JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
11 March 2026 (*)
( EU trade mark – Revocation proceedings – EU word mark MAX – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 )
In Case T‑114/25,
MAX magazín s. r. o., established in Brno (Czech Republic), represented by F. Santonocito, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
RCS Mediagroup SpA, established in Milan (Italy), represented by M. Francetti and M. Cristofori, lawyers,
THE GENERAL COURT (Ninth Chamber),
composed of S. Kingston, President, A. Marcoulli (Rapporteur) and P. Zilgalvis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, MAX magazín s. r. o., seeks the partial annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 December 2024 (Case R 589/2024-2) (‘the contested decision’).
Background to the dispute
2        On 29 September 2022, the applicant filed an application with EUIPO for a declaration of revocation of the EU mark registered on 22 April 2003 following an application filed on 24 March 1997 by R.C.S. Periodici SpA, the legal predecessor of the intervener, RCS Mediagroup SpA, for the word sign MAX.
3        The goods covered by the mark in respect of which a declaration of revocation was sought were in Classes 9 and 16 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description:
–        Class 9: ‘CD, CD-ROM, video cassettes, video discs, sound and image recording tapes sold in connection with the above goods’;
–        Class 16: ‘Magazines, newspapers, periodicals and books’.
4        The ground relied on in support of the application for a declaration of revocation was that set out in Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), namely lack of genuine use.
5        On 24 January 2024, the Cancellation Division revoked the contested mark in its entirety with effect from 29 September 2022.
6        On 19 March 2024, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division.
7        In the contested decision, the Board of Appeal of EUIPO first confirmed the Cancellation Division’s decision to the extent that it had revoked the contested mark for the goods in Class 9 referred to in paragraph 3 above, as well as for newspapers, periodicals and books in Class 16. It then found that the intervener had made an effort to relaunch its mark. In reaching that conclusion, the Board of Appeal relied, first, on evidence of authorisation to publish MAX magazine granted by the intervener to the applicant on 2 November 2020, which had resulted in the publication of several test issues of the magazine (‘Item No 1’ in the file examined by EUIPO; ‘the test issue authorisation’). It also relied on evidence relating to a licence agreement with another publisher (‘the licensee’), signed on 8 November 2021, for the publishing, printing, marketing, distribution and sale of the German edition of MAX magazine for a period of three years from the date of entry into force of the agreement (Item No 3; ‘the licence agreement’), to place magazines bearing the MAX mark on the market during the relevant period, primarily in Germany. The Board of Appeal, finding the evidence submitted by the intervener sufficient to prove genuine use of the contested mark for magazines in Class 16 (‘the goods in question’), partially upheld the appeal and annulled the decision of the Cancellation Division to the extent that it had revoked the contested mark for those goods.
Forms of order sought
8        The applicant claims that the Court should:
–        annul the contested decision to the extent that it rejected the application for a declaration of revocation of the contested mark and order the revocation of that mark in its entirety;
–        order EUIPO to pay the costs, including the costs incurred in the proceedings before the Cancellation Division and the Board of Appeal.
9        EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
10      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
11      The applicant relies, in essence, on a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18 of that regulation, in that the Board of Appeal wrongly found that the contested mark had been put to genuine use for the goods in question. According to the applicant, the Board of Appeal failed to correctly assess or carefully motivate the elements of time, place, nature and extent of the use of that mark in so far as it covered the goods in question, based on the evidence submitted by the intervener.
12      EUIPO and the intervener dispute the applicant’s arguments.
13      According to 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.
14      In that regard, it should be recalled that, under Article 10(3) and (4) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), applicable to revocation proceedings pursuant to Article 19(1) of that delegated regulation, the proof of use of a trade mark must concern the place, time, extent and nature of use of the mark and is, in principle, to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001.
15      However, it is not necessary for each item of evidence to give information about all four elements referred to in paragraph 14 above to which the proof of genuine use must relate. 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; see also, to that effect, judgment of 16 June 2015, Polytetra v OHIM – EI du Pont de Nemours (POLYTETRAFLON), T‑660/11, EU:T:2015:387, paragraph 94 and the case-law cited).
16      Consequently, although the probative value of an item of evidence is limited to the extent that, individually, it does not show with certainty whether, and how, the goods at issue were placed on the market, and although that item of evidence is not therefore on its own decisive, it may nevertheless be taken into account in the overall assessment as to whether the use of the mark concerned is genuine. That is the case, for example, when that item of evidence is accompanied by other evidence (see judgment of 20 December 2023, Feed v EUIPO – The Feed.com (THE FEED), T‑27/23, not published, EU:T:2023:856, paragraph 27 and the case-law cited).
17      As to the extent of the use to which the trade mark at issue has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use. That assessment entails a degree of interdependence between the factors taken into account. Thus, the low volume of goods or services marketed under that mark may be offset by a high intensity of use or a period of regular use of that mark and vice versa (see judgment of 9 December 2014, Inter-Union Technohandel v OHIM – Gumersport Mediterranea de Distribuciones (PROFLEX), T‑278/12, EU:T:2014:1045, paragraphs 29 and 30 and the case-law cited).
18      In addition, there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or those services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see judgment of 3 July 2019, Viridis Pharmaceutical v EUIPO, C‑668/17 P, EU:C:2019:557, paragraph 38 and the case-law cited).
19      Lastly, for the interpretation of the concept of ‘genuine use’, account must be taken of the fact that the ratio legis of the requirement that the mark must have been put to genuine use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (see judgment of 17 January 2018, Deichmann v EUIPO – Munich (Representation of a cross on the side of a sports shoe), T‑68/16, EU:T:2018:7, paragraph 26 and the case-law cited).
20      It is in the light of those considerations that the single plea in law put forward by the applicant must be examined.
21      It should be noted from the outset that, given the date on which the application for a declaration of revocation was filed, the relevant period for assessing genuine use of the mark runs from 29 September 2017 to 28 September 2022. That point is not disputed by the parties.
The nature, time and place of use of the contested mark
22      First of all, as regards the nature of the use, it is common ground between the parties that, as far as the relevant period is concerned, the dispute before the Court relates only to magazines in Class 16, which constitute printed matter.
23      Next, as regards the time of the use, the applicant does not dispute the Board of Appeal’s finding that MAX magazine was published during the last two years of the relevant period. In that regard, it should be noted that, according to the case-law, it is sufficient that a trade mark has been put to use during a part of the relevant period to establish genuine use, since Article 58(1)(a) of Regulation 2007/1001 does not require continuous and uninterrupted use of the contested mark during the relevant period, but only genuine use during that period (see judgment of 22 June 2022, Beveland v EUIPO – Super B (BUCANERO), T‑29/21, not published, EU:T:2022:388, paragraph 103 and the case-law cited).
24      Lastly, as regards the place of use, the Board of Appeal found that the evidence submitted by the intervener attested to the genuine use of the contested mark in Germany. The applicant merely observes that certain items of evidence submitted by the intervener, namely photographs of MAX magazine displayed for sale in shops alongside other magazines in German (‘Annex 2’ in the file examined by EUIPO), provide no indication of the place concerned. However, it does not dispute the fact that MAX magazine was published in Germany, as the Board of Appeal found on the basis of all the evidence submitted, which included invoices for kiosk sales of the German edition of MAX magazine in Germany and Austria issued by a distributor to the intervener’s licensee (Item No 5) and invoices from that distributor relating to MAX magazine, addressed to various railway stations in Germany (Annex 7).
Extent of the use of the contested mark
25      It is apparent from the contested decision that the Board of Appeal found that the intervener had adduced evidence of genuine use of the contested mark, by showing that MAX magazine had been published and distributed pursuant to the test issue authorisation granted to the applicant, and also pursuant to the licence agreement entered into with the licensee for the publishing, printing, marketing, distribution and sale of the German edition of MAX magazine for a period of three years from the date of entry into force of that agreement. In relation to that licence agreement, the evidence submitted by the intervener and on which the Board of Appeal relied included, in particular, copies of magazine cover pages (Nos 03 and 04 in 2021 and Nos 01, 02 and 03 in 2022), invoices dated 31 October 2021, 31 December 2021, 31 March 2022, 30 June 2022 and 30 September 2022 for kiosk sales of the German edition of MAX magazine in Germany and Austria, issued by a distributor to the intervener’s licensee (Item No 5), a declaration signed by the licensee’s managing director (Annex 1) and invoices from the licensee’s distributor in relation to MAX magazine addressed to various railway stations in Germany (Annex 7). Whilst it acknowledged that the number of magazines published and distributed was low, the Board of Appeal found that use of the contested mark by the intervener for the goods in question during the last two years of the relevant period had been continuous and also continued subsequently, which demonstrated a period of regular use of the mark.
26      The applicant submits that the evidence adduced by the intervener is insufficient to prove genuine use of the contested mark. As regards the evidence concerning the test issue authorisation for the publication of MAX magazine, it claims that the initiative to relaunch the magazine was its own and that the reason it had not continued with the project after the test phase was the intervener’s lack of interest in using its trade mark. According to the applicant, the publication of test issues cannot be regarded as regular use of the contested mark nor as an effort by the intervener to maintain or create market share for the goods protected by that mark. As for the evidence concerning the licence agreement for the publication of MAX magazine, the applicant submits that the mere existence of that agreement is not sufficient to prove genuine use of the contested mark. In addition, that evidence shows that the circulation for the magazine was very small. Furthermore, while some of the evidence shows that a certain number of copies of the magazine were delivered to stores and retailers, it does not show how many copies were actually sold and how many were returned to the publisher during the relevant period.
27      EUIPO and the intervener dispute the applicant’s arguments.
The relevance of sales resulting from the test issue authorisation
28      The applicant submits that, when assessing genuine use of the contested mark, the Board of Appeal wrongly took into account the copies of MAX magazine that it published pursuant to the test issue authorisation. According to the applicant, that authorisation was not an initiative on the part of the intervener to ‘relaunch’ the mark. It submits that the publication of three test issues cannot prove regular use of the contested mark, especially given that the intervener is unable to even confirm the number of copies distributed during that test phase. Therefore, according to the applicant, the use of the contested mark for a test phase ‘through the use of third parties’ is not sufficient to prove genuine use of the contested mark by the intervener.
29      It should be noted, in the first place, that the copies published by the applicant pursuant to the test issue authorisation
form part of the evidence of genuine use that is subject to overall assessment in accordance with the case-law referred to in paragraph 15
above. The test copies were placed on the market, during the relevant period, under the contested mark and meet the criterion for genuine use which requires that a mark, as protected on 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).
30      It is true that, as EUIPO notes, the publication of the test issues cannot, in itself, constitute regular or even frequent use that serves to gain market share. Nonetheless, to the extent that those issues were placed on the market pursuant to the test issue authorisation and that MAX magazine continued to be marketed during the relevant period by way of subsequent issues published under the licence agreement, the test issues remain relevant when considered as a whole together with all the evidence submitted by the intervener for the assessment of the genuine nature of the use of the contested mark.
31      In the second place, it is true, as the applicant notes, that the intervener has not provided any evidence to establish the number of magazines actually sold pursuant to the test issue authorisation. However, that authorisation states that the applicant was to publish, at least for the first issue, 5 000 copies in English for the Czech Republic and Slovakia and 25 000 copies in German for distribution in Germany, Austria and Switzerland. The applicant does not dispute those figures and does not claim that the number of copies published was any different. Moreover, the applicant itself specifies in its application that the first test issue published in February 2020 was a ‘success’.
32      In the third place, with regard to the applicant’s argument that the Board of Appeal wrongly assumed that the intervener had taken the initiative to relaunch the contested mark, whereas the ‘MAX revival project’ was in fact the applicant’s initiative, it must be recalled that, according to the case-law, use of the mark may be either by the trade mark proprietor or by a third party with authority to use it (see, to that effect, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37). That was the situation in the present case since the intervener, the proprietor of the contested mark, had granted the test issue authorisation to the applicant. To assess genuine use of that mark, it must be borne in mind that the applicant, with the consent of the intervener, used the mark publicly and in accordance with its essential function, which was to guarantee the identity of the origin of the goods in question for which it had been registered. It follows that the applicant’s argument is ineffective given that the contested mark was, in any event, used with the consent of its proprietor. Consequently, in the present case, in so far as use by the applicant pursuant to the test issue authorisation was made with the consent of the intervener, evidence of use of the contested mark during that test phase may be taken into account in the assessment of its genuine use. Therefore, the applicant’s argument that use of the contested mark ‘through the use of third parties’ for a test phase should not be taken into account in the overall assessment of the genuine use of that mark must be rejected.
The sufficiency of the evidence adduced by the intervener in relation to sales resulting from the licence agreement
33      The applicant submits that the evidence adduced by the intervener in relation to the licence agreement is insufficient to establish genuine use of the contested mark. The applicant disputes, first, the sufficiency of the invoices submitted by the intervener to demonstrate that use, secondly, the probative value of the declaration from the director of the licensee, thirdly, the fact that the Board of Appeal took account of certain items of evidence originating outside the relevant period, fourthly, the existence of financial investment on the part of the intervener and, fifthly, the probative value of other evidence submitted by the intervener before the Board of Appeal.
34      In the first place, it must be noted that the question whether use is sufficient to maintain or create market share for the goods or services protected by the mark depends on several factors and, as the applicant acknowledges, on a case-by-case assessment (see judgment of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 73 and the case-law cited). Use of a mark need not always be quantitatively significant in order to be deemed genuine. Even minimal use can therefore be sufficient to be classified as genuine, provided that it is justified, in the economic sector concerned, to maintain or create market share for the goods or services protected by the mark (see judgment of 14 December 2011, Völkl v OHIM – Marker Völkl (VÖLKL), T‑504/09, EU:T:2011:739, paragraph 82 and the case-law cited).
35      In the present case, the intervener adduced evidence of sales of MAX magazine by producing invoices issued to its licensee by the licensee’s distributor, in relation to the German editions of the magazine published in 2021 and 2022 in Germany and Austria (Item No 5), as well as invoices issued by that distributor to various railway stations in connection with, inter alia, MAX magazine (Annex 7). As the Board of Appeal found in paragraph 37 of the contested decision, the invoices appearing in Item No 5 show that the circulation for issue No 3/21 was 15 279 copies, that for issue No 4/21 was 13 276 copies, that for issue No 1/22 was 11 713 copies, that for issue No 2/22 was 8 628 copies and that for issue No 3/22 was 3 922 copies. In that regard, it should be noted that those invoices point to a certain regularity in the publication and distribution of MAX magazine during the last two years of the relevant period. Furthermore, even though sales were limited in number, it must be noted, first, that the invoices appearing in Annex 7 are addressed to various railway stations, which shows that the mark was used publicly and outwardly and that, bearing in mind the market in question, it was not a case of a mere attempt to simulate genuine use by always using the same points of sale (see, to that effect, judgment of 5 March 2019, Meblo Trade v EUIPO – Meblo Int (MEBLO), T‑263/18, not published, EU:T:2019:134, paragraph 93). Secondly, it must be noted, as EUIPO has observed, that the invoices appearing in Item No 5 relate to deliveries of MAX magazine and include details of the number of copies sold and returned, those amounts being deducted from the totals for all magazines. Therefore, those sales constitute acts of use that were objectively such as to create or preserve an outlet for MAX magazine, involving a commercial volume which, in view of the period and frequency of use, was not so low as to lead to the conclusion that the use was merely token, minimal or notional, within the meaning of the case-law cited in paragraph 18 above. Despite the low volume of sales, it must be noted that, in accordance with the case-law cited in paragraph 19 above, the requirement for genuine use does not entail either an assessment of the commercial success of MAX magazine or a review of the intervener’s economic strategy.
36      In addition, it must be noted, as the intervener has argued, that the assessment of the extent of the sales of the goods in question must take into account the peculiarities of the newspaper industry, namely that distribution to end consumers is not necessarily carried out by the publishing houses or by a single main distributor, but by various local distributors, which explains the production of a large number of invoices for points of sale in Germany. In addition, as the Board of Appeal noted, the fact that distribution is carried out by various local distributors may be the reason why each invoice relates only to a small number of copies sold –
4 to
20 – provided that use is continuous.
37      Furthermore, as regards the applicant’s argument that the figures on the invoices produced are very low when compared with other magazines distributed in Germany, it must be recalled that the assessment of genuine use does not rest on a comparison of the commercial success of the contested mark with that of other marks, but seeks to avoid token registrations. The relevant criterion is whether the use was such as to create or preserve an outlet for the goods in question, entailing a volume of sales which, in relation to the period and frequency of use, is not so low that it can be concluded that the use was merely token, minimal or notional for the sole purpose of preserving the rights conferred by the mark (see, to that effect, judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 49). Therefore, comparing the number of sales of MAX magazine during the relevant period with that of magazines known in Europe, or indeed worldwide, is not necessarily indicative of the extent of the use of the contested mark.
38      Moreover, as the intervener submits, sales of one of the magazines with which the applicant seeks to compare sales of MAX magazine have also decreased in general in recent years, corroborating the intervener’s argument that the newspaper industry has recently experienced a significant decline, affecting sales of printed magazines worldwide. In addition, it must be borne in mind, as the intervener submits, that sales of MAX magazine have always been lower than those of the magazines to which the applicant refers.
39      In the second place, as regards the applicant’s objection to the probative value of Annex 1, which was submitted by the intervener before the Board of Appeal to supplement the evidence previously submitted, it should be noted that this consists of a declaration signed by the managing director of the licensee, in which he states that the invoices included in Item No 5 refer to sales of MAX magazine and that the magazine was on sale online and in the 261 railway station bookstores in Germany, which are listed in the declaration.
40      First of all, it must be borne in mind, as regards the probative value of the declaration referred to in paragraph 39 above that, according to the case-law, the Board of Appeal is under a duty to consider whether the information contained in an affidavit is substantiated by other evidence and must not confine itself to considering whether that evidence, on its own, without the affidavit, established the extent of use of the contested mark (see, to that effect, judgment of 5 October 2022, Aldi Einkauf v EUIPO – Cantina sociale Tollo (ALDIANO), T‑429/21, not published, EU:T:2022:601, paragraph 60). In addition, the existence of contractual links between two distinct entities does not, on its own, mean that the affidavit from one of those entities is not that of a third party, but that of a person having close links with the party concerned, so that such a statement has less probative value (see judgment of 11 January 2023, Hecht Pharma v EUIPO – Gufic BioSciences (Gufic), T‑346/21, EU:T:2023:2, paragraph 50 (not published) and the case-law cited). Accordingly, it must be held that, in the present case, there was no reason to decline to take into account the information presented in the aforementioned declaration, as long as it was substantiated by other evidence submitted by the intervener.
41      The condition referred to in paragraph 40 above is met in the present case. It is apparent from the invoices included in Item No 5 that they were addressed to the licensee by its distributor and that they relate to the distribution of MAX magazine, as stated in their heading, which is not disputed by the applicant. In addition, the distribution of MAX magazine to various railway stations in Germany by the distributor is evidenced by various invoices submitted in Annex 7. Accordingly, it must be held that the declaration in question is substantiated by other evidence adduced by the intervener.
42      The applicant’s arguments challenging the probative value of the declaration must therefore be rejected.
43      In the third place, the applicant disputes the probative value of certain items of evidence originating outside the relevant period, namely (1)
one of the five invoices included in Item No 5, dated 30 September 2022, (2) Annex 2, which contained photographs showing the April 2023 issue of MAX magazine alongside other magazines in German and (3)
certain information about online sales figures for MAX magazine which did not relate to the relevant period.
44      In that regard, it is clear from the case-law that it is permissible for the assessment of the genuineness of use of a mark during the relevant period to take account, where appropriate, of any information subsequent to that period, which may make it possible to confirm or better assess the extent to which the trade mark was used during the relevant period and the real intentions of the intervener during that time (see, to that effect, order of 27 January 2004, La Mer Technology, C‑259/02, EU:C:2004:50, paragraph 31).
45      In the present case, it is important to keep in mind that a substantial part of the evidence was dated within the relevant period or contained details referring to it. Only a small proportion of the evidence produced by the intervener, namely the last invoice included in Item No 5, the photographs of the April 2023 issue of MAX magazine and some of the sales from MAX Germany online store evidenced in Annex 4 relate to sales after the relevant period, as the Board of Appeal noted. However, that evidence is still capable of confirming that the intervener’s efforts to relaunch its brand were real and that there was still a certain regularity to publication. That evidence, when taken together with the other evidence adduced by the intervener support the conclusion, in the context of the overall assessment of the genuine nature of the use of the contested mark, that the extent of that use was significant. Furthermore, as regards the last invoice included in Item No 5, dated 30 September 2022, the Court notes that, in fact, it covers the period from 1
to 30 September 2022. It therefore relates, to a large extent, to the relevant period.
46      In the fourth place, as regards the alleged lack of financial investment on the part of the intervener, it should be noted that the intervener endeavoured to relaunch its mark by means of the test issue authorisation and the licence agreement with two different publishers, enabling it to distribute many copies of MAX magazine to many points of sale in Germany. It thus sought to preserve or create an outlet on the market in question. Furthermore, it must be noted that, under the terms of those two agreements, the intervener received royalties on sales and on advertising featured in the magazines.
47      It follows that the applicant’s argument alleging that there was no financial investment on the part of the intervener must be rejected as unfounded.
48      In the fifth place, the applicant disputes the probative value of other evidence submitted by the intervener.
49      First of all, as regards the newspaper article dated 4 October 2021, the title of which indicates that the licensee took over the MAX licence with old friends, the applicant disputes the accuracy of the information in the article, namely the assertion that MAX magazine was published four times a year with a circulation of 45 000 copies. In that regard, suffice it to note that that document was not taken into account by the Board of Appeal when assessing genuine use of the contested mark. The argument is therefore ineffective.
50      Next, as regards the declaration signed by the representative of the online store for MAX magazine in Germany, the applicant disputes the probative value of that declaration on the grounds that online sales were insufficient. It should be pointed out that the Board of Appeal noted the small number of copies sold per issue and the small number of subscriptions. However, that evidence was taken into account by the Board of Appeal together with other evidence. Therefore, as EUIPO observes, that piece of evidence cannot be regarded in isolation when assessing its evidential value.
51      Lastly, as regards the probative value, disputed by the applicant, of Annexes 5 and 6 which relate to MAX magazine online, the applicant itself notes that the Board of Appeal did not take that information into account – and correctly so – on the grounds that it concerns the online magazine, whereas the contested mark covers magazines in Class 16, which constitute printed matter. That argument must therefore be rejected as ineffective.
52      In the light of all of the foregoing, it must be held that the Board of Appeal did not err in its assessment when it found that the evidence adduced by the intervener was sufficient to prove that the contested mark had been put to genuine use in the European Union during the relevant period for magazines in Class 16.
53      Furthermore, even assuming that, in stating that the Board of Appeal did not ‘carefully motivate’ genuine use of the contested mark, the applicant seeks to submit that the contested decision contained an insufficient statement of reasons in that regard, it must be held that that complaint is not substantiated. Moreover, in the present case, it must be noted that the considerations set out in paragraphs 32 to 48 of the contested decision disclose in a clear and unequivocal manner the reasoning that led the Board of Appeal to find that the evidence adduced by the intervener established genuine use of the contested mark for magazines in Class 16. It follows that the contested decision is not, in any event, vitiated by an insufficient statement of reasons.
54      It follows from all of the foregoing considerations that the single plea in law alleging infringement of Article 58(1)(a) of Regulation 2017/1001 is unfounded.
55      Accordingly, the applicant’s claims must be rejected in their entirety.
Costs
56      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.
57      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter.
58      By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event of a hearing being convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders MAX magazín s. r. o. to bear its own costs and to pay those incurred by RCS Mediagroup SpA;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Kingston
Marcoulli
Zilgalvis
Delivered in open court in Luxembourg on 11 March 2026.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.