:2019:471, paragraph 2, and of 3 July 2019, Viridis Pharmaceutical v EUIPO, C‑668/17 P, EU:C:2019:557, paragraph 3). Consequently, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decision, and by the parties in their written pleadings, to the provisions 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) must be understood as referring to the substantively identical provisions of Regulation No 207/2009.
18      Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the case is governed by the procedural provisions of Regulation 2017/1001.
The application for annulment of the contested decision
19      The applicant relies on two pleas in law, the first alleging infringement of Article 94(1) of Regulation 2017/1001 and the second alleging infringement of Article 51(1)(a) of Regulation No 207/2009.
The first plea in law, alleging infringement of Article 94(1) of Regulation 2017/1001
20      By its first plea, alleging infringement of Article 94(1) of Regulation 2017/1001, the applicant claims that the Board of Appeal vitiated its decision by a failure to state reasons as regards the assessment of the evidence submitted to demonstrate genuine use of the contested mark. The applicant complains that the Board of Appeal took into account only 6 of the 21 items of evidence which had been submitted to it. It considers that it submitted a significant amount of evidence and claims that it referred to items of evidence submitted in other proceedings before EUIPO, which are reproduced specifically in Annexes A.17 and A.21 to the application initiating proceedings before the General Court, and which, had they been taken into account, would have been decisive for the purposes of proving genuine use of the contested mark. According to the applicant, the Board of Appeal was required to explain the reasons which led it to find that some of that evidence was not relevant and, therefore, should not be taken into account in its examination.
21      EUIPO and the intervener dispute the applicant’s arguments and contend, in essence, that Annexes A.17 and A.21 to the application are inadmissible, since the content of those annexes was, in essence or in part, produced for the first time before the Court.
22      The first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. Its purpose is twofold: first, to enable the persons concerned to ascertain the reasons for the measure taken in order to defend their rights; and, second, to enable the EU Courts to exercise their power to review the legality of the decision. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether it 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 judgment of 12 March 2020, Maternus v EUIPO – adp Gauselmann (Jokers WILD Casino), T‑321/19, not published, EU:T:2020:101, paragraph 15 and the case-law cited; see also, to that effect, judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraphs 64 and 65 and the case-law cited).
23      According to the case-law, the obligation to state reasons does not require the Boards of Appeal to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. It is sufficient to set out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 15 January 2015, MEM v OHIM (MONACO), T‑197/13, EU:T:2015:16, paragraph 19 and the case-law cited). Moreover, the statement of reasons may be implicit, provided 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 (see judgment of 23 October 2024, Vinatis v EUIPO – Global Rambla Restauración (VINATIS), T‑605/23, not published, EU:T:2024:717, paragraph 18 and the case-law cited).
24      Moreover, the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasons given are correct, which goes
to the substantive legality of the contested measure (see judgment of 31 October 2019, Repower v EUIPO, C‑281/18 P, EU:C:2019:916, paragraph 33 and the case-law cited). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, those errors will vitiate the substantive legality of the decision, not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgments of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited, and of 26 September 2017, La Rocca v EUIPO (Take your time Pay After), T‑755/16, not published, EU:T:2017:663, paragraph 42 and the case-law cited).
25      The first plea in law must be examined in the light of those considerations.
26      In the first place, as regards the admissibility of certain items of evidence, EUIPO argues that Annexes A.17 and A.21 to the application are inadmissible since they were, in essence, submitted for the first time before the Court. EUIPO claims that, when the applicant referred to evidence submitted in other proceedings conducted before EUIPO, namely opposition proceedings B 2 505 298 and B 2 606 310 and cancellation proceedings No 19 925 C, it failed to indicate in a clear and precise manner to which evidence it was referring.
27      The intervener also argues that Annex A.21 is inadmissible in its entirety. It also states that only pages 662 to 821 of Annex A.17 had been submitted by the applicant in the revocation proceedings before EUIPO and that they overlap with the content of Annex A.7. Furthermore, the intervener argues that, although the applicant referred to evidence submitted in other proceedings before EUIPO, the lack of precision in its references meant that it was not possible for the Board of Appeal to determine what that evidence was. Therefore, in essence, the applicant cannot rely on this set of circumstances in order to submit, before the Court, evidence which was not submitted during the revocation proceedings before EUIPO and which is a reproduction of evidence submitted in other proceedings. According to the intervener, accepting that evidence would misrepresent the facts on which the contested decision was based.
28      The purpose of actions before the Court under Article 72(2) of Regulation 2017/1001 is to obtain a review of the legality of decisions of the Boards of Appeal. Pursuant to Article 95 of Regulation 2017/1001, that review must be carried out in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 1 February 2005, SPAG v OHIM – Dann and Backer (HOOLIGAN), T‑57/03, EU:T:2005:29, paragraph 17 and the case-law cited). It follows that the Court may not annul or alter a decision against which an action has been brought on grounds which come into existence subsequent to its adoption (judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 55, and of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 53).
29      Therefore, it is not the Court’s function to review the facts in the light of documents adduced for the first time before it. To allow the examination of such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ submissions may not alter the subject matter of the proceedings before the Board of Appeal. Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see judgment of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).
30      In the present case, it is apparent from EUIPO’s file that, in the revocation proceedings, the applicant merely referred to the existence of opposition proceedings and referred generally to all the evidence submitted to EUIPO in those proceedings. Furthermore, as the applicant confirmed at the hearing, making a general reference in its pleadings to all the evidence submitted in opposition proceedings, without providing that evidence in the context of the proceedings at issue, was sufficient, in its view, to consider that it had discharged its burden of proof.
31      Although it may be permissible to take account of evidence submitted in the context of other inter partes proceedings, it is subject to a requirement of clarity and precision (see, by analogy, judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraph 73). It is necessary that the particulars on which a party bases its arguments be indicated coherently and intelligibly in its pleadings. Furthermore, according to the case-law, in order to ensure legal certainty and the sound administration of justice, the summary of the applicant’s pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence (see, to that effect, judgment of 11 July 2019, Hauzenberger v EUIPO (TurboPerformance), T‑349/18, not published, EU:T:2019:495, paragraph 11 and the case-law cited).
32      In that regard, failing any
specific references to the evidence referred to, which it is claimed was submitted in the context of other proceedings before EUIPO, EUIPO was not required to seek and identify in the administrative files of those proceedings the evidence which it could have regarded as relevant in support of the arguments on which the action was based. It follows that the Board of Appeal did not err in law in that regard.
33      It should be borne in mind that the applicant confirmed, at the hearing, that it submitted the evidence at issue, which had not been examined by the Board of Appeal, for the first time before the Court. As a result, as stated in the arguments put forward by the intervener and in the light of the case-law cited in paragraphs 28 and 29 above, the late submission of that evidence before the Court alters the subject matter of the dispute brought before it.
34      Consequently, Annex A.21 and pages 346 to 661 and 822 to 1426 of Annex A.17 must be declared to be inadmissible, in so far as they were submitted for the first time before the Court.
35      On the other hand, pages 662 to 821 of Annex A.17 overlap with the evidence submitted in Annex A.7 and were already in EUIPO’s file, and so must be declared admissible.
36      In the second place, as regards the alleged failure to state reasons in the contested decision as regards the taking into consideration of certain items of evidence, it must be borne in mind that, under Rule
22(3) and (4) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), applicable to revocation proceedings pursuant to Rule
40(5) of that regulation, proof of genuine use of a trade mark must relate to the place, time, extent and nature of use of the mark and is, in principle, confined 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 78(1)(f) of Regulation No 207/2009.
37      It is not necessary for each item of evidence to give information about all four elements to which the proof of genuine use must relate, namely the place, time, nature and extent of use. 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. The question whether a trade mark has been put to genuine use requires that an overall assessment be carried out, taking into account all the relevant factors. Thus each piece of evidence is not to be analysed separately, but rather together, in order to determine the most likely and coherent meaning (see judgment of 17 July 2024, W.B. Studio v EUIPO – E.Land Italy (BF BELFE), T‑54/23, not published, EU:T:2024:481, paragraph 22 and the case-law cited).
38      In the present case, first, the Board of Appeal found, in paragraph 39 of the contested decision, that the applicant had not validly challenged the Cancellation Division’s assessments relating to the goods and services in Classes
6, 11, 19 and 39. In those circumstances, the Board of Appeal, finding no apparent error in the Cancellation Division’s assessments, fully endorsed all its findings.
39      Secondly, the Board of Appeal found, in paragraph 51 of the contested decision, that the applicant itself claimed, as is apparent from paragraph 37 of the contested decision, that the evidence submitted in the revocation proceedings before EUIPO was intended to demonstrate genuine use of the contested mark for some of the services in Class
35, namely the services of ‘business management and organisation consultancy in the field of building investment’, ‘management and organisation consultancy for construction businesses, providing information on construction businesses (as a subcategory of development services)’ and ‘business management (as a subcategory of holding companies services)’ (‘the relevant services’).
40      Thirdly, the Board of Appeal referred, in paragraph 52 of the contested decision, to all the evidence produced by the applicant on 11 October 2017, 12 December 2017 and 8 October 2018 before the Cancellation Division, and to the additional evidence produced before it together with the statement of grounds of appeal. That finding alone is sufficient, as EUIPO points out, to find that the Board of Appeal implicitly but necessarily assessed all the evidence submitted to it in order to conclude that it contained no information relating to the extent or nature of use of the contested mark.
41      Furthermore, the Board of Appeal also set out, in paragraph 53 of the contested decision, the reasons why it considered that the historical documents submitted by the applicant, such as a multilateral agreement of 1996 and correspondence between the applicant and the intervener dating from 2003 or 2007, could not be regarded as evidence of genuine use of the contested mark.
42      Fourthly, in paragraph 59 of the contested decision, the Board of Appeal found that the only relevant evidence containing information relating to the nature and use of the contested mark were invoices and contracts in items 1 to 6 in the set of evidence produced before the Cancellation Division on 12 December 2017 and relating to the relevant services.
43      In that regard, the Board of Appeal provided a clear and reasoned explanation, in paragraphs 60 to 68 of the contested decision, of the reasons why some of that evidence did not provide sufficient information on the nature and extent of use of the contested mark.
44      In addition, fifthly, the Board of Appeal also provided a clear and reasoned assessment, in paragraphs 70 to 78 of the contested decision, of the applicant’s arguments relating to proper reasons for non-use, by referring, in detail, to the case-law and to the applicable legal framework on which the Board of Appeal based its examination and assessments.
45      In view of all of the foregoing, it must be held that the Board of Appeal examined the appeal brought before it in the light of all the factors which it considered to be of decisive importance in the context of the decision, with the result that the applicant and the intervener were able to understand the reasons for the decision, and that that statement of reasons also enables the Court to exercise its power of review, in line with the case-law cited in paragraphs 23 and 24 above.
46      Accordingly, the Board of Appeal did not fail to fulfil its obligation to state reasons and it examined the appeal brought before it in a complete and reasoned manner. The first plea therefore lacks any foundation in law and must be rejected.
The second plea in law, alleging infringement of Article 51(1)(a) of Regulation No 207/2009
47      By its second plea, alleging infringement of Article 51(1)(a) of Regulation No 207/2009, the applicant claims that the Board of Appeal made several errors of assessment which led it to conclude that the contested mark had not been put to genuine use, at least in respect of the relevant services, and, in addition, to conclude that there were no proper reasons for non-use of that mark in respect of the other goods and services.
48      According to the applicant, first, the Board of Appeal was required to take into account, in its examination, the evidence relating to the period before the relevant period in order to determine the nature of use of the contested mark. Secondly, the applicant complains that the Board of Appeal failed to consider that the contested mark had been used outwardly. In addition, thirdly, the Board of Appeal made an error of assessment in finding, in paragraph 64 of the contested decision, that even if the use of the contested mark were considered ‘external’, the evidence submitted was not sufficient convincingly to prove genuine use. Fourthly, the applicant claims that the Board of Appeal made an error of assessment in finding that there were no proper reasons for non-use.
49      EUIPO and the intervener dispute that plea, maintaining that the Board of Appeal did not err in its assessment of the evidence provided.
50      Under Article 51(1)(a) of Regulation No 207/2009, the rights of the proprietor of the 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.
51      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 compared to 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 undertakings actually use on the market to distinguish their goods and services in economic life (see judgment of 7 May 2025, RTL Group Markenverwaltung v EUIPO – Örtl (RTL), T‑1088/23, EU:T:2025:446, paragraph 93 and the case-law cited).
52      According to settled case-law, there is genuine use of a mark, within the meaning of Article 51(1)(a) of Regulation No 207/2009, where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods and services for which it is registered, in order to create or preserve an outlet for those goods and services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Furthermore, 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 2 July 2025, Ferrari v EUIPO – Hesse (TESTAROSSA), T‑1103/23, EU:T:2025:659, paragraph 20 and the case-law cited).
53      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 in the course of trade 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 2 July 2025, TESTAROSSA, T‑1103/23, EU:T:2025:659, paragraph 22 and the case-law cited).
54      In proceedings for revocation of a mark, it is, in principle, for the proprietor of the mark to prove genuine use of that mark (see judgment of 23 January 2019, Klement v EUIPO, C‑698/17 P, not published, EU:C:2019:48, paragraph 57 and the case-law cited).
55      Furthermore, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned. It is therefore 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 (see judgment of 27 April 2022, LG Electronics v EUIPO – Anferlux-Electrodomésticos (SmartThinQ), T‑181/21, not published, EU:T:2022:247, paragraph 58 and the case-law cited).
56      In that regard, under Rule
22(2) and (3) of Regulation No 2868/95, applicable to revocation proceedings pursuant to Rule
40(5) of that regulation, the proof of use of a trade mark must concern the place, time, extent and nature of use of the mark and it is to be confined, in principle, 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 78(1)(f) of Regulation No 207/2009.
57      As has been pointed out in paragraph 37 above, it is not necessary for each item of evidence to give information about all four elements to which the proof of genuine use must relate. To that effect, 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. The question whether the contested mark has been put to genuine use requires that an overall assessment be carried out, taking into account all the relevant factors.
58      In the present case, both the Cancellation Division and the Board of Appeal considered that the relevant period referred to in Article 51(1)(a) of Regulation No 207/2009, in respect of which the applicant had to prove genuine use of the contested mark, ran from 24 May 2012 to 23 May 2017. Those assessments are well founded and, moreover, are not disputed by the parties.
59      In order to prove genuine use of the contested mark, the applicant submitted, during the revocation proceedings before EUIPO, several sets of evidence.
60      The first set of evidence, filed on 11 October 2017 before the Cancellation Division in response to the application for revocation, included the following:
–        Annex 1: the Multilateral Agreement (see paragraph 4 above);
–        Annex 2: transfer, dated 14 June 2007, of the Polish trade marks from Mostostal Projekt to Mostostal Aluminium (see paragraph 6 above);
–        Annex 3: notification of termination of the Multilateral Agreement, dated 30 April 2003;
–        Annex 4: correspondence between the applicant and the licensees of the Polish trade marks;
–        Annex 5: licences of the Polish trade marks granted by Mostostal Aluminium;
–        Annex 6: list of trade marks filed by potential licensees of the applicant;
–        Annex 7: observations filed by the applicant in opposition proceedings B 2 505 298 of 8 April 2015, in which it was the opponent;
–        Annex 8: decisions of the Polish Patent Office in Cases
R 87 887 and
R 97 850 concerning the Polish trade marks;
–        Annex 9: proof of use of the sign MOSTOSTAL by the applicant for services in Class
35 (undated images of company names, undated offer for sale of apartments in Warsaw, extracts from the Polish Court Register concerning companies of the Mostostal group, dated 2017).
61      The second set of evidence, filed before the Cancellation Division on 12 December 2017, included the following:
–        items
1 and 2: several invoices in Polish, dating from the period 2014 to 2017, issued to three companies for ‘cost of management according to the agreement’ and containing the Polish figurative mark MOSTOSTAL reproduced in paragraph 3 above;
–        items
3 and 4: agreements, in Polish with a translation, for providing business management services, concluded in November 2013 and June 2016;
–        item
5: loan agreement dated October 2013;
–        item
6: undated photographs showing company names including the term ‘mostostal’;
–        item
7(a) to (d): notarial acts and printouts from the Polish Court Register concerning Mostostal companies linked to the applicant, dated August 2016 and December 2017.
62      The applicant also referred to the evidence submitted in opposition proceedings B 2 505 298 of 8 April 2015 and B 2 606 310 of 9 November 2015.
63      The third set of evidence, filed on 8 October 2018 before the Cancellation Division, included the following:
–        the results of a market survey conducted between July and August 2017;
–        the applicant’s shareholder structure;
–        register data about the intervener which applied for revocation of the contested mark.
64      In that context, the applicant also referred to the evidence filed in cancellation proceedings No 19 925 C, brought against the contested mark.
65      Furthermore, the applicant attached to its statement of grounds of appeal before the Board of Appeal evidence which the Board of Appeal found, in paragraph 30 of the contested decision, to be admissible. The evidence in question consisted of the following:
–        Annex 1: extract from the national court register (number 341 646);
–        Annex 2: extract from the national court register (number 249 868);
–        Annex 3: extract of information relating to the national proceedings brought before the Sąd Okręgowy w Warszawie Wydział Gospodarczy (Regional Court, Warsaw, Poland (Commercial Division)) under reference XX
GC‑530/17.
66      At the outset, it is appropriate to endorse the Board of Appeal’s assessments in paragraphs 31 to 34 of the contested decision, which, moreover, are not disputed by the parties, granting the applicant’s request to refer to the evidence submitted only in general terms, without disclosing its content, pursuant to Article 114(4) of Regulation 2017/1001, since that evidence contained confidential commercial information.
–       The scope of the dispute
67      In paragraphs 36 and 37 of the contested decision, the Board of Appeal argued that the applicant did not submit any arguments against the Cancellation Division’s finding that the evidence did not prove use of the contested mark for any of the contested goods and services in Classes
6, 11, 19 and 39. In those circumstances, the Board of Appeal was right, in paragraph 40 of the contested decision, to limit the examination of the appeal brought before it solely to the services in Class
35.
68      Furthermore, it is apparent from paragraph 37 of the contested decision that, in its statement setting out the grounds of appeal before the Board of Appeal, the applicant expressly acknowledged before the Board that it had submitted evidence only in respect of some of the services in Class
35, namely the relevant services (paragraph 39 above).
69      In that regard, EUIPO and the intervener rightly observe that the applicant is claiming, in essence, effective use of the contested mark only for the relevant services. The arguments put forward by the applicant in its application before the General Court do not call that observation into question. It is apparent from paragraphs 48, 52, 63 and 65 of the application that, in that application, the applicant acknowledges that it provided proof of genuine use only in respect of some services in Class
35. That is borne out by the fact that, first, the applicant has claimed, in the alternative, that the Court should partially annul the contested decision to the extent that the contested mark had not been found to have been put to genuine use in respect of the services in Class
35 and, secondly, the applicant acknowledged expressly, in paragraph 71 of the application, that use of the contested mark to its full extent was, in essence, impossible, relying in that respect on the existence of proper reasons for non-use.
70      In those circumstances, the Court finds that the scope of the present action is limited to proof of genuine use of the contested mark in respect of the relevant services.
–       The time and place of use of the contested mark
71      The applicant claims that the Board of Appeal made an error of assessment in failing to take into account the overall historical and factual background, which it argues is decisive in proving that the contested mark was used during the relevant period. According to the applicant, the Board of Appeal should have taken into account all the evidence dating from the period before the relevant period, which provides useful information on the nature of use of that mark.
72      According to settled case-law, evidence dated outside the relevant period can be relevant only if it contains information concerning the use of the mark during the relevant period (see, to that effect, judgments of 23 September 2020, Polfarmex v EUIPO – Kaminski (SYRENA), T‑677/19, not published, EU:T:2020:424, paragraph 98, and of 10 January 2024, Levantur v EUIPO – Fantasia Hotels & Resorts (Fantasia BAHIA PRINCIPE HOTELS & RESORTS), T‑504/22, not published, EU:T:2024:2, paragraph 62; see also, to that effect and by analogy, order of 27 January 2004, La Mer Technology, C‑259/02, EU:C:2004:50, paragraph 31).
73      In the present case, in the first place, the Board of Appeal found, in paragraph 54 of the contested decision, that some items of evidence, in particular certain invoices and certain contracts, were dated from the relevant period. As regards the other evidence, the Board of Appeal did not make an error of assessment in finding, in paragraph 53 of the contested decision, that although the various historical documents, such as the Multilateral Agreement signed in 1996 and the correspondence of 2003 or 2007 between the applicant and the intervener, may have provided an insight into the relationship and conflicts between them, those documents were nevertheless irrelevant for the purpose of proving genuine use of the contested mark, registered in 2011. In any event, that evidence was not capable of demonstrating commercial longevity or of showing that the applicant was carrying out business activities based on the contested mark, and it did not prove use of that mark during the relevant period, with the result that it was unnecessary to take that evidence into account.
74      In the second place, the Board of Appeal found, in paragraph 55 of the contested decision, that all the evidence submitted concerned only the territory of Poland, which the applicant has not disputed.
75      Accordingly, there is no need to call into question the Board of Appeal’s assessments relating to the time and place of use of the contested mark, as set out in paragraphs 53 to 55 of the contested decision.
–       Nature of use
(1)    Public and outward use
76      In paragraph 59 of the contested decision, the Board of Appeal found that the only relevant evidence submitted in order to demonstrate genuine use of the contested mark for the services in Class
35 were items
1 to 6, produced before the Cancellation Division on 12 December 2017, the content of which is set out in paragraph 61 above.
77      However, the Board of Appeal noted, in paragraph 60 of the contested decision, that the vast majority of the 15 relevant invoices were issued to two entities belonging to the applicant’s group of companies. Furthermore, in accordance with the agreements produced before the Cancellation Division on 12 December 2017, the applicant was the sole partner of one of those entities and the vast majority of those invoices were issued to that entity. Those invoices concerned costs connected with the management of that entity, which was carried out by the same persons as those who provided that service to the parent company, namely the applicant. Two of the invoices referred to a rental fee.
78      As regards the invoices addressed to the other entity, the Board of Appeal correctly found, in paragraph 61 of the contested decision, that that entity was linked to the applicant, even though the sign MOSTOSTAL did not appear in its company name. Such a link could clearly be established in view of the identical address of that entity and the applicant, the presence of the same person on their board of directors and the use of the MOSTOSTAL logo on that entity’s door sign, as is apparent from the evidence provided by the applicant. Some of those invoices concerned company management services, which fall within the relevant services, while two others concerned construction works and their supervision, falling within Class
37 or 42.
79      Therefore, the Board of Appeal was fully entitled to conclude, in paragraph 62 of the contested decision, that the fact that the applicant used the sign MOSTOSTAL to manage its own group of companies and provide various services within that group did not amount to external use of the mark and could not be regarded as proof of genuine use of that mark.
80      In accordance with the case-law cited in paragraph 52 above, there is genuine use of a trade mark where it is used publicly and outwardly.
81      In that regard, the fact that the use of a trade mark must be public means that it must be external and obvious to actual or potential customers of the goods or services. Private use or use which is purely internal within an undertaking or group of undertakings does not constitute genuine use (see, to that effect, judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37, and of 9 December 2008, Verein Radetzky-Orden, C‑442/07, EU:C:2008:696, paragraph 22).
82      The applicant submits, in essence, that according to the case-law, the fact that goods or services provided by the proprietor of a trade mark are invoiced to a distribution company which is part of the same group, and which sells those goods or provides those services on the market, may amount to a method of business organisation which is common in the course of trade, and implies use of the mark which cannot be regarded as purely internal use by a group of companies, since the mark is also used outwardly and publicly. Furthermore, the use of the mark of a production company by a distribution company which is economically linked to it is presumed to be use of that mark with the consent of the proprietor and is therefore to be deemed to constitute use by the proprietor, in accordance with Article 15(2) of Regulation No 207/2009.
83      The applicant submits that it developed its business through a group of companies, by entering into service agreements with its subsidiaries, in order to provide various management services in the field of construction, which fall within Class 35. Under those agreements, the subsidiaries were granted the right to use the contested mark, of which the applicant is the proprietor. According to the applicant, those subsidiaries themselves have used the contested mark publicly in the course of their activities, which is clearly evidenced by the real-estate advertisements contained in Annex A.9 to the application, where the Polish figurative mark MOSTOSTAL is used.
84      It is true that the use of the mark concerned by a company which is economically linked to the proprietor of that mark is presumed to be use of that mark with the consent of the proprietor and is therefore to be deemed to constitute use by the proprietor, in accordance with Article 15(2) of Regulation No 207/2009 (see judgment of 7 May 2025, RTL, T‑1088/23, EU:T:2025:446, paragraph 62 and the case-law cited). However, recognition of such use necessarily requires proof that those subsidiaries use the mark concerned publicly and outwardly and provide the services covered by that mark on the market, which is not the case here. It is not apparent from the evidence submitted that the applicant’s subsidiaries offered the services in Class
35 to entities or external consumers, or even outside the group of companies to which they belonged.
85      In any event, the Board of Appeal did not make an error of assessment in finding, in paragraph 65 of the contested decision, that, even if read together, the invoices and contracts referred to by the applicant did not make it possible to determine the nature and scope of the services covered by those invoices. Moreover, mere photographs of door signs and the undated property brochure provided by the applicant are not sufficient to determine the nature of use of the contested mark. At most, examination of Annexes A.10 to A.13 to the application shows that the contested mark was used internally within the applicant’s group. In addition, the licence agreements submitted as Annex A.5 to the application expired in 2009, three years before the beginning of the relevant period, and cannot therefore
be taken into account for the purposes of demonstrating genuine use of the contested mark during the relevant period.
86      Furthermore, the applicant submits that public use of the contested mark is evidenced by the recognition of that mark by the general public, according to the results of the survey reproduced in Annex A.18 to the application. In that regard, the Board of Appeal did not make an error of assessment in finding, in paragraph 66 of the contested decision, that that survey, at best, indicates that the contested mark is recognised by the general public as a historic mark, more specifically for services in the building and construction sectors, but that that recognition does not constitute proof of genuine use of that mark during the relevant period. In particular, there is no evidence to link the general public’s recognition of the contested mark to the relevant services in the present case.
87      Moreover, the Board of Appeal correctly found, in paragraph 67 of the contested decision, that the fact that the applicant’s entry in the companies register listed the relevant services within its scope of activities showed, at most, the intention of its founders to provide such services. However, that fact alone is not sufficient to establish genuine use of the contested mark in respect of the relevant services during the relevant period.
(2)    Use of the sign as a trade mark
88      In paragraph 68 of the contested decision, the Board of Appeal noted that the contested mark had been used as a company name. It found that such use was not in accordance with the essential function of a trade mark, as established in the case-law cited in paragraph 52 above.
89      In the first place, the use of a sign as a company name, business name or trade name can be considered to be use as a trade mark, provided that the relevant goods or services themselves are identified and offered on the market under that sign (see, to that effect, judgment of 13 April 2011, Alder Capital v OHIM – Gimv Nederland (ALDER CAPITAL), T‑209/09, not published, EU:T:2011:169, paragraph 56). That condition is satisfied where the sign used as a company, trade or shop name is used in such a way as to establish a link between that sign and the goods marketed or the services provided (see, to that effect and by analogy, judgment of 11 September 2007, Céline, C‑17/06, EU:C:2007:497, paragraphs 21 to 23). For example, the use of a sign as a company name on the letterhead of order forms or invoices may, depending on the form in which the sign appears thereon, be sufficient to support genuine use of the mark concerned (see, to that effect, judgment of 6 November 2014, Popp and Zech v OHIM – Müller-Boré & Partner (MB), T‑463/12, not published, EU:T:2014:935, paragraphs 44 and 45).
90      However, in the present case, the fact that the invoices provided by the applicant feature the term ‘mostostal’ at the top left of the page is insufficient to establish that the contested mark was used in connection with the relevant services, in accordance with the essential function of a trade mark, which is to guarantee the identity of the origin of the goods and services for which it was registered. Indeed, the use of the term ‘mostostal’ as a company name, followed by a postal address and other company contact details, on the invoices in question gives the impression that that term designates a trade name, not a trade mark identifying the origin of the relevant services. Such use does not show that the contested mark was used in such a way as to establish a link between the mark and those services.
91      The Board of Appeal therefore did not make an error of assessment in finding, as the Cancellation Division did, that the contested mark did not identify the services referred to in the invoices, since that mark was shared by several companies and the relevant services were not identified and offered on the market under that sign.
92      In that regard, in the second place, it should be noted that the Board of Appeal found, in essence, in paragraph 65 of the contested decision, that the invoices submitted, read together with other relevant indications obtained from the various items of evidence, such as the contracts, did not make it possible to determine, clearly and objectively, the scope of the services allegedly provided.
93      According to the applicant, it would be unreasonable and contrary to market standards to expect more detailed descriptions in the context of a long-term business relationship between the parties in question, particularly within an intra-group context. According to the applicant, the Board of Appeal was required to take into account the market standards in its assessment.
94      As EUIPO and the intervener contend, in essence, there is nothing in the documents before the Court which provides specific and objective information relating to the collaboration between the companies in question and the description of the services contained in the invoices or the contracts, that makes it possible to determine the scope of those services. Furthermore, the nature of the services allegedly provided between those companies is described in a vague manner, which makes it impossible to link those services to any of the relevant services. Similarly, it does not follow from the corporate purpose set out in the applicant’s articles of association that the applicant is actually engaged in the activities it claims to carry out, or that it provides the services in question. In any event, as has already been stated in paragraph 87 above, that corporate purpose, which constitutes, at most, a mere declaration of intent, is not sufficient, in the present case, to prove genuine use of the contested mark, in accordance with its essential function, for the services for which it was registered.
–       Extent of use
95      The Board of Appeal found, in essence, in paragraph 64 of the contested decision, that, even if use of the mark were considered to be external, the very low number of invoices throughout the entire relevant period does not prove convincingly that a threshold of use aimed at creating or preserving an outlet for the services in question was reached.
96      According to the applicant, issuing 15 invoices during the relevant period, which equates to an average of 3 invoices per year over five years, is typical in an intra-group arrangement where annual payments have been agreed upon.
97      In the present case, it is sufficient to note that, on all the invoices at issue, which prove internal use of the contested mark, the amounts invoiced for the services allegedly provided have been redacted. Even if the number of invoices were sufficient, in this case, as evidence of genuine use of the contested mark, for the purposes of the case-law cited in paragraph 37, the fact that those amounts have been redacted makes it impossible to assess the commercial volume of the use and, therefore, to establish whether the applicant was actually engaged in the activity in question and made use of the contested mark during the relevant period in order to acquire a position on the market, to create or preserve an outlet in that market or sufficiently to maintain its rights to that mark.
98      In those circumstances, the Board of Appeal’s finding in paragraph 69 of the contested decision that the evidence submitted did not provide sufficient indications as to the extent of use contains no errors of assessment and must be upheld.
–       The existence of proper reasons for non-use
99      In paragraph 76 of the contested decision, the Board of Appeal found that there were no proper reasons for non-use of the contested mark, despite the efforts made by the applicant to defend and maintain its rights.
100    According to the applicant, it could not reasonably be expected, first, to invest in marketing activities using the contested mark, the validity of which had been challenged in several proceedings, which involved a significant risk of liability associated with such use and, secondly and concomitantly, to invest its resources in defending that mark before the various competent authorities. Furthermore, according to the applicant, the fact that it attempted to license the use of the contested mark, but was unsuccessful due to the long-standing conflicts with the other companies in the group or their successors and to the various legal actions brought, constitutes a reason for non-use. Those conflicts, which were beyond the applicant’s control, prevented use of the contested mark owing to the uncertainty regarding its rights and the consequences that could arise. In those circumstances, the applicant submits that the use of the contested mark, to its full extent, would have been, if not impossible, at least unreasonable.
101    According to the case-law, only obstacles having a sufficiently direct relationship with a trade mark making its use impossible or unreasonable, and which arise independently of the will of the proprietor of that mark, may be described as ‘proper reasons’ for non-use of that mark, within the meaning of Article 51(1)(a) of Regulation No 207/2009. A case-by-case assessment is necessary in order to determine whether a change in the strategy of the undertaking with a view to circumventing the obstacle under consideration would make the use of that mark unreasonable (see judgment of 13 December 2018, C=Holdings v EUIPO – Trademarkers (C=commodore), T‑672/16, EU:T:2018:926, paragraph 18 and the case-law cited).
102    As regards the concept of ‘unreasonable use’, the case-law makes clear that, if an obstacle is such as to jeopardise seriously the appropriate use of the mark, its proprietor cannot reasonably be required to use it nonetheless (see judgment of 21 May 2025, Bella Tawziaa II v EUIPO – Belkheir (ELSEBAE 4011 B552), T‑1085/23, not published, EU:T:2025:522, paragraph 76 and the case-law cited).
103    It is also apparent from the case-law of the General Court that the concept of ‘proper reasons’ refers more to circumstances unconnected with the trade mark proprietor rather than to circumstances associated with that proprietor’s commercial difficulties
(see judgment of 21 May 2025, ELSEBAE 4011 B552, T‑1085/23, not published, EU:T:2025:522, paragraph 77 and the case-law cited).
104    Furthermore, the concept of ‘proper reasons’ must not be interpreted broadly, in order to ensure that registered trade marks are actually used and, if not used, are revoked (see judgment of 21 May 2025, ELSEBAE 4011 B552, T‑1085/23, not published,
EU:T:2025:522, paragraph 78 and the case-law cited).
105    Lastly, it is for the proprietor of the mark at issue to submit to EUIPO sufficiently probative evidence of the existence of proper reasons for non-use of that mark (see judgment of 21 May 2025, ELSEBAE 4011 B552, T‑1085/23, not published,
EU:T:2025:522, paragraph 79 and the case-law cited).
106    In the present case, in the first place, it should be noted at the outset that the applicant contradicts itself in its arguments by claiming, first, that the contested mark was put to genuine use during the relevant period and, secondly, that the use of the contested mark, to its full extent, would have been ‘at least unreasonable, if not impossible’.
107    In the second place, as regards the applicant’s arguments relating to the existence of a number of proceedings which would place it at serious risk if it used the contested mark, it is necessary, in the light of the documents before the Court, first, to exclude from the examination of the present plea cancellation proceedings No 19 925 C which gave rise to EUIPO’s cancellation decision of 26 September 2019. The application for revocation of the contested mark was filed on 24 May 2017 and the relevant period for proving use of that mark runs from 24 May 2012 to 23 May 2017 (see paragraph 58 above), while cancellation proceedings No 19 925 C were initiated on 17 February 2018, after the end of the relevant period.
108    To that effect, secondly, it is apparent from the documents before the Court that only three sets of proceedings, including one national dispute, which took place during the relevant period may correspond to those referred to by the applicant. The first are opposition proceedings B 2 505 298, brought on 8 April 2015, the second are opposition proceedings B 2 606 310, brought on 9 November 2015, and the third is the dispute brought before the Polish courts concerning an agreement to transfer the contested mark from Mostostal Projekt to the applicant when Mostostal Projekt went into liquidation in 2003.
109    In that connection, as regards the proceedings before the Polish courts, it must be stated, first, that there is no evidence in the documents before the Court to substantiate the existence or scope of those proceedings and, secondly, as the intervener confirmed at the hearing, that those Polish proceedings were initiated after the relevant period, so that there is no need to take them into account in the examination of the present action.
110    Moreover, it must be observed that the evidence relating to opposition proceedings B 2 606 310 appears in Annex A.17 to the application, on pages 840 to 1426, which was declared inadmissible in paragraph 34 above owing to
its late submission, having been produced for the first time before the Court. Therefore, there is no need to take those proceedings into account in the examination of the present action.
111    In the third place, in so far as the only proceedings upon which the applicant could rely and which were brought during the relevant period are proceedings B 2 505 298, it is necessary to examine whether those opposition proceedings are capable of constituting a proper reason for non-use of the contested mark.
112    First, it must be pointed out, as observed by EUIPO at the hearing, that all the evidence referred to by the applicant in paragraph 23 of the application and produced before EUIPO in opposition proceedings B 2 505 298, some of which is, moreover, inadmissible for the reasons set out in paragraph 34 above, relates specifically to proof of use in respect of some of the services in Class
35, so that it is contradictory to regard that evidence as being relevant evidence in support of the arguments concerning the existence of proper reasons for non-use.
113    Secondly, and in any event, the applicant claimed again, at the hearing, that use of the contested mark would have been unreasonable since the intervener and a third party, with whom it is also involved in other proceedings, were accusing it of using the contested mark in bad faith based on various registrations of that mark. In that regard, in response to a question put at the hearing, the applicant stated that, if the opposition proceedings against it were successful, it would be required to pay damages to the opposing parties and would be prevented from pursuing some of its business activities. Furthermore, the applicant also claimed at the hearing that it had presented all of its arguments relating to the direct consequences of the ongoing proceedings as proper reasons for non-use before the Board of Appeal, which had not taken them into account.
114    In that regard, it must be observed at the outset, as EUIPO did at the hearing, that the applicant has not adduced evidence in support of its arguments that use of its mark was impossible. EUIPO rightly considered that the applicant’s arguments in its statement of grounds of appeal consisted of only one page, drafted in general terms, without any evidence, and that those arguments referred to the risk of having to pay damages or to other risks arising from the application of Polish competition law which were, at that stage, merely potential risks.
115    Moreover, it should be noted, as the Board of Appeal did in paragraph 76 of the contested decision, that the fact that the applicant was proactive in defending its rights cannot replace its legal obligation to make actual use of the contested mark.
116    The fact that, because of ongoing disputes, potential licensees might have been reluctant to sign agreements for use of the contested mark did not prevent the applicant itself or the entities related to it at that time from using the mark. Furthermore, the Court has already confirmed that the fact that revocation proceedings have been brought against a trade mark does not prevent the proprietor of that mark from using it (judgment of 18 March 2015, Naazneen Investments v OHIM – Energy Brands (SMART WATER), T‑250/13, not published, EU:T:2015:160, paragraph 71).
117    To that effect, thirdly, as regards the risks involved, it should be noted that, according to the case-law of the Court of Justice, the fact, on its own, that the claimed obstacle is independent of the will of the proprietor of the trade mark, although it admittedly constitutes a relevant factor for the purposes of verifying the existence of proper reasons justifying non-use of a trade mark, is nevertheless not sufficient for those purposes, since such an obstacle must also have a sufficiently direct relationship with that mark making its use impossible or unreasonable (judgment of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 97).
118    It is apparent from the documents before the Court, as the Board of Appeal correctly found in paragraph 78 of the contested decision, that the applicant, when acquiring and registering the contested mark, was aware of other entities’ possible claims to the mark MOSTOSTAL. In that regard, those circumstances cannot be considered to be sufficiently independent of the will of the applicant, within the meaning of the case-law cited in paragraph 101 above, since the emergence of such claims was a risk to which the contested mark was exposed in the course of trade, given its history and the various long-standing disputes.
119    Furthermore, as recalled in paragraph 113 above, the applicant claims that it runs the risk of being prohibited from pursuing some of its business activities or of having to pay damages to opponents if their opposition proceedings are successful. However, according to the case-law, an order to pay damages following opposition proceedings does not have a sufficiently direct link to that mark, for the purposes of the case-law cited in paragraph 117 above, to constitute a proper reason for non-use (see, by analogy, judgments of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 98, and of 18 March 2015, SMART WATER, T‑250/13, not published, EU:T:2015:160, paragraph 72).
120    Furthermore, according to the case-law, it was for the applicant to conduct an adequate assessment of its chances of prevailing in the proceedings, and to draw the appropriate conclusions from that assessment as to whether to continue to use its mark (see, by analogy, judgment of 18 March 2015, SMART WATER, T‑250/13, not published, EU:T:2015:160, paragraph 73).
121    In those circumstances, it must be held that the applicant has not submitted sufficient evidence of the existence of proper reasons for non-use of the contested mark during the relevant period, within the meaning of the case-law referred to in paragraphs 101 to 105 above.
122    Consequently, in the light of all of the foregoing, it is necessary to uphold the Board of Appeal’s finding, arising from paragraph 79 of the contested decision, that the applicant has not proved genuine use of the contested mark in respect of any of the relevant services or provided proof of the existence of proper reasons for non-use of that mark.
123    The second plea must therefore be rejected as lacking any foundation in law and, consequently, the action must be dismissed in its entirety.
Costs
124    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
125    Since a hearing was convened and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO and the intervener.
126    Moreover, although the intervener has applied for the applicant to be ordered to pay the costs relating to the proceedings before the Board of Appeal, it is sufficient to note that, since the present judgment is dismissing the action brought against the contested decision, it is the operative part of that decision which continues to determine the costs in question (see judgment of 13 March 2024, Kantstraße Paris Bar v EUIPO – Superstudio21 (Bar Paris), T‑117/23, not published, EU:T:2024:163, paragraph 108 and the case-law cited).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mostostal S.A. to pay the costs.
Škvařilová-Pelzl
Nõmm
Kukovec
Delivered in open court in Luxembourg on 11 March 2026.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.