JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
2 July 2025 (*)
( EU trade mark – Revocation proceedings – EU word mark VITAE – Article 58(1)(a) of Regulation (EU) 2017/1001 – Proof of genuine use )
In Case T‑402/24,
Vintae Luxury Wine Specialists SLU, established in Logroño (Spain), represented by L.M. Broschat García and L.M. Polo Flores, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Hanf, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Grande Vitae GmbH, established in Delmenhorst (Germany), represented by C. Saettel, lawyer,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, U. Öberg (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, Vintae Luxury Wine Specialists SLU, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 June 2024 (Case R 1156/2023-1) (‘the contested decision’).
Background to the dispute
2        On 12 November 2001, the intervener, Grande Vitae GmbH, obtained registration of the EU word mark VITAE.
3        The goods in respect of which the contested mark was registered are in Class 33 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 to the following description: ‘Alcoholic beverages (except beers)’.
4        On 30 December 2021, the applicant filed an application for revocation of that mark in respect of all the goods referred to in paragraph 3 above, on the basis of 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), on the ground that that mark had not been put to genuine use in the European Union within a continuous period of five years.
5        By decision of 3 April 2023, the Cancellation Division of EUIPO partially upheld the application for revocation. It revoked the contested mark in respect of the category of alcoholic beverages (except beers), apart from the subcategory of wines in Class 33.
6        On 2 June 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division, in that the contested mark had not been revoked in respect of the subcategory of wines.
7        On 5 October 2023, the intervener filed a cross-appeal with EUIPO against the decision of the Cancellation Division seeking the annulment of that decision to the extent that it had upheld the application for revocation.
8        By the contested decision, the Board of Appeal found that genuine use of the contested mark had been proved in respect of the subcategory of wines, but not in respect of the other goods referred to in paragraph 3 above. It therefore dismissed both the main action and the cross-appeal.
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to revoke the contested mark;
–        order EUIPO and the intervener to pay the costs of the proceedings before the Court and the Board of Appeal of EUIPO.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, should a hearing be convened.
11      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs of the proceedings before the Court and before EUIPO.
Law
Admissibility of the documents adduced for the first time before the Court
12      EUIPO and the intervener take the view that Annexes 1C and 2C to the application are inadmissible on the ground that they were submitted for the first time before the Court and that the Court cannot annul or alter decisions adopted by the Boards of Appeal on the basis of documents which the latter were unable to take into consideration.
13      On the same grounds, the intervener also disputes the admissibility of the ‘sources’ listed in paragraph 57 of the application. In that regard, it submits that those links to online information must be regarded as new evidence and declared inadmissible.
14      The Court recalls that Article 188 of its Rules of Procedure, entitled ‘Subject matter of the proceedings before the General Court’, determines the scope of its review of decisions adopted by EUIPO. Under that provision, ‘the pleadings lodged by the parties in proceedings before the General Court may not change the subject matter of the proceedings before the Board of Appeal.’
15      Thus, the parties’ line of argument and the evidence which may validly be submitted for assessment by the Court depend on the subject matter of the proceedings before the Board of Appeal.
16      According to the case-law of the Court of Justice, a party must be in a position to criticise all the assessments on which a decision of a Board of Appeal has been based before the General Court, as, under Article 263 TFEU, when read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, that party must be able to contest before the EU Courts each and every issue of fact and law on which an EU body bases its decisions (see, to that effect, judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 46).
17      In that regard, according to the case-law, it follows, inter alia, from Article 72(3) of Regulation 2017/1001 that the Court may annul or alter a decision under appeal if, at the time the decision was adopted, it was vitiated by one of the grounds for annulment or alteration set out in Article 72(2).
18      Thus, in so far as the judicial review exercised by the Court cannot consist of a mere repetition of a review previously carried out by the Board of Appeal, it must be recalled that it is not the Court’s function to review the facts in the light of documents adduced for the first time before it. To allow such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ submissions may not alter the subject matter of the proceedings before the Board of Appeal (see, to that effect, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraphs 52 to 55 and the case-law cited, and of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).
19      Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see judgment of 14 May 2009, ELIO FIORUCCI, T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).
20      In the present case, Annex 1C to the application corresponds to a report of the company register concerning the applicant, which contains financial information, such as its revenue in 2023 and in 2021, as well as its net profit in 2021 and its total assets. Annex 2C, which consists of a business report concerning the intervener, contains financial information, such as revenue and the total assets for the period from 2014 to 2022, as well as performance indicators and the balance sheet for the financial years between 2018 and 2022.
21      In addition, the ‘sources’ listed in paragraph 57 of the application are in the form of hyperlinks to the websites of the European Commission, the International Organisation of Vine and Wine, the Deutsches Weininstitut (German Wine Institute) and the Statista database.
22      It should be pointed out that Annexes 1C and 2C to the application, as well as the information to which the links listed by the applicant in paragraph 57 of the application give access, were submitted for the first time before the Court. Consequently, those annexes are inadmissible.
Substance
23      In support of its action, the applicant relies on two pleas in law. The first alleges infringement of Article 19 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), in so far as the Board of Appeal incorrectly took into account evidence which was manifestly irrelevant and manifestly insufficient.
24      The second plea alleges infringement of Article 58(1)(a) of Regulation 2017/1001, in so far as the Board of Appeal incorrectly found that the evidence provided by the intervener made it possible to prove genuine use of the contested mark.
25      As a preliminary point, it should be noted that, according to the case-law, the Court must interpret an applicant’s pleas in law by reference to their substance rather than their characterisation and thus characterise the pleas in law and the arguments in the application (see judgments of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraph 54 and the case-law cited, and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 51).
26      In that regard, as EUIPO correctly submits, although the first plea relates, according to its title, to an infringement of Article 19 of Delegated Regulation 2018/625, the applicant in fact disputes the Board of Appeal’s assessment of the probative value of certain evidence provided by the intervener, namely the summaries of sales.
27      Accordingly, the applicant’s arguments must be grouped into a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, in so far as the Board of Appeal incorrectly assessed the proof of genuine use of the contested mark.
28      Under Article 58(1)(a) of Regulation 2017/1001, the rights of the proprietor of the 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 its non-use.
29      According to settled case-law, there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee to consumers 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 (judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43, and of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 39).
30      As regards the criteria for assessing genuine use, under Article 10(3) of Delegated Regulation 2018/625, proof of use must relate to the place, time, extent and nature of use of the contested mark.
31      To assess whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, taking account of all the relevant factors in the case. In such an assessment, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 15 September 2011, centrotherm Clean Solutions v OHIM – Centrotherm Systemtechnik (CENTROTHERM), T‑427/09, EU:T:2011:480, paragraph 27 and the case-law cited). Thus, in the assessment of the evidence of the genuine use of a mark, 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 14 December 2022, Hotel Cipriani v EUIPO – Altunis (CIPRIANI FOOD), T‑358/21, not published, EU:T:2022:817, paragraph 51 and the case-law cited).
32      Moreover, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but has to be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (see judgment of 15 September 2011, CENTROTHERM, T‑427/09, EU:T:2011:480, paragraph 30 and the case-law cited).
33      It is in the light of the foregoing considerations that it is necessary to examine the arguments raised by the applicant according to which the Board of Appeal incorrectly found that the intervener had produced proof of genuine use of the contested mark for the wines.
34      The Court notes, as the Board of Appeal did, that, in view of the date on which the application for revocation was filed, namely 30 December 2021, it follows from Article 58(1)(a) of Regulation 2017/1001 that the reference period runs from 30 December 2016 to 29 December 2021 (‘the relevant period’).
35      In the present case, as is apparent from the file and as is noted in paragraph 5 of the contested decision, the intervener adduced the following evidence before the Cancellation Division in order to prove genuine use of the contested mark:
–        a table listing the invoices relating to VITAE wine issued between 2016 and 2018;
–        a table listing the invoices relating to GVITAE wine issued between 2016 and 2021;
–        a summary of the sales of VITAE and GVITAE wines made in 2016, together with a sample of invoices dating from 2016;
–        a summary of the sales of VITAE and GVITAE wines made in 2017, together with a sample of invoices dating from 2017;
–        a summary of the sales of VITAE and GVITAE wines made in 2018, together with a sample of invoices dating from 2018;
–        summaries of the sales of GVITAE wines made between 2019 and 2021, together with samples of invoices dating from between 2019 and 2021;
–        price lists for the intervener’s goods dating from October 2017;
–        photographs of VITAE wine bottles and labels;
–        labels and packaging of GVITAE wine;
–        undated photographs showing sales areas in shops in the Edeka commercial group stores and E-cent Dietrich for VITAE wine;
–        invoices dating from 2018, 2019 and 2020, addressed to the intervener in relation to brochures and banners referring to, inter alia, VITAE and GVITAE wines.
36      The Court notes that the applicant puts forward no argument challenging the specific assessments of the Board of Appeal relating to the nature and place of use of the contested mark. By contrast, its arguments are directed against the Board of Appeal’s assessments concerning the time and extent of use of that mark.
37      In the first place, as regards the time of use, the Board of Appeal first noted, in paragraph 45 of the contested decision, that most of the evidence dated from the relevant period and that, although it referred to only two years of that period, it was sufficient that use had been proved for only part of that period in order to be classified as genuine. Next, in paragraphs 46 and 47 of that decision, it stated that the invoices dating from 2016 had to be taken into account, even though they predated the relevant period, in so far as the other evidence related to that period and that, therefore, those invoices provided information on the use of the contested mark during the said relevant period and on the intervener’s intentions. Lastly, it concluded, in paragraph 48 of the contested decision, that the evidence in the file provided sufficient indications concerning use during the relevant period.
38      The applicant disputes that assessment by the Board of Appeal and maintains that the contested mark has not been regularly used, given that there is no evidence of sales for the years 2019 to 2021.
39      EUIPO and the intervener dispute the applicant’s line of argument.
40      In the present case, it is true, as is apparent from the contested decision, that the invoices on which the contested mark appears relate to only two years of the relevant period, namely 2017 and 2018.
41      Nevertheless, it is sufficient that the contested mark have been put to genuine use during a part of the relevant period in order to prove such use (see, to that effect, judgment of 16 December 2008, Deichmann-Schuhe v OHIM – Design for Woman (DEITECH), T‑86/07, not published, EU:T:2008:577, paragraph 52 and the case-law cited). Article 58(1)(a) of Regulation 2017/1001 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 23 September 2020, Osório & Gonçalves v EUIPO – Miguel Torres (in.fi.ni.tu.de), T‑601/19, not published, EU:T:2020:422, paragraph 46 and the case-law cited). Therefore, what is required is not use throughout the entire period of five years, but during a period long enough to establish that such use is genuine (judgment of 16 November 2011, Buffalo Milke Automotive Polishing Products v OHIM – Werner & Mertz (BUFFALO MILKE Automotive Polishing Products), T‑308/06, EU:T:2011:675, paragraph 74).
42      Thus, a period of two years within the relevant period may be regarded as sufficiently long to prove genuine use of the contested mark. Furthermore, as the Board of Appeal states in paragraph 47 of the contested decision, although the invoices and the summaries of sales relating to 2016 do not, on their own, permit the conclusion that there has been genuine use of the contested mark, proof of that type, far from being irrelevant, must, in the present case, be taken into account and should be evaluated in conjunction with the rest of the evidence, inasmuch as they can offer subsequent proof of real and genuine commercial exploitation of that mark (see, 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 54 and the case-law cited).
43      Consequently, the applicant’s line of argument disputing the Board of Appeal’s assessments relating to the time of use must be disregarded.
44      In the second place, as regards the extent of use, the Board of Appeal found that the evidence adduced by the intervener, such as the 121 invoices dating from 2017, the 6 invoices dating from 2018, the summaries of sales and the invoices dating from 2016 and the summaries of sales dating from 2017 and 2018, reached the minimum threshold necessary to demonstrate the extent of use to which the contested mark had been put during the relevant period. Furthermore, the Board of Appeal noted, in paragraph 62 of the contested decision, that the decrease in the number of invoices between 2017 and 2018 did not raise doubts as to the consistency and accuracy of the data, since the use did not necessarily have to be continuous throughout the relevant period. Lastly, it found, in paragraphs 64 to 67 of that decision, that, contrary to what had been stated in the expert report provided by the applicant, the summaries of sales were not inconsistent, unverifiable or deprived of technical rigour, but constituted official accounting documents which could be related to the invoices and whose validity was not called into question by certain presentation problems, such as difference in the thickness of lines or fonts.
45      First, the applicant claims that the sales figures set out in the summaries of sales cannot be taken into account, because they are based on unreliable documents. The applicant submits that the Board of Appeal incorrectly regarded the summaries of sales as official accounting documents. In support of its line of argument, it submits that, in accordance with German law and European legislation, an official accounting document must satisfy specific conditions, such as the signature, in order for it to be authenticable and verifiable.
46      Therefore, the applicant submits that the lack of signatures and of indication of the source from which the data in question originate weakens the probative value of the documents adduced by the intervener, which can only be regarded as data tables for internal use. In addition, it relies on the findings of an expert report (Annexes 1B and 2B to the application) confirming that the lack of a signature is detrimental to the credibility and reliability of the data presented in those documents.
47      Furthermore, the applicant claims that the presence of the GVITAE mark in the summaries of sales gives a false impression of the extent of use of the contested mark for the years 2019 to 2021 and renders those documents illegible.
48      In addition, the applicant claims that the data submitted contain irregularities. Thus, the difference in the number of invoices provided for the years 2017 and 2018 and the lack of invoices for the years 2019 to 2021 raise doubts as to the consistency and accuracy of the data. The intervener has not sufficiently explained that difference. Moreover, it is striking that, despite a smaller number of invoices in 2018 than in 2017, the amount of net sales is higher. Furthermore, the summaries of sales do not correspond exactly to the invoices adduced, since an invoice does not appear in them.
49      Second, the applicant disputes the Board of Appeal’s assessment relating to the extent of use of the contested mark, in that it is clearly insufficient and, specifically, in that the Board of Appeal did not analyse it in the context of the European and German wine markets. The applicant claims that the volume of sales is very low for the markets concerned and indicates only limited penetration of those markets. In addition, it submits that sales of wines under the VITAE mark are insignificant in the intervener’s overall business. Lastly, the applicant relies on case-law precedents and on EUIPO’s decision-making practice relating to mass consumption markets. Furthermore, according to the applicant, in the light of the decision of the Fifth Board of Appeal of 29 April 2019, CHOCOLATE (R 136/2019-5), the volume of sales of goods bearing the VITAE mark does not meet the minimum threshold for maintaining or creating market shares in Germany for the goods covered by that mark.
50      EUIPO and the intervener dispute the applicant’s arguments.
51      On the one hand, as regards the probative value of the summaries of sales, it must be borne in mind that the prevailing principles of EU law is the unfettered evaluation of evidence, from which it follows, inter alia, that the sole criterion relevant in that evaluation is the reliability of the evidence (see, to that effect, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 49). In order to assess the evidential value of a document, regard must be had to the credibility of the account it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (judgment of 7 June 2005, Lidl Stiftung v OHIM – REWE-Zentral (Salvita), T‑303/03, EU:T:2005:200, paragraph 42).
52      First, as the intervener has correctly stated, Article 10(4) of Delegated Regulation 2018/625 does not require the submission of signed official accounting documents as proof of genuine use. That article provides that proof of use is 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. Thus, as EUIPO correctly points out, there is no rule of law requiring a document to be disregarded as unreliable because it is not signed.
53      In the present case, it is true that the summaries of sales originate from the intervener; however, they provide precise information on the sales, since they are in the form of tables consisting of several separate columns referring to the customer, the invoice number, the date, the unit price, the quantity of products sold and the gross and net sales. In addition, the invoices provided by the intervener are referred to in those documents.
54      Thus, the consistency and veracity of the sales are established by the fact that the elements of the invoices appear in the summaries of sales. In those circumstances, and contrary to what the applicant claims, the probative value of the summaries of sales cannot be affected by the lack of signature in those documents. Furthermore, the origin of the data cannot be regarded as unknown, since the majority of those data appear in the invoices, issued by the intervener, the veracity of which is not disputed by the applicant, as the intervener submits.
55      Therefore, the summaries of sales constitute reliable documents.
56      Second, as regards the reference, in the summaries of sales, to data relating to the GVITAE mark, the Court points out, contrary to what the applicant puts forward, that the Board of Appeal, in paragraph 66 of the contested decision, expressly stated that it would limit its analysis to the goods sold under the reference VITAE IGT Cuvée Puglia 0.75 l – Article No 27000 0035 and that it would disregard the data relating to the other marks in the summaries of sales. That is confirmed by the total amount of sales taken into account by the Board of Appeal in paragraph 65 of that decision.
57      Third, as regards the alleged irregularities concerning the invoices and the summaries of sales, those arguments are not such as to call into question the probative value of the summaries of sales. The lack of invoices for the years 2019 to 2021 pertains to the analysis of the time of use and not to the probative value of the evidence. In addition, the difference in the number of invoices between 2017 and 2018 and the fact that a smaller number of invoices issued in 2018 corresponds to a higher amount of net sales than in 2017 do not raise doubts as to the accuracy of the sales made in 2017 and 2018, as are set out in the summaries of sales. Those invoices represent only a sample of the intervener’s sales and a more limited number of invoices may represent larger quantities sold.
58      In the light of the foregoing, the Court finds, as the Board of Appeal did in paragraph 62 of the contested decision, that the decrease in the number of invoices between 2017 and 2018 does not raise doubts as to the consistency and accuracy of the data. The same is true of the lack of invoices for the years 2019 to 2021 and of the fact that the amount of sales in 2018 is higher than in 2017, whereas the number of invoices is lower.
59      Consequently, the Board of Appeal committed no error of assessment in finding that the amounts set out in the summaries of sales could be taken into account as part of the overall analysis of the evidence, for the purposes of establishing genuine use of the contested mark.
60      On the other hand, concerning the extent of the use made of the contested mark, account must be taken, in particular, of the commercial volume of all the acts of use on the one hand and the duration of the period in which those acts of use occurred, and the frequency of those acts, on the other (judgment of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 35).
61      The question whether use is sufficient to maintain or create market share for the goods or services protected by the mark thus depends on several factors and on a case‑by‑case assessment. The characteristics of those goods and services, the frequency or regularity of the use of the trade mark, whether the mark is used for the purpose of marketing all the identical goods or services of the proprietor or merely some of them, or evidence of use which the proprietor is able to provide, are among the factors which may be taken into account (judgment of 16 November 2011, BUFFALO MILKE Automotive Polishing Products, T‑308/06, EU:T:2011:675, paragraph 50).
62      Accordingly, that assessment entails a degree of interdependence between the factors taken into account. Thus, the low volume of goods marketed under a mark may be offset by a high intensity or a settled period of use of that mark or vice versa. In addition, the turnover and the volume of sales of the goods under the contested trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services on the relevant market. As a result, use of the mark at issue need not always be quantitatively significant in order to be deemed genuine (see judgment of 16 November 2011, BUFFALO MILKE Automotive Polishing Products, T‑308/06, EU:T:2011:675, paragraph 51 and the case-law cited).
63      In the present case, the invoices show the sale of 4 116 bottles of VITAE wine, in particular in Germany, in the amount of EUR 9 887, in 2017 and of 101 bottles, in Germany, in the amount of EUR 289.06, in 2018. Furthermore, the summaries of sales for the years 2017 and 2018 show a total gross amount of EUR 13 152.58 and EUR 5 784.25 respectively.
64      First, that evidence shows that the contested mark was used regularly between December 2016 and December 2018, that is to say, during a substantial part of the relevant period. In addition, the 134 invoices relating to 2016 show the sale of 6 660 bottles, for an amount ranging from EUR 16 916.4 to EUR 17 249.4 net, the net unit price varying from EUR 2.54 to EUR 2.59 over that period, and allow the consistency of that use to be proved.
65      Next, it should be noted that those invoices were addressed to various distributors in Germany and to a customer in Australia.
66      Lastly, although the commercial volume of the use of the contested mark is not particularly high, the invoices adduced before the Cancellation Division demonstrate that the use to which the contested mark was put was of a sufficient extent to constitute a real and genuine commercial effort and that it was not merely token.
67      Consequently, the Board of Appeal was right to find, in paragraph 69 of the contested decision, that the evidence adduced by the intervener demonstrated a certain extent of use of the contested mark during the relevant period and to infer that such use was not merely token.
68      The applicant’s other arguments are not such as to call that finding into question.
69      As regards the analysis of the extent of use in the context of the European and German wine markets, it is true that the characteristics of the market at issue are among the factors which must be taken into account. Where, as in the present case, they are everyday consumer goods, it is necessary to assess the commercial volume of sales made under the contested mark in the light of the size of the market in question. However, that is not the only criterion to be taken into account, as has been pointed out in paragraph 60 above (see, to that effect, judgment of 14 December 2022, CIPRIANI FOOD, T‑358/21, not published, EU:T:2022:817, paragraphs 111 and 112 and the case-law cited).
70      Furthermore, as EUIPO and the intervener maintain, the purpose of the genuine use requirement is not to assess commercial success or to review the economic strategy of an undertaking, nor is it to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (judgment of 2 February 2016, Benelli Q.J. v OHIM – Demharter (MOTOBI B PESARO), T‑171/13, EU:T:2016:54, paragraph 68). Thus, even minimal use can be sufficient to be deemed genuine. Accordingly, it is not possible to determine a priori and in the abstract what quantitative threshold should be chosen in order to determine whether use is genuine or not, which means that a de minimis rule, which would not allow EUIPO or, on appeal, the General Court, to appraise all the circumstances of the dispute before it, cannot therefore be laid down (judgment of 2 February 2016, MOTOBI B PESARO, T‑171/13, EU:T:2016:54, paragraph 73).
71      In that regard, a comparison of the volume of sales of the intervener’s wine with the volume of the European and German wine markets would lead to an underestimation of the relative scale of the intervener’s sales. Such reasoning would tend to limit trade mark protection to large-scale commercial use, which is contrary to the case-law cited in paragraph 29 above, according to which 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 for which it is registered.
72      It follows that the percentage comparison of the volume of the intervener’s sales in relation to the volume of the European and German wine markets is not relevant to the analysis of the genuineness of the contested mark. Moreover, contrary to what the applicant claims, the Cancellation Division took into account the relevant market, in that it concluded that the numerous invoices dating from 2017 and 2018 were sufficient to prove the extent of use, even taking into account the nature of the goods and the relevant market. Consequently, in paragraph 97 of the contested decision, the Board of Appeal was correct to confirm that assessment and to find that, in the light of the evidence adduced by the intervener, the extent of use was not merely token.
73      That finding is not invalidated by the applicant’s reference to the judgments of 5 June 2014, European Drinks v OHIM – Alexandrion Grup Romania (Dracula Bite and DRACULA BITE) (T‑495/12 to T‑497/12, not published, EU:T:2014:423), and of 18 March 2015, Naazneen Investments v OHIM – Energy Brands (SMART WATER) (T‑250/13, not published, EU:T:2015:160). As regards the first judgment relied on by the applicant, the proprietor of the contested mark had provided only six invoices, which covered only a period of less than three months and close to the end of the reference period, which is not the case here. Furthermore, as regards the second judgment relied on by the applicant, the relevant market not being the same, it is not possible to compare the situation at issue in that case with that in the present case.
74      As regards the decisions of EUIPO relating to mass consumption markets relied on by the applicant, the Court recalls that the legality of the decisions of Boards of Appeal must be assessed solely on the basis of Regulation 2017/1001, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice of those boards (see judgment of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47 and the case-law cited, and order of 11 February 2021, Klose v EUIPO, C‑600/20 P, not published, EU:C:2021:110, paragraph 21 and the case-law cited).
75      In the present case, the Board of Appeal correctly concluded that the application for revocation of the contested mark had to be rejected as regards the subcategory of wines, given that the conditions necessary for the application of Article 58(1)(a) of Regulation 2017/1001 had not been satisfied, with the result that the applicant cannot usefully rely, for the purposes of invalidating that finding, on previous decisions of the Board of Appeal.
76      Lastly, as regards the failure to compare the sales of VITAE wines with the total amount of the intervener’s sales, it must be pointed out, as EUIPO does, that that argument is based on inadmissible annexes, given that they were adduced for the first time before the Court.
77      It follows from the foregoing considerations that the applicant’s single plea in law, relating to the Board of Appeal’s incorrect assessment of the proof of genuine use of the contested mark, must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
78      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.
79      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener before the Court, in accordance with the form of order sought by the intervener.
80      As regards the intervener’s request that the applicant be ordered to pay the costs incurred before EUIPO, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, point 3 of the operative part, read in the light of paragraph 103 of that decision, continues to govern the costs incurred in the proceedings before the Cancellation Division and in the appeal proceedings before EUIPO (see, to that effect, judgment of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø), T‑399/20, EU:T:2021:442, paragraph 64 and the case-law cited).
81      By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as a hearing has not been organised, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Vintae Luxury Wine Specialists SLU to bear its own costs and to pay those incurred by Grande Vitae GmbH;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Costeira
Öberg
Zilgalvis
Delivered in open court in Luxembourg on 2 July 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.