JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
21 May 2025 (*)
( EU trade mark – Revocation proceedings – EU word mark AIRBNB – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 )
In Case T‑94/24,
Airbnb, Inc., established in San Francisco, California (United States), represented by M. Maier and A. Nordemann, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Stoyanova-Valchanova, D. Hanf and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Airtasker Pty Ltd, established in Sydney (Australia),
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse (Rapporteur) and I. Dimitrakopoulos, Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written part of the procedure,
further to the hearing on 19 November 2024,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Airbnb, Inc., seeks the annulment in part of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 December 2023 (Joined Cases R 886/2022-2 and R 893/2022-2) (‘the contested decision’).
Background to the dispute
2        On 15 September 2010, the applicant filed an application for registration of an EU trade mark with EUIPO pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
3        Registration as a mark was sought for the word sign AIRBNB.
4        The services in respect of which registration was sought are in Classes 35, 36, 38, 39, 41, 42, 43 and 45 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.
5        On 5 March 2020, the other party to the proceedings before EUIPO, Airtasker Pty Ltd, filed an application with EUIPO for revocation of that mark on the basis of Article 58(1)(a) of Regulation 2017/1001 for all the services in respect of which it was registered.
6        On 23 March 2022, the Cancellation Division upheld the application for revocation in part.
7        On 19 May 2022, Airtasker Pty filed a notice of appeal with EUIPO against the decision of the Cancellation Division (Case R 886/2022-2), in so far as the Cancellation Division had dismissed the application for revocation in part.
8        On 20 May 2022, the applicant also filed a notice of appeal with EUIPO against the decision of the Cancellation Division (Case R 893/2022-2), in so far as the Cancellation Division had upheld the application for revocation in part.
9        By the contested decision, the Board of Appeal, first, joined the two appeals referred to in paragraphs 7 and 8 above, second, dismissed the appeal in Case R 886/2022-2 in its entirety and, third, upheld the appeal in Case R 893/2022-2 in part by annulling the decision of the Cancellation Division in so far as it had revoked the contested mark in respect of certain services in Classes 35, 36, 39 and 43. It held that use of the contested mark had been proven for the following services:
–        Class 35: ‘Providing an online business information directory on the internet in relation to leisure activities; providing information, namely, compilations, rankings, ratings, reviews, referrals and recommendations relating to service providers using a global computer network in relation to leisure activities and temporary lodging; business management in relation to leisure activities; providing an online interactive website obtaining users comments concerning service providers in relation to temporary lodging and leisure activities; office functions in relation to leisure activities; online trading services to facilitate the sale of services by others via a computer network and providing evaluative feedback and ratings of sellers’ services, the value and prices of sellers’ services, buyers’ and sellers’ performance, delivery, and overall trading experience in connection therewith in relation to temporary lodging and leisure activities; computer services, namely, providing online computer databases and online searchable databases featuring consumer information on a wide variety of topics of general interest to the consuming public, namely in relation to temporary lodging and leisure activities; providing consumer service information via the internet in relation to temporary lodging and leisure activities; providing a searchable online evaluation database for buyers and sellers in relation to leisure activities’;
–        Class 36: ‘Providing an online interactive website featuring the listing and rental of temporary lodging; providing online computer database and online searchable databases featuring information, listings and announcements about housing, apartments, condominiums, townhouses; real estate rental services for temporary rental apartments, rooms in homes, sublets, vacation homes, cabins, and villas on a global computer network’;
–        Class 39: ‘Online travel arrangement in relation to temporary lodging and leisure activities; providing travel information via a global computer, namely, providing reviews and recommendations of local attractions (sightseeing services); online trip and travel recommendations and reservation services in relation to temporary lodging and leisure activities; providing travel information over global computer networks, namely, providing search services for travel listings, travel information and related travel topics in relation to temporary lodging and leisure activities’;
–        Class 43: ‘Arranging temporary housing accommodations’.
10      By contrast, the Board of Appeal held that the evidence provided by the applicant did not show genuine use of the contested mark and that the Cancellation Division had correctly revoked that mark in so far as it covered services in Classes 35, 36, 38 39, 41 and 43 corresponding, inter alia, for each of those classes, to the following description:
–        Class 35: ‘Providing an online business information directory on the internet except in relation to leisure activities; providing information, namely, compilations, rankings, ratings, reviews, referrals and recommendations relating to service providers using a global computer network except in relation to leisure activities and temporary lodging; business management except in relation to leisure activities; providing an online interactive website obtaining users comments concerning service providers except in relation to temporary lodging and leisure activities; office functions except in relation to leisure activities; online trading services to facilitate the sale of services by others via a computer network and providing evaluative feedback and ratings of sellers’ services, the value and prices of sellers’ services, buyers’ and sellers’ performance, delivery, and overall trading experience in connection therewith except for those in relation to temporary lodging and leisure activities; computer services, namely, providing online computer databases and online searchable databases featuring consumer information on a wide variety of topics of general interest to the consuming public, except for those in relation to temporary lodging and leisure activities; providing consumer service information via the internet except in relation to temporary lodging and leisure activities; providing a searchable online evaluation database for buyers and sellers except in relation to leisure activities; computerised database management; advertising and promotion services; preparation of custom or non-custom advertising for businesses for dissemination via the web; dissemination of advertising for others via a global communications network; online advertising services for others, namely, providing advertising space on internet web sites; providing a searchable online advertising guide featuring the services of online vendors; advertising and advertisement services (listed twice); customer loyalty services for commercial, promotional and advertising purposes; promoting the services of others; advertising and information distribution services, namely, providing classified advertising space via the global computer network; providing online computer databases and online searchable databases featuring classified listings’;
–        Class 36: ‘Providing reviews and feedback about listers and renters of real estate, [from] virtual communities and from social networking sites; electronic commerce payment services, namely, processing payments for the purchase of goods and services via an electronic communications network; providing purchase protection services in the field of online trading of goods and services by others via a global computer network’;
–        Class 38: ‘Providing online electronic bulletin boards for transmission of messages among computer users concerning rankings, ratings, reviews, referrals, and recommendations relating to service providers; providing an online, interactive bulletin board for the transmission of messages among computer users concerning the sale of services via a global communications network’;
–        Class 39: ‘Travel arrangement except online travel arrangement in relation to temporary lodging and leisure activities; online trip and travel recommendations and reservation services [except] in relation to temporary lodging and leisure activities; providing travel information over global computer networks, namely, providing search services for travel listings, travel information and related travel topics except for those in relation to temporary lodging and leisure activities’;
–        Class 41: ‘Providing online newsletters featuring lodging and travel information and reviews of lodging and travel providers; education; entertainment; sporting and cultural activities’;
–        Class 43: ‘Services for providing food and drink; temporary accommodation’.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision in so far as it dismissed its appeal (Case R 893/2022-2) in part and upheld the revocation of the contested mark in relation to the services referred to in paragraph 10 above;
–        order EUIPO to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
Law
13      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001. That single plea in law is divided into two parts. The first part alleges that the Board of Appeal unjustifiably limited certain services through the subcategory ‘… in relation to temporary lodging and leisure activities’ formed by it, in so far as the Board of Appeal ignored actual use of the contested mark outside that subcategory and the applicant’s legitimate interest in reasonably expanding its business. The second part alleges that the Board of Appeal made an error of assessment in respect of the services for which it revoked the mark.
14      In the present case, both the Cancellation Division and the Board of Appeal considered the period from 5 March 2015 until 4 March 2020 to be the five-year period for which the applicant was required to demonstrate genuine use of the contested mark, which is not disputed by the applicant.
15      Under Article 58(1)(a) of Regulation 2017/1001, the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO or on the basis of a counterclaim in infringement proceedings if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
16      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 was registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see judgment of 27 September 2007, La Mer Technology v OHIM – Laboratoires Goëmar (LA MER), T‑418/03, not published, EU:T:2007:299, paragraph 54 and the case-law cited).
17      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 27 September 2007, LA MER, T‑418/03, not published, EU:T:2007:299, paragraph 55 and the case-law cited).
18      In order to examine, in a particular case, whether a trade mark has been put to genuine use, a global assessment must be carried out, which takes into account all the relevant factors of the particular case, which entails a degree of interdependence between the factors taken into account (judgment of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 36). Thus, each item of evidence is not to be analysed separately, but rather together, in order to determine the most likely and the most coherent meaning. In such an analysis, it cannot be excluded that an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (judgment of 17 April 2008, Ferrero Deutschland v OHIM, C‑108/07 P, not published, EU:C:2008:234, paragraph 36; see also, to that effect, judgment of 6 March 2014, Anapurna v OHIM – Annapurna (ANNAPURNA), T‑71/13, not published, EU:T:2014:105, paragraph 45).
19      Last, it is clear from Article 64(2) of Regulation 2017/1001 that it is for the proprietor of the earlier mark to furnish proof of genuine use of that mark in accordance with its essential function (see, to that effect, judgment of 13 December 2018, C=Holdings v EUIPO – Trademarkers (C=commodore), T‑672/16, EU:T:2018:926, paragraph 21).
20      In that regard, genuine use of such a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of that trade mark on the market 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, paragraph 34).
21      It is in the light of those considerations that the applicant’s arguments must be examined.
The first part, alleging that the genuine use of certain services concerned was unjustifiably limited through the subcategory ‘… in relation to temporary lodging and leisure activities’ formed by the Board of Appeal
22      The Board of Appeal found that genuine use of the contested mark was proven in connection with certain services in Classes 35, 36 and 39 in so far as they related to ‘temporary lodging’ and/or ‘leisure activities’. In particular, it held that guests on the applicant’s platform could book various ‘local experiences’, in particular guided tours and cultural events of all types, as well as classes.
23      In that regard, the applicant claims, first of all, that the current scope of its business covers the broader categories ‘travel, temporary lodging, temporary offices and meeting spaces, leisure, education, entertainment, cultural experiences, and excursions’. The applicant submits that the Board of Appeal accepted that the contested mark had been used in connection with those services and therefore incorrectly limited the category of services in respect of which the contested mark could remain registered though the expression ‘… in relation to temporary lodging and leisure activities’. Furthermore, according to the applicant, the expression ‘leisure activities’ used by the Board of Appeal is very vague and does not cover the entire range of offerings under the contested mark. Next, the applicant argues that the Board of Appeal did not explain why it rejected the broader category of ‘travel’ and, in doing so, did not take into account the purpose and the use of its mark from the perspective of the relevant consumers. Similarly, it did not take into account the definition of the term ‘travel’ given in Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1). Last, it complains that the Board of Appeal did not take into account its interest in reasonably expanding its business in the future.
24      EUIPO disputes those arguments.
25      As a preliminary point, it should be noted that, in response to a question asked by the Court at the hearing regarding the applicant’s arguments set out in paragraph 22 et seq. of its application, the applicant stated that it does not claim a failure to state reasons, formal note of which was made in the minutes of the hearing.
26      It should be recalled at the outset that if the proprietor of the contested mark has registered his or her trade mark for a wide range of goods or services which he or she may potentially market, but which he or she has not done during a continuous period of five years, his or her interest in enjoying the protection of the mark for those goods or services cannot prevail over his or her competitors’ interest in registering their trade mark for those goods or services (see, to that effect, judgment of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraph 43).
27      In addition, the breadth of the categories of goods or services for which the contested mark was registered is a key element of the balance between, on the one hand, the maintenance and preservation of the exclusive rights conferred on the proprietor of the contested mark and, on the other hand, the limitation of those rights in order to prevent a trade mark which has been used in relation to part of the goods or services being afforded extensive protection merely because it has been registered for a wide range of goods or services (judgments of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraph 39, and of 2 March 2022, Apologistics v EUIPO – Kerckhoff (apo-discounter.de), T‑140/21, not published, EU:T:2022:110, paragraph 22).
28      In the present case, first, as regards the allegedly vague character of the expression ‘leisure activities’, which purportedly does not cover the entire range of offerings under the contested mark, it should be noted that the Board of Appeal referred, in paragraphs 87 and 88 of the contested decision, to the various ‘local experiences’ which guests could book on the applicant’s platform. As EUIPO correctly claims in its response, such experiences are encompassed by the term ‘leisure activities’. Furthermore, it must be observed that the term ‘leisure’ is also contained in the subcategory proposed by the applicant.
29      Second, as regards the Board of Appeal’s rejection of the broader category of ‘travel’ proposed by the applicant, it should be noted that, while it is true that, as observed by the applicant, the Nice Classification is purely administrative, reference should, however, be made to it in order to determine, where necessary, the range or the meaning of the goods and services in respect of which a trade mark has been registered (judgment of 10 September 2014, DTM Ricambi v OHIM – STAR (STAR), T‑199/13, not published, EU:T:2014:761, paragraph 35).
30      Moreover, it should be recalled that, as EUIPO asserts, the classification of a product pursuant to other rules of EU law is not, in principle, decisive in respect of its classification for the purposes of the registration of an EU trade mark. In accordance with Article 33(1) of Regulation 2017/1001, for the purposes of the registration of an EU trade mark, goods and services must be classified according to the Nice Classification. It follows that the applicant is not entitled to rely on the definition of the term ‘travel’ in Directive 2015/2302.
31      Third, the applicant cannot effectively rely on the judgment of 16 July 2020, ACTC v EUIPO (C‑714/18 P, EU:C:2020:573). In that regard, it is true that, as is stated in paragraph 39 of that judgment, the limitation on the rights which the applicant gains from his or her registration must be reconciled with the legitimate interest of the applicant in being able in the future to extend his or her range of services, within the confines of the terms describing the services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him or her. However, that is not case for services in connection with which use of the contested mark has not been proven. In accordance with the case-law referred to in paragraphs 26 and 27 above, that envisaged balance does not permit the applicant to make up for a lack of genuine use and his or her interest in enjoying the protection conferred on him or her by the registration of the mark cannot prevail over his or her competitors’ interest in registering their trade mark for those services.
32      Fourth, the applicant’s argument that the Board of Appeal should have taken into account its intention to use the contested mark in the future for, inter alia, ‘booking of transportation’, even though it had not submitted sufficient evidence of actual use of the mark in connection with that service, also cannot be upheld.
33      In accordance with the case-law referred to in paragraph 20 above, genuine use of the contested mark must be demonstrated by solid and objective evidence of actual and sufficient use of that trade mark on the market concerned for a period of five years. Consequently, the applicant’s intention to expand its business in those services in the future cannot be sufficient to establish genuine use of the contested mark in that regard.
34      In the light of the foregoing, the first part of the single plea in law, alleging that the genuine use of certain services was unjustifiably limited through the subcategory ‘… in relation to temporary lodging and leisure activities’ formed by the Board of Appeal, must be rejected as unfounded.
The second part, alleging that the Board of Appeal made an error of assessment in respect of the services for which it revoked the mark
Services in Class 35
35      The Board of Appeal, after, in essence, dividing the services in Class 35 referred to in paragraph 10 above into two categories, namely ‘advertising and advertising-related services’ and ‘providing of online computer databases’, held that the applicant had not shown genuine use of the contested mark in connection with those services.
36      As regards ‘advertising’ and ‘advertising-related services’, the applicant claims, in essence, that the Board of Appeal erroneously equated those services with ‘services of an advertising company’. In that regard, it states that under Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21), ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services. The applicant submits that the evidence provided shows that it advertises services offered by its hosts. According to the applicant, a service does not need to be paid for in order for the provision of that service to qualify as genuine use of the contested mark.
37      As regards the services ‘providing of online computer databases’, the applicant claims that its platform constitutes an online database, which it manages in a computerised way, containing a structured set of data accessible to its customers. Its platform is an online searchable database and the listings constitute, inter alia, advertisements for housing, apartments and real estate. In support of its arguments, it relies on the definition of the term ‘database’ in Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20). Last, the applicant submits that it has entered into data sharing cooperation with the European Commission.
38      EUIPO disputes those arguments.
39      In response to an oral question asked by the Court at the hearing, the applicant reiterated that its business consisted in offering a platform through which consumers could book accommodation services or experiences provided by hosts. Using the example of newsletters, the applicant stated, on the one hand, that it advertised its own services, which did not constitute an ‘advertising’ service in Class 35, and, on the other hand, that it also advertised services provided by hosts.
40      First, it must be stated that the applicant’s argument that the Board of Appeal established an equivalence between ‘advertising’ services and ‘services … of advertising companies’ is based on a truncated reading of the contested decision. On the one hand, it is clear from paragraph 89 of the contested decision that, after giving the definition of ‘advertising services’, the Board of Appeal noted that such services are provided by advertising companies without, however, stating that that is exhaustive. In addition, it did not rely on any such equivalence in concluding that there was no genuine use of the contested mark in connection with those services.
41      On the other hand, as regards the definition of ‘advertising services’, the Board of Appeal held that such services consist in ‘providing others with assistance in the sale of their goods and services by promoting their launch and/or sale, or of reinforcing the client’s position on the market and enabling them to acquire a competitive advantage through publicity’.
42      In that regard, the applicant is not entitled to rely on the definition of ‘advertising’ in Directive 2006/114. It should be recalled that, according to the case-law referred to in paragraph 29 above, although the Nice Classification is purely administrative, reference should be made to it in order to determine, where necessary, the range or the meaning of the goods and services in respect of which a trade mark has been registered.
43      Furthermore, as stated in paragraph 30 above, the classification of a service pursuant to other rules of EU law is not, in principle, decisive in respect of its classification for the purposes of the registration of an EU trade mark. It follows that the applicant is not entitled to rely on the definition of the term ‘advertising’ in Directive 2006/114.
44      Second, as regards the applicant’s argument seeking to challenge the Board of Appeal’s conclusion concerning the lack of genuine use of the contested mark in connection with ‘advertising’ services in Class 35, it must be observed that the evidence provided by the applicant does not indicate services in the field of advertising to which third parties could have recourse.
45      In particular, the material provided by the applicant to demonstrate use of the contested mark in connection with ‘advertising’ services includes, in the first place, newsletters (Annexes NEW-1 to NEW-216 to the EUIPO file) which provide information in respect of the relevant territory regarding accommodation, its price per night and its reviews by customers.
46      In the second place, the applicant’s magazine (Annexes MAG-1, MAG-2, MAG 2017-1 to MAG 2017-28, MAG 2018-1 to MAG 2018-32, MAG 2019-1 to MAG 2019-48 to the EUIPO file) contains articles on travel destinations and events, as well as references to accommodation.
47      It follows that, contrary to the claim made by the applicant, that evidence does not show that it offers ‘advertising’ services as defined in paragraph 41 above. The references made in the abovementioned evidence to the different accommodation or experiences that are offered form part of the promotional material for its business activity, namely accommodation and leisure activities which it offers through its platform, and are not an ‘advertising’ service provided to third parties, in other words to hosts.
48      Consequently, the fact that the applicant distributes newsletters or magazines featuring accommodation and events offered by its hosts does not mean that the contested mark is used in connection with advertising services. The presentation of accommodation or experiences offered by hosts as part of the content of its magazines and newsletters is an intrinsic part of the applicant’s business activity.
49      Thus, the promotion of the services provided by hosts is not intended to advertise those services as a means of maintaining or creating market shares for those hosts, but to facilitate the sale of the services offered by the applicant (see, by analogy, judgment of 20 November 2024, Wonderbox v EUIPO – Swile (Wonderbox), Τ‑200/24, not published, EU:T:2024:841, paragraph 53).
50      The foregoing considerations cannot be called into question by the applicant’s argument that a service does not need to be paid for in order for the provision of that service to qualify as genuine use of the contested mark. In accordance with the case-law referred to in paragraph 16 above, although the content of the evidence produced by the applicant shows that the use of the contested mark was intended to create or preserve an outlet for the services of temporary accommodation or of purchase of leisure activities provided by hosts, the same does not hold for ‘advertising’ services. Therefore, as EUIPO correctly asserts, it is, in reality, an ancillary activity to the applicant’s business activity, as the promotion of its own services cannot be classified as the provision of ‘advertising’ services to third parties.
51      The same applies to the extracts from the Wayback Machine showing the applicant’s website (Annexes AP-1 to AP-4 and AS-1 to AS-10 to the EUIPO file), relied on by the applicant to prove that it offers advertising services to hosts under the ‘Airbnb Plus’ special programme or to those with ‘Superhost’ status. Those annexes can be likened to promotional material to encourage hosts to register with those programmes. However, they do not contain information either on the number of hosts already registered or on the fees invoiced for that service. Consequently, they cannot be sufficient to establish that the applicant provides ‘advertising’ services to its hosts.
52      As regards the services ‘providing of online computer databases’, it is clear from the applicant’s arguments that it acknowledges itself that it does not offer such services to third parties in order to create or preserve an outlet in accordance with the case-law cited in paragraph 16 above. As the applicant asserts, it is private property owners, owners of real estate agencies and owners of boutique hotels that offer their properties on its platform.
53      Moreover, it must be stated that the evidence produced does not make it possible to establish that the contested mark has been put to genuine use in connection with ‘computerised database management’. In that regard, the press article entitled ‘Airbnb Signs Data Sharing Partnership With European Commission’, published in 2020 (Annexes DSP-1 and DSP-2 to the EUIPO file), is not such as to establish genuine use, since its title merely refers to the fact that ‘public authorities in Europe will soon have access to independently published data on short-term rentals’.
54      Consequently, such online data storage by the applicant, in other words the structured listing of the properties offered, facilitates the services of temporary lodging or purchase of leisure activities which it offers and is not intended as a means for the applicant to create market shares for ‘computerised database management’.
55      Accordingly, it follows from the foregoing that the Board of Appeal did not make an error of assessment by finding that the applicant had not furnished proof of genuine use of the contested mark in connection with the services in Class 35 referred to in paragraph 10 above.
Services in Class 36
56      First of all, the Board of Appeal held, in essence, that there was no evidence showing use of the contested mark in connection with ‘providing reviews and feedback about listers and renters of real estate, from virtual communities and from social networking sites’. Next, as regards ‘electronic commerce payment services, namely, processing payments for the purchase of goods and services via an electronic communications network’, the Board of Appeal considered that those were the technical means for invoicing for the services offered by the applicant. Those invoicing services were not offered independently. Last, as regards the services ‘providing purchase protection services in the field of online trading of goods and services by others via a global computer network’ in Class 36, the Board of Appeal concluded that the applicant had not shown that it had tried to acquire a commercial position on the relevant market for those services.
57      The applicant submits that, on its platform, guests and hosts can evaluate each other by providing public reviews. It also claims, in essence, that it processes payments for bookings, which includes, inter alia, issuing invoices and deducting various fees not only in respect of the simple ‘charging’ of an invoiced amount, but also for different side-services. Its electronic commerce payment services also make possible multiple payment options. The applicant provides financial security to both guests and hosts. Last, it states that it submitted evidence of genuine use in connection with ‘providing purchase protection services in the field of online trading of goods and services by others via a global computer network’ in Class 36.
58      EUIPO disputes the applicant’s arguments.
59      First, with regard to ‘electronic commerce payment services, namely, processing payments for the purchase of goods and services via an electronic communications network’ in Class 36, the applicant does not demonstrate that it provides such services. In that regard, the evidence submitted by the applicant, in particular an affidavit signed by its Lead Counsel on 12 July 2020, a press article entitled ‘Airbnb Launches Pay Less Up Front, a New Flexible Payment Option for Travelers’ published in 2018 and a press article entitled ‘Airbnb Makes Group Travel Easy with Global Launch of Split Payments’ published in 2017, does not establish that it is active in that sector.
60      It is true that the applicant processes payments for bookings made on its website. In particular, it collects the payment made by the guest, issues an invoice or receipt, deducts fees to be paid by the guest and by the host and, in certain circumstances, may withhold taxes and duties as required, and sends the host the payment for the temporary lodging or experience. However, the fact that the applicant processes payments for services booked by its customers through its platform is not a sufficient basis to find that the contested mark has been put to genuine use in relation to those services. That conclusion is confirmed by the evidence submitted by the applicant, which is referred to in paragraph 59 above. It is therefore merely a means of processing payments for the services of temporary lodging or leisure activities offered by it and not an attempt to create an outlet for those services taken in isolation.
61      Second, with regard to the services ‘providing purchase protection services in the field of online trading of goods and services by others via a global computer network’, as noted by the Board of Appeal, the ‘exploratory study of consumer issues in online peer-to-peer platform markets – Task 4 – Case study: Airbnb from the European Commission, 2017, the fourth largest platform company worldwide (peer-to-peer platform)’  (Annexes EC‑1 to EC‑53 to the EUIPO file) states that host insurance is provided by an insurer participating in Lloyd’s of London. It is also stated that host insurance is free for all users of the platform. It follows that the applicant has not proved that it tried to establish itself on the market as a provider of such services for consumers.
62      Furthermore, such services consist in accepting liability for certain risks and losses. Providers offer compensation and general assistance in the event that a specified contingency occurs, the materialisation of which is capable of giving rise to damages for customers. The evidence submitted does not show that the contested mark was used in connection with such services.
63      Third, with regard to ‘providing reviews and feedback about listers and renters of real estate, from virtual communities and from social networking sites’ in Class 36, it should be noted that the applicant produced extracts from the Wayback Machine showing the website of the contested mark in different EU countries during the relevant period.
64      In the present case, Annexes DE-1 to DE-22 to the EUIPO file showing the website of the contested mark in Germany between 2013 and 2017 set out a list of stays and the number of available reviews is shown below each stay. The same applies to Annexes DK-1 to DK-15, EE-1 and EE-2, ES-1 to ES-20, FI-1 to FI-6, FR-1 to FR-43, GR-1 to GR-9, HR-1 and HR-2, HU-1 to HU-8, IR-1 to IR-11, IT‑1 to IT‑31, LT‑1 to LT‑4, LU-1 and LU-2, LV-1 and LV-2, MT‑1 and MT‑2, NL-1 to NL-27, PL-1 to PL-8, PT‑1 to PT‑10, RO-1 to RO-4, SE-1 to SE-8, SI-1 and SI-2, SK-1 and SK-2, UK-1 to UK-71. Those annexes contain reviews of stays in Denmark, Estonia, Spain, Finland, France, Greece, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Sweden, Slovenia, Slovakia and the United Kingdom respectively.
65      Consequently, several items of evidence confirm that the applicant’s platform contains reviews of real estate and of hosts written by customers. In addition, that platform includes, inter alia, review functions and both customers and hosts are able to interact by means of comments. It therefore constitutes a kind of virtual community.
66      The Board of Appeal merely stated, in paragraph 95 of the contested decision, that there was no evidence that the applicant had provided reviews and feedback for the accommodation or services shown on its platform.
67      In the light of all the foregoing considerations, the Board of Appeal made an error of assessment by holding that the applicant had not provided proof of genuine use of the contested mark in connection with the services ‘providing reviews and feedback about listers and renters of real estate, from virtual communities and from social networking sites’ in Class 36. It failed to have regard to the evidence cited in paragraph 64 above.
68      By contrast, for the reasons set out in paragraphs 59 to 62 above, the applicant’s arguments cannot be accepted in respect of ‘electronic commerce payment services, namely, processing payments for the purchase of goods and services via an electronic communications network’ or with regard to ‘providing purchase protection services in the field of online trading of goods and services by others via a global computer network’ in Class 36.
Services in Class 38
69      The Board of Appeal concluded that the applicant had not provided evidence which allowed it to assess the extent of use of the contested mark in connection with the services ‘providing online electronic bulletin boards for transmission of messages among computer users concerning rankings, ratings, reviews, referrals, and recommendations relating to service providers; providing an online, interactive bulletin board for the transmission of messages among computer users concerning the sale of services via a global communications network’ in Class 38.
70      The applicant complains that the Board of Appeal overlooked the fact that it provides a messaging function between guests and hosts as well as a review section on its portal. It claims that the evidence shows genuine use of the contested mark in connection with the services referred to in paragraph 69 above.
71      EUIPO disputes the applicant’s arguments.
72      In the present case, with regard to the affidavit signed by the Lead Counsel of the applicant on 12 July 2020 (Annexes AD-1 to AD-21 to the EUIPO file), it should be recalled that, according to case-law, affidavits from a person who has close ties with the party concerned, such as those between the author of that affidavit and the applicant in the present case, are of less evidential value than those from third parties and that they cannot therefore, on their own, constitute sufficient proof of use of the mark (see, to that effect, judgments of 9 December 2014, Inter-Union Technohandel v OHIM – Gumersport Mediterranea de Distribuciones (PROFLEX), T‑278/12, EU:T:2014:1045, paragraph 51, and of 5 March 2020, Dekoback v EUIPO – DecoPac (DECOPAC), T‑80/19, not published, EU:T:2020:81, paragraph 55 and the case-law cited). By making such a finding, the Board of Appeal was entitled to conclude that that affidavit had to be supported by further objective evidence in order to prove use of the contested mark.
73      In that regard, although it is stated in that affidavit, in essence, that the applicant’s platform contains online interactive functions for obtaining users’ comments, the affidavit is not supported by any other evidence.
74      First, in the extract from the website of the Community Centre of the contested mark, dated 2019 (Annex ACC to the EUIPO file), it is stated that there are more than one million posts in that community. However, that extract contains a single post made by a host located in Ireland and one post made by an ‘admin’ located in the United Kingdom. Consequently, the applicant has not adequately demonstrated the volume of posts relating to the territory of the European Union during the relevant period.
75      Second, the article entitled ‘Community Center Guidelines (Updated)’ (Annex CCG to the EUIPO file) contains only information on the use of the Community Centre, not information on use of the contested mark in connection with the services referred to in paragraph 69 above in the territory of the European Union.
76      Third, with regard to Annex HN to the EUIPO file, it should be noted that it contains extracts from newsletters sent to hosts in 2019. However, as the Board of Appeal correctly observed, there is no reference to the number of recipients of those newsletters or information on the relevant territory.
77      Fourth, none of Annexes BL, EDS, DES, and NR to the EUIPO file, which take the form of, respectively, a blog extract, extracts from the website of Airbnb Engineering, an extract from the website of the Airbnb Design blog and an extract from the Airbnb Newsroom website, relied on by the applicant, makes reference to a specific location.
78      It follows from all the foregoing that the Board of Appeal correctly held that the applicant had not shown genuine use of the contested mark in connection with the services in Class 38 referred to in paragraph 69 above.
Services in Class 39
79      After examining the evidence, the Board of Appeal held, in paragraphs 102 to 104 of the contested decision, that the applicant had not shown genuine use of the contested mark in connection with the services ‘travel arrangement except online travel arrangement in relation to temporary lodging and leisure activities; online trip and travel recommendations and reservation services [except] in relation to temporary lodging and leisure activities; providing travel information over global computer networks, namely, providing search services for travel listings, travel information and related travel topics except for those in relation to temporary lodging and leisure activities’ in Class 39.
80      The applicant, first, complains that the Board of Appeal did not explain the reasons for differentiating between services provided ‘online’ and ‘offline’. According to the applicant, ‘online travel arrangement’ should be sufficient to constitute genuine use for the broader category of ‘travel arrangement’. It also offers travel arrangement services through its Airbnb Luxe programme. Second, it claims that its platform contains a wide variety of online trip recommendations and offers the possibility to make bookings. In support of its arguments, the applicant relies on its newsletters and Airbnb Magazine.
81      EUIPO disputes the applicant’s arguments.
82      In the present case, in the first place, it should be noted that, in paragraph 103 of the contested decision, the Board of Appeal concluded that the applicant had shown genuine use of the contested mark in connection with ‘online trip and travel recommendations and reservation services in relation to temporary lodging and leisure activities’ in Class 39. Therefore, the applicant’s arguments that it provides its customers with online travel recommendations and reservation services must be rejected as ineffective.
83      In the second place, it must be stated that the applicant simply asserts that from the perspective of the relevant consumers there is no significant difference between online travel arrangement and offline travel arrangement. However, it does not develop any arguments in that regard.
84      In any event, the applicant presents itself as a provider of an online and mobile platform which enables users to browse and book places to stay and things to see and do. It does not therefore offer arranged travel or full travel programmes. Consequently, it cannot call into question the Board of Appeal’s conclusion that it had shown genuine use of the contested mark only in connection with the services ‘online travel arrangement in relation to temporary lodging and leisure activities’.
85      It is apparent from the foregoing reasoning that the applicant has not demonstrated that the Board of Appeal’s assessments in respect of genuine use of the contested mark in connection with the services in Class 39 referred to in paragraph 79 above were incorrect.
Services in Class 41
86      The Board of Appeal held, in paragraphs 105 to 107 of the contested decision, that the applicant had not shown genuine use of the contested mark in connection with the services ‘providing online newsletters featuring lodging and travel information and reviews of lodging and travel providers; education; entertainment; sporting and cultural activities’ in Class 41.
87      The applicant submits, first, that the Board of Appeal made an error of assessment by not recognising genuine use of the contested mark in connection with the services ‘providing online newsletters featuring lodging and travel information and reviews of lodging and travel providers’ in Class 41, even though it had submitted newsletters and statistics concerning the effectiveness of those newsletters. According to the applicant, hosts’ newsletters, as well as advertisements regarding accommodation and trip options sent by email, qualify as online newsletters. Second, with regard to the service ‘education’ in the same class, the applicant states that the experiences offered under the contested mark qualify as education. Third, as far as the service ‘entertainment’ in the same class is concerned, the applicant claims that the use of the contested mark in connection with such services or on business papers qualifies as genuine use in accordance with Article 9(3)(b) and (e) of Regulation 2017/1001. From the perspective of the average consumer, that service is offered, advertised or invoiced, and therefore also provided, under the contested mark, despite the fact that it is actually provided by the hosts.
88      EUIPO disputes those arguments.
89      With regard to the services ‘education; entertainment’ in Class 41, as stated in paragraph 84 above, the applicant presents itself as a provider of an online and mobile platform which enables users to browse and book places to stay and things to see and do. According to the applicant, hosts bring variety and a personal touch to those stays and, in many cases, they share their home with guests. In short, the applicant provides the platform through which consumers make their booking.
90      That being so, it must be examined whether, in accordance with the case-law referred to in paragraph 16 above, the contested mark, in the light of the evidence produced by the applicant, fulfilled the function of identifying the commercial origin of the services referred to in paragraph 89 above.
91      In that regard, it should be noted that consumers can see the contested mark displayed on the top left of the invoices relied on by the applicant, making reference to experiences in the relevant territory during the relevant period (Annexes EX 1 to EX 132 to the EUIPO file).
92      However, as is apparent from an examination of those invoices, they include information on the services provided and the heading ‘service fee for the use of the online platform’. Consumers can therefore see that the applicant provides the platform through which they make bookings for stays and/or activities and payments for those services, which are provided by hosts.
93      In those circumstances, there is nothing to suggest that consumers perceived the contested mark displayed on the invoices relied on by the applicant as an indication of the commercial origin of the services referred to in paragraph 89 above. In the mind of consumers, it instead points to the fact that booking and payment are made through the applicant’s platform.
94      In the light of the foregoing, the applicant, on which the burden of proof rests in accordance with the case-law referred to in paragraph 19 above, has not demonstrated that consumers perceived its trade mark displayed on the invoices as an indication of the commercial origin of the services referred to in paragraph 89 above.
95      With regard to ‘providing online newsletters featuring lodging and travel information and reviews of lodging and travel providers’ in Class 41, it should be noted that, as the applicant asserts, it produced newsletters covering the relevant period as Annexes NEW-1 to NEW-216 to the EUIPO file.
96      In the present case, although those newsletters concern lodging and include reviews of that lodging, it must be stated that the newsletters were sent with a view to promoting the applicant’s business activity, that is to say, the possibility of booking the lodgings which it offers on its platform. In accordance with the case-law set out in paragraph 16 above, the content of the abovementioned evidence does not establish that the use of the contested mark was intended to create or preserve an outlet for the service ‘providing online newsletters featuring lodging and travel information and reviews of lodging and travel providers’.
97      Consequently, as EUIPO correctly asserts, it is an ancillary activity to the applicant’s business activity, since providing those newsletters in order to promote its own services cannot be classified as ‘providing online newsletters featuring lodging and travel information and reviews of lodging and travel providers’ to third parties.
98      It follows that the Board of Appeal was correct to find that the contested mark had not been put to genuine use in connection with the services in Class 41 referred to in paragraph 86 above.
Services in Class 43
99      The Board of Appeal concluded in paragraph 108 of the contested decision that the applicant had not shown use in connection with the services ‘temporary accommodation; services for providing food and drink’ in Class 43.
100    The applicant submits that the Board of Appeal made an error of assessment by holding that the services referred to in paragraph 99 above had to be provided by the applicant itself. In support of its arguments, the applicant relies on Article 9(3) of Regulation 2017/1001 and numerous invoices (Annexes AI 1 to AI 300 and Annexes EX 1 to EX 124 to the EUIPO file).
101    EUIPO disputes the applicant’s arguments.
102    In the present case, for the same reasons as those set out in paragraphs 89 to 93 above, it must be held that the applicant has not demonstrated use of the contested mark in connection with the services referred to in paragraph 99 above.
103    Consequently, the Board of Appeal did not make an error of assessment by holding that the applicant had not proven genuine use of the contested mark in connection with the services in Class 43.
104    In the light of all the foregoing considerations, and without there being any need to rule on the admissibility of the arguments and evidence submitted for the first time before the Court by the applicant, which do not relate to the services ‘providing reviews and feedback about listers and renters of real estate, from virtual communities and from social networking sites’ in Class 36, the contested decision must be annulled in so far as it dismissed the appeal filed by the applicant (Case R 893/2022-2) [and upheld the revocation of the contested mark] in relation to those services in Class 36. The action must be dismissed as to the remainder.
Costs
105    Under Article 134(2) of the Rules of Procedure of the General Court, where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared. Since EUIPO and the applicant have been partially unsuccessful, each party should be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 December 2023 (Joined Cases R 886/2022-2 and R 893/2022-2) in so far as it dismissed the appeal filed by Airbnb, Inc. (Case R 893/2022-2) [and upheld the revocation of EU trade mark No 9 376 468] in relation to the services ‘providing reviews and feedback about listers and renters of real estate, from virtual communities and from social networking sites’ in Class 36 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;
2.      Dismisses the action as to the remainder;
3.      Orders each party to bear its own costs.
Kowalik-Bańczyk
Hesse
Dimitrakopoulos
Delivered in open court in Luxembourg on 21 May 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.