JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
2 March 2022 (*)
(EU trade mark – Revocation proceedings – EU figurative mark apo-discounter.de – Partial revocation – Genuine use of the trade mark – Article 58(1)(a) of Regulation (EU) 2017/1001 – Proof of genuine use)
In Case T‑140/21,
Apologistics GmbH, established in Markkleeberg (Germany), represented by H. Hug, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Markus Kerckhoff, residing in Bergisch Gladbach (Germany), represented by M. Douglas, lawyer,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 8 December 2020 (Case R 1439/2019-5), relating to revocation proceedings between Mr Kerckhoff and Apologistics,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, C. Iliopoulos and R. Norkus (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 5 March 2021,
having regard to the response of EUIPO lodged at the Court Registry on 27 May 2021,
having regard to the response of the intervener lodged at the Court Registry on 21 May 2021,
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
Background to the dispute
1        On 11 October 2010, the applicant, Apologistics GmbH, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (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)).
2        Registration as a mark was sought for the following figurative sign:
3        The services in respect of which registration was sought are in Class 35 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, following the restriction made during the proceedings before EUIPO, inter alia, to the following description: ‘Retail services in relation to chemicals, pharmacy products, cosmetics and household goods, goods for the health sector’.
4        On 18 March 2011, that mark was registered as an EU trade mark under the number 9435496, inter alia for the services referred to in paragraph 3 above. That registration was published in Community Trade Marks Bulletin No 2011/056 of 22 March 2011.
5        On 23 March 2018, the intervener, Mr Markus Kerckhoff, filed an application for revocation with EUIPO, on the basis of Article 58(1)(a) of Regulation 2017/1001, on the ground that that mark had not been put to genuine use within a continuous period of five years. That application concerned, inter alia, all the services referred to in paragraph 3 above.
6        On 28 June 2019, the Cancellation Division revoked the contested mark in respect of, inter alia, the services referred to in paragraph 3 above.
7        On 5 July 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division.
8        By decision of 8 December 2020 (‘the contested decision’), the Fifth Board of Appeal of EUIPO partially annulled the decision of the Cancellation Division. After establishing that the conditions relating to place, time and extent of use had been met, the Board of Appeal found that the evidence provided by the applicant demonstrated genuine use of the contested mark, first, in connection with ‘retail services in relation to pharmaceutical preparations’, which is an independent subcategory of the general categories of chemicals, pharmacy products and goods for the health sector covered by the retail services in respect of which the contested mark had been registered, and, second, in connection with ‘retail services in relation to cosmetics’. However, it dismissed the appeal as regards retail services in relation to the other goods in respect of which the contested mark had been registered, finding, in essence, that the evidence produced by the applicant was insufficient to demonstrate the extent of use of that mark.
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision to the extent that the contested mark was revoked for retail services in relation to chemicals, pharmacy products, household goods and goods for the health sector;
–        order EUIPO to pay the costs.
10      EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
11      In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001. It contests, in essence, the Board of Appeal’s assessment of the proof of genuine use of the contested mark in connection with retail services in relation to chemicals, pharmacy products, household goods and goods for the health sector (‘retail services in relation to the four categories of goods’).
12      Relying, inter alia, on the invoices produced before EUIPO relating to the period from 2012 to 2017, the applicant claims that genuine use of the contested mark in connection with those services had been demonstrated, irrespective of whether pharmaceutical preparations are an independent subcategory of the goods to which those services relate.
13      EUIPO and the intervener dispute the applicant’s arguments.
14      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, if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
15      As to the criteria for assessing genuine use, under Article 10(3) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), which is applicable to revocation proceedings in accordance with Article 19(1) of that regulation, proof of use must relate to the place, time, extent and nature of use of the contested trade mark.
16      It should be recalled that, in proceedings for the revocation of a mark, it is, in principle, for the proprietor of the mark to establish 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).
17      In that regard, it is clear from the case-law that there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 39 and the case-law cited).
18      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.
19      To examine, in a particular case, whether a contested trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case (see judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42 and the case-law cited).
20      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 effective and sufficient use of the trade mark on the market concerned (see judgment of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28 and the case-law cited).
21      Furthermore, if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection only for the subcategory or subcategories to which the goods or services for which the trade mark has actually been used belong (see, to that effect, judgment of 14 July 2005, Reckitt Benckiser (España) v OHIM – Aladin (ALADIN), T‑126/03, EU:T:2005:288, paragraph 45).
22      With regard to goods or services in a broad category of goods, which may be subdivided into several independent subcategories, it is necessary to require the proprietor of the contested mark to adduce proof of genuine use of that mark for each of those autonomous subcategories. In that connection, 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 (judgment of 16 July 2020, ACTC v EUIPO, C‑714/18 P, EU:C:2020:573, paragraphs 39 and 43).
23      It is also clear from the case-law that the purpose or intended use is of fundamental importance in the definition of a subcategory of goods or services since consumers are searching primarily for a product or service which can meet their specific needs (judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 29).
24      However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant subdivisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category (judgment of 14 July 2005, ALADIN, T‑126/03, EU:T:2005:288, paragraph 45).
25      It is in the light of the foregoing that the applicant’s single plea in law must be examined.
26      As a preliminary point, it must be borne in mind that the contested mark was registered on 18 March 2011 and that the application for revocation was filed on 23 March 2018. Consequently, since the contested mark had been registered for more than five years at the date on which that application was filed, the applicant had to prove genuine use of that mark for the services in relation to the four categories of goods during the five-year period preceding the date of filing, namely from 23 March 2013 to 22 March 2018 inclusive (‘the relevant period’).
27      It should also be borne in mind that, in support of its action, the applicant refers to invoices relating to the period from 2012 to 2017 which it produced during the administrative procedure for the purpose of demonstrating genuine use of the contested mark, inter alia for retail services in relation to the four categories of goods. In that regard, it should be noted, as the Board of Appeal observed, that it may be appropriate to take into account invoices relating to 2012 which predate the relevant period. It is clear from the case-law that the consideration of such evidence relating to use made before or after the relevant period is possible, in so far as it makes it possible to confirm or better assess the extent to which the contested mark was used and the actual intentions of its proprietor during that period. However, such evidence can be taken into consideration only if other evidence relating to the relevant period has been produced (judgment of 30 January 2020, Grupo Textil Brownie v EUIPO – The Guide Association (BROWNIE), T‑598/18, EU:T:2020:22, paragraph 41). That is so in the present case.
28      As a further preliminary point, it should be noted that the concept of ‘pharmaceuticals’ referred to in paragraphs 75 and 77 to 82 of the contested decision must be regarded, in the particular circumstances of the present case, as being similar to the concept of ‘pharmaceutical preparations’.
29      That being said, it is necessary to examine whether, as the applicant claims, the evidence which it had submitted was sufficient, as regards retail services in relation to the four categories of goods, to demonstrate genuine use of the contested mark during the relevant period, such as to preserve the rights in that mark.
Genuine use of the contested mark in connection with retail services in relation to chemicals
30      Relying on a series of invoices which include, inter alia, the goods ‘Inneov homme Dichtes Haar Maenner Tabletten’, ‘Elmex Sensitive Professional Zahnpasta’, ‘Eucerin Th 3 % Urea Lotio[n] O/w mit [Carnitin]’, ‘Eucerin pH5 Lip Repair Crème’, ‘Roche Posay Effaclar Waschcreme’, ‘Lactrase 12.000 Fcc Kapseln’, ‘Magnesium Verla N Dragees’, ‘Bullrich Salz Tabletten’ and ‘Doppelherz Sport direct Vitamine+mineralien’, the applicant argues, in essence, that it has provided proof of genuine use of the contested mark in connection with retail services in relation to chemicals. Furthermore, it claims that the product ‘Frontline’, which appears on those invoices, constitutes both a chemical, because it contains a substance called Fipronil, which is an insecticide, and a household good, on account of its intended purpose, namely the treatment of animals against parasites.
31      EUIPO and the intervener dispute the applicant’s arguments.
32      It should be borne in mind that, in paragraph 75 of the contested decision, the Board of Appeal found, first of all, that the vast majority of the relevant evidence, in particular, advertising material, screenshots and invoices, related to pharmaceuticals. Next, in paragraph 77 of the contested decision, referring to the online dictionary Merriam Webster, it defined chemicals as substances obtained by a chemical process or producing a chemical effect. Lastly, the Board of Appeal considered that pharmaceuticals, which are or contain chemical substances, are an independent subcategory under the general category of chemicals in view of their specific medical purpose and found that genuine use of the contested mark had been demonstrated for retail services in relation to that subcategory of goods.
33      In that regard, it must be stated, first, as is apparent from the definition of the concept of chemical referred to in paragraph 32 above, which is not disputed by the applicant, that the category of chemicals, to which the retail services in respect of which the contested mark was registered relate, is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, in addition to the subcategory of pharmaceuticals. As EUIPO points out in its response, chemicals may have different purposes and, in particular, be used in industry, science, photography or agriculture.
34      Therefore, it must be held, in the light of the principles set out in paragraphs 21 to 23 above, that proof of use of the contested mark for retail services in relation to goods such as cosmetics which stimulate hair growth in men, toothpastes, body lotions, lip repair creams, washing lotions, lactase-based foodstuffs, magnesium supplements or nutritional supplements, referred to in paragraph 30 above, cannot extend the protection afforded by the contested mark to the entire broader category of chemicals to which the retail services relate on the sole ground that the products listed above are chemicals. Furthermore, although the applicant does not dispute that the category of chemicals to which the retail services relate encompasses a number of subcategories, the applicant has not put forward any argument enabling it to be established whether those goods belong to one of the subcategories of chemicals other than the subcategory of pharmaceuticals.
35      In any event, the applicant merely asserts, in a very summary fashion, that it has provided proof of genuine use of the contested mark for retail services in relation to chemicals, as is apparent from a considerable number of invoices for the years 2012 to 2017. However, a mere indication ‘chemical’ appearing on the invoice records alongside each product mentioned in paragraph 30 above is insufficient to establish that the products are chemicals. That is all the more true of the other material in the file, such as screenshots in relation only to some of those goods, which do not contain sufficient information to establish that the goods to which the applicant refers are goods falling within the broad category of chemicals covered by retail services. The applicant has therefore failed to demonstrate that the evidence relating to those goods proves genuine use of the contested mark in connection with retail services in relation to the entire broader category of chemicals.
36      Second, with regard to the product ‘Frontline’, which the applicant claims to be both a chemical, because it contains an insecticide called Fipronil, and a household good, because it is intended to treat animals against parasites, it should be noted that, assuming that it is a chemical, the evidence provided by the applicant indicates that only a relatively low volume of that product was sold under the contested mark during only part of the relevant period, namely between 2013 and 2015, with a single sale in 2016. As such, the sales volume of the everyday consumer product ‘Frontline’, over a limited period, does not demonstrate genuine use of the contested mark for retail services in relation to that product.
37      In any event, in the light of the broad category of chemicals to which the retail services relate, the evidence showing use of the contested mark in connection with retail services in relation to the product ‘Frontline’ does not allow the protection afforded by that mark to be maintained for that entire category.
38      It follows that the applicant’s arguments do not permit the inference that the Board of Appeal erred in finding that proof of genuine use of the contested mark had not been provided in connection with retail services in relation to chemicals, with the exception of goods falling within the subcategory of pharmaceuticals.
Genuine use of the contested mark in connection with retail services in relation to household goods
39      The applicant claims that it has provided proof of genuine use of the contested mark in connection with retail services in relation to household goods. In support of its view, it refers to the invoice records relating to the period from 2012 to 2017 and, in particular, to the product ‘Frontline’, listed on those invoice records, which, according to the applicant, is not only a chemical but also a household good, on account of its intended use for the treatment of animals against parasites.
40      EUIPO and the intervener dispute the applicant’s arguments.
41      It should be borne in mind that, in paragraphs 56, 84 and 85 of the contested decision, the Board of Appeal found that the evidence produced by the applicant was insufficient to demonstrate genuine use of the contested mark in connection with retail services relating to the general category of household goods.
42      In that regard, it should be noted that the applicant does not put forward any argument allowing the goods listed on the invoice records to be assimilated to the category of household goods, which covers a wide range of goods including domestic items and household maintenance products, even if only in respect of the product ‘Frontline’, which is a household good by reason of its intended purpose, namely the treatment of animals against parasites. However, in the light of the explanations given by the applicant, that product cannot be considered to have the same purpose as domestic items or to be intended for household maintenance.
43      In any event, assuming that ‘Frontline’ is a household good, the applicant has not demonstrated that the use of the contested mark in connection with retail services in relation to that product can be classified as genuine, as established in paragraph 36 above. Furthermore, although the Board of Appeal found that household goods constituted a general – and therefore, by implication, broad – category, the applicant did not dispute that assessment. Nor has the applicant demonstrated, in the light of the case-law cited in paragraph 24 above, that the category of household goods is a precise and circumscribed category such as to establish that the proof of use of the contested mark in connection with retail services in relation to the product ‘Frontline’ covers the use of that mark in connection with the entire category of household goods to which the retail services relate. As has been stated in paragraph 42 above, the category of household goods to which the retail services relate constitutes a broad category and may therefore be subdivided into several categories capable of being viewed independently for the purposes of the case-law referred to in paragraph 21 above. Accordingly, in any event, the proof of use of the contested mark in connection with the single product ‘Frontline’ is not capable of extending the protection conferred by that mark to the entire broader category of household goods to which the retail services relate.
44      Accordingly, the Board of Appeal made no error of assessment in finding that the evidence provided by the applicant was insufficient to establish genuine use of the contested mark in connection with retail services in relation to household goods.
Genuine use of the contested mark in connection with retail services in relation to pharmacy products and goods for the health sector
45      The applicant claims, first, that the goods referred to in the invoices which it produced are pharmacy products because they are being sold on an online pharmacy site and in other pharmacies, drugstores and parapharmacies. Second, the applicant claims that use of the contested mark has been proved not only in connection with pharmaceutical preparations, but also in connection with hygiene articles, cosmetics, food supplements and dietetic substances. Thus, in the light of the definition of pharmacy products and goods for the health sector set out in paragraphs 78 and 79 of the contested decision, the Board of Appeal should have found that proof of genuine use of the contested mark had also been provided in connection with retail services in relation to pharmacy products and goods for the health sector as a whole, and not merely in connection with the subcategory of pharmaceuticals. In any event, according to the applicant, since the Board of Appeal found that genuine use of the contested mark had been proved in connection with retail services in relation to cosmetics and pharmaceuticals, which belong to pharmacy products and goods for the health sector, the Board of Appeal erred in upholding the revocation of the applicant’s rights in the contested mark for retail services in relation to pharmacy products and goods for the health sector.
46      EUIPO and the intervener dispute the applicant’s arguments.
47      It should be borne in mind that, in paragraphs 78 and 79 of the contested decision, the Board of Appeal defined, respectively, pharmacy products and goods for the health sector. Thus, it found that pharmacy products are products offered in a pharmacy, drugstore or parapharmacy, which include a wide range of goods such as pharmaceuticals, cosmetics, food supplements, dietetic substances, medical accessories and medical devices, or hygiene articles. With respect to ‘goods for the health sector’, it found that that description is a very broad term which may include a wide range of different goods such as pharmaceuticals, food supplements, dietetic substances and medical apparatus, instruments and articles. Lastly, it found that genuine use of the contested mark had been demonstrated in connection with retail services in relation to pharmaceuticals, which constituted a subcategory of the two general categories of products referred to above, since they have a purpose which is different from other goods offered in the same places of sale. Moreover, in paragraph 72 of the contested decision, after finding that goods such as shower gels, roll-on deodorants and washing lotions constituted cosmetics, the Board of Appeal found that genuine use of the contested mark had also been demonstrated in connection with retail services in relation to cosmetics.
48      In paragraphs 84 and 85 of the contested decision, the Board of Appeal found that the evidence produced was insufficient to establish genuine use of the contested mark in connection with retail services in relation to pharmacy products and goods for the health sector, as well as their subcategories, apart from pharmaceutical preparations. It also considered that the evidence relating to the use of that mark in connection with nutritional supplements was insufficient to demonstrate the extent of that use.
49      As a preliminary point, it should be noted that the applicant does not dispute the finding in the contested decision that the categories of pharmacy products and goods for the health sector can be divided into several subcategories.
50      It should be noted, first, that, in support of its argument that genuine use of the contested mark in connection with retail services in relation to pharmacy products is established by the evidence of such use in connection with retail services in relation to cosmetics and hygiene articles, the applicant refers to certain invoices. Those invoices include, inter alia, goods such as antiperspirant sprays, roll-on deodorants, shower gels, body lotions, lip creams and washing lotions, which the applicant describes as cosmetics and hygiene articles. However, while it cannot be ruled out that those goods may constitute both cosmetics and hygiene articles, in the light of the broader category of pharmacy products to which the retail services relate, the evidence showing use of the contested mark in connection with retail services in relation to the abovementioned goods does not allow the protection afforded by that mark to be maintained for that entire category of pharmacy products to which the retail services relate.
51      Second, as regards the assessment of the proof of genuine use of the contested mark in connection with retail services in relation to food supplements and dietetic substances, it is apparent from the documents before the Court that the products to which the applicant refers in support of its argument in that regard are referred to as a ‘[food supplement]’, a ‘protein [nutrient]’, a ‘vitamin B [nutrient]’, a ‘pharmacy product for [dietetic] nutrition’, a ‘magnesium [nutrient]’, a ‘[lactase nutrient]’, a ‘biological, plant-based protein [nutrient]’, a ‘magnesium supplement’, a ‘tea for increased vitamin C and zinc requirements’, a ‘food supplement that promotes physical well-being’, a ‘[plant-based] food [supplement] [for better vascular tone and blood circulation]’, a ‘diet [nutrient] used by women [during the menopause]’ and a ‘dietary supplement’.
52      However, while some of the evidence suggests that those products are intended to supplement dietary needs, other evidence merely describes the nature and characteristics of those products, which are not relevant to determining to which of the two subcategories, namely food supplements or dietetic substances, the products mentioned in paragraph 51 above belong (see, to that effect and by analogy, judgment of 18 October 2016, August Storck v EUIPO – Chiquita Brands (Fruitfuls), T‑367/14, not published, EU:T:2016:615, paragraph 32). Therefore, it is impossible to determine whether genuine use of the contested mark has been demonstrated in connection with one of the two subcategories of goods to which the retail services relate.
53      In any event, it is apparent from the evidence produced by the applicant that the goods referred to in paragraph 51 above were sold in small retail quantities or indeed in a single sale. Although use of the mark need not always be quantitatively significant for it to be deemed genuine (judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 39), the applicant does not, however, demonstrate that that small quantity may be offset by the fact that use of the mark was extensive or very regular, since use of the contested mark in connection with retail services in relation to those goods took place only on a few occasions during each year of the relevant period. Accordingly, the argument that the applicant provided proof of genuine use of the contested mark in connection with retail services in relation to food supplements and dietetic substances must be rejected as unfounded and it is not necessary to rule on the argument that genuine use of the contested mark in connection with those goods demonstrates the genuine use of that mark in connection with retail services in relation to the general categories of pharmacy products and goods for the health sector.
54      Third, the Court also cannot accept the applicant’s argument that the use of the contested mark in connection with retail services in relation to pharmacy products and goods for the health sector is established since the Board of Appeal found that such use existed in connection with retail services in relation to cosmetics and pharmaceuticals, which belong to pharmacy products and goods for the health sector.
55      On the one hand, it must be borne in mind that the two categories consisting of pharmacy products and goods for the health sector to which, inter alia, the retail services in respect of which the contested mark was registered relate, namely retail services in relation to pharmacy products and goods for the health sector, are sufficiently broad for it to be possible to identify within them several subcategories. On the other, in the light of the case-law referred to in paragraphs 21 to 23 above, as regards the scope of the categories of goods to which the retail services at issue relate, the applicant has not succeeded in demonstrating that the use of the contested mark in connection with retail services related to the subcategories of pharmacy products and goods for the health sector other than those in respect of which the Board of Appeal found that such use had been established. Therefore, the proof of genuine use of the contested mark in connection with retail services in relation to cosmetics and pharmaceuticals does not allow the protection afforded by that mark to be maintained for the entire category of pharmacy products and goods for the health sector to which the retail services relate.
56      Furthermore, as is apparent from paragraph 50 above, such a finding cannot be invalidated, in the light of the case-law referred to in paragraphs 21 to 23 above, even if the applicant has provided proof of genuine use of the contested mark in connection with retail services in relation to hygiene articles, given that it is not disputed that the broad categories of pharmacy products and goods for the health sector are capable of being subdivided into independent subcategories other than hygiene articles, cosmetics and pharmaceuticals.
57      Moreover, it should be noted that to accept otherwise would result in an extension of the protection conferred by the contested trade mark to a disproportionate range of goods to which the retail services at issue relate (see, to that effect and by analogy, judgment of 24 April 2018, Kabushiki Kaisha Zoom v EUIPO – Leedsworld (ZOOM), T‑831/16, not published, EU:T:2018:218, paragraph 49).
58      Fourth, the Court must also reject the applicant’s argument that the places of sale indicated on the invoices produced, namely the website of the online pharmacy ‘apodiscounter.de’ and other pharmacies, drugstores and parapharmacies, make it possible to establish that all those goods are pharmacy products. In that regard, as the Board of Appeal found in paragraph 80 of the contested decision, pharmacy products include a wide range of goods which may in fact be offered in drugstores, pharmacies or parapharmacies. However, the fact that those goods are available in pharmacies does not mean that they cannot be available in other sales outlets. In any event, the sale, even the exclusive sale, of certain goods in pharmacies, drugstores and parapharmacies does not mean that they are necessarily pharmacy products (see, to that effect and by analogy, judgment of 17 November 2017, Endoceutics v EUIPO – Merck (FEMIBION), T‑802/16, not published, EU:T:2017:818, paragraph 38).
59      It follows from all of the foregoing that the applicant has failed to demonstrate, in its single plea in law, that the Board of Appeal’s findings concerning the genuine use of the contested mark in connection with retail services in relation to the four categories of goods, based on the evidence produced during the administrative procedure, were vitiated by error.
60      Accordingly, the single plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
61      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
62      Since 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.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Apologistics GmbH to pay the costs.
Marcoulli
Iliopoulos
Norkus
Delivered in open court in Luxembourg on 2 March 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.