JUDGMENT OF THE GENERAL COURT (Second Chamber)
24 September 2025 (*)
( EU trade mark – Revocation proceedings – EU figurative mark representing two horizontal black chevrons – Action for annulment – Time limits for instituting proceedings – Admissibility – Genuine use of the mark – Article 18(1)(a) and Article 58(1)(a) of Regulation (EU) 2017/1001 – Nature of use of the mark – Form differing in elements that do not alter the distinctive character of the mark – Obligation to state reasons – Article 94(1) of Regulation 2017/1001 )
In Case T‑390/23,
Barry’s Bootcamp Holdings LLC, established in Miami, Florida (United States), represented by M. Hawkins, T. Dolde and C. Zimmer, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Hummel Holding A/S, established in Aarhus (Denmark), represented by S. Pedersen, lawyer,
THE GENERAL COURT (Second Chamber),
composed, at the time of the deliberations, of A. Marcoulli, President, J. Schwarcz (Rapporteur) and L. Spangsberg Grønfeldt, Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
having regard to the order of 11 January 2024, by which it reserved its decision on the plea of inadmissibility raised by Hummel Holding A/S until it rules on the substance of the case,
further to the hearing on 9 January 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Barry’s Bootcamp Holdings LLC, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 April 2023 (Case R 1423/2022‑2) (‘the contested decision’).
Background to the dispute
2        On 13 May 2019, the applicant lodged an application with EUIPO requesting that the intervener, Hummel Holding A/S, have its rights revoked in respect of the EU figurative mark represented below:
3        The goods covered by that mark in respect of which revocation is requested concerned the areas of leather goods, clothing and sports. More specifically, they are in Classes 18, 25 and 28 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.
4        The ground relied on in the application for revocation is 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 1 June 2022, the Cancellation Division declared a revocation in part, with registration being maintained for the following goods in Class 25: ‘Casual footwear, also for use in sports (not included in other classes)’ (‘the goods at issue’).
6        On 1 August 2022, the applicant lodged an appeal before EUIPO against the decision of the Cancellation Division, on the grounds that the latter had dismissed the application for revocation and thus maintained the contested mark in respect of the goods referred to in paragraph 5 above.
7        By the contested decision, the Second Board of Appeal of EUIPO dismissed the appeal.
8        After noting that the contested mark was purely figurative and that it consisted of two black chevrons pointing horizontally to the right, depicted on a white background, with the space between the chevrons being the same width as each of the chevrons, the Board of Appeal found, in the first place, that it was necessary to analyse the variants of that mark that were contained in the evidence of use submitted by the intervener. On the one hand, it found that three of those variants differed substantially from the registered form of the contested mark and could not therefore be considered for the purpose of proving the genuine use of that mark. On the other hand, it found that the contested mark appeared in two other variants that could be considered for the purpose of proving genuine use. The Board of Appeal noted that, in accordance with Article 18(1)(a) of Regulation 2017/1001, those two variants were forms that differed in terms of elements that did not alter the distinctive character of the contested mark in the form in which it had been registered and that it was therefore necessary to take them into account for the purpose of assessing the genuine use of that mark.
9        In the second place, pursuant to the combined provisions of Article 10(3) and Article 19(1) 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), the Board of Appeal verified that the evidence provided by the intervener established the place, time, extent and nature of use of the contested mark in respect of the goods for which revocation had not been declared. It found that genuine use had been demonstrated for those goods and that the applicant’s appeal should be dismissed.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the intervener to pay the costs.
11      EUIPO contends that the Court should:
–        dismiss the appeal;
–        order the applicant to pay the costs in the event that a hearing is convened.
12      The intervener contends that the Court should:
–        dismiss the appeal as inadmissible and, in any event, unfounded;
–        order the applicant to pay the costs incurred before the Board of Appeal.
Law
13      The applicant puts forward two pleas in law. It alleges, in the first, infringement of Article 94(1) of Regulation 2017/1001 and, in the second, infringement of Article 58(1)(a) thereof.
14      Before examining the pleas in law put forward by the applicant, it is necessary to rule on the plea of inadmissibility raised by the intervener, the examination of which was reserved for the examination of the substance of the case by order of the Court of 11 January 2024, adopted pursuant to Article 130(7) of the Rules of Procedure of the General Court.
Admissibility of the action
15      The intervener argues that the action before the Court is inadmissible, on the grounds that it was not lodged within the applicable time limit. More specifically, it argues that, first, the applicant did not bring the action within the time limit laid down in Article 72(5) of Regulation 2017/1001 and, secondly, the grant of an additional single period of 10 days, provided for by Article 60 of the Rules of Procedure, is not applicable to the time limits prescribed under Regulation 2017/1001.
16      The applicant contends that the plea of inadmissibility raised by the intervener is inadmissible and, in any event, unfounded. EUIPO has not submitted any observations on the admissibility of the action.
17      It must be stated that, in accordance with Article 72(5) of Regulation 2017/1001, an action against a decision of a Board of Appeal of EUIPO must be brought before the Court within two months of the date of notification of that decision. Furthermore, it is apparent from Article 60 of the Rules of Procedure that the procedural time limits for bringing actions before the Court are to be extended on account of distance by a single period of 10 days.
18      The single extension on account of distance of 10 days provided for by Article 60 of the Rules of Procedure applies to all the procedural time limits laid down by the Treaties, the Statute of the Court of Justice of the European Union and the Rules of Procedure (see judgment of 1 December 2021, Inditex v EUIPO – Ffauf Italia (ZARA), T‑467/20, not published, EU:T:2021:842, paragraph 33 and the case-law cited).
19      In the present case, the contested decision was placed on 27 April 2023 in the inbox of the applicant’s legal representative on EUIPO’s secure electronic communication platform (see Annex A.4 to the application).
20      According to Article 4(5) of Decision No EX‑20‑9 of the Executive Director of EUIPO of 3 November 2020 on communication by electronic means, applicable ratione temporis in the present case, ‘notification will be deemed to have taken place on the fifth calendar day following the date on which [EUIPO] placed the document in the user’s inbox’. Consequently, in the present case, notification of the contested decision is deemed to have taken place on 2 May 2023.
21      In accordance with Article 72(5) of Regulation 2017/1001, the applicant could bring an action within two months of the date of notification of the decision, to which was added the extension on account of distance provided for in Article 60 of the Rules of Procedure.
22      Therefore, the time limit for bringing an action before the Court expired at 00:00 on 12 July 2023.
23      Since the action was brought on 12 July 2023, it is not out of time and, without there being any need to rule on the admissibility of the intervener’s plea, that plea must be dismissed as unfounded.
The first plea, alleging infringement of Article 94(1) of Regulation 2017/1001
24      By its first plea, the applicant submits that it is impossible to ascertain, from the contested decision, the grounds on which the Board of Appeal found that the proof submitted by the intervener was sufficient to establish genuine use of the contested mark in respect of the goods at issue. It submits that the contested decision does not contain any response to its argument that the Board of Appeal should not consider the decorative use of the contested mark on footwear items, since such use resembles that of a position mark, for which registration had been previously refused. According to the applicant, the Board of Appeal did not explain why that decorative use, which is therefore devoid of any distinctive character, could constitute use as a trade mark.
25      EUIPO and the intervener dispute the applicant’s arguments.
26      According to Article 94(1) of Regulation 2017/1001, decisions of EUIPO are to state the reasons on which they are based.
27      The duty to state reasons thus enshrined has the same scope as that deriving from Article 296 TFEU. It is settled case-law that the statement of reasons required by Article 296 TFEU must set out clearly and unequivocally the reasoning of the author of the act, in order to enable interested parties to know the purported justification for the measure taken and to enable the EU judicature to exercise its power of review (see judgments of 11 December 2014, CEDC International v OHIM – Underberg (Shape of a blade of grass in a bottle), T‑235/12, EU:T:2014:1058, paragraph 42 and the case-law cited, and of 7 July 2021, Ardagh Metal Beverage Holdings v EUIPO (Combination of sounds on opening a can of soft drink), T‑668/19, EU:T:2021:420, paragraph 63 and the case-law cited).
28      The Board of Appeal is not obliged to express a view on every argument submitted by the parties. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 29 November 2016, Chic Investments v EUIPO (eSMOKING WORLD), T‑617/15, not published, EU:T:2016:679, paragraph 102 and the case-law cited).
29      Finally, the review of compliance with the obligation to state reasons for a decision subject to review by the EU judicature, which relates to an infringement of essential procedural requirements and to the question whether the decision discloses in a clear and unequivocal fashion the reasoning followed by the institution that adopted it, must be distinguished from the review of the merits of that decision, which relates to an infringement of the applicable rules of law (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraphs 63 and 67).
30      In the present case, the Board of Appeal found that the contested mark had been placed on the catalogues submitted by the intervener and that it also appeared directly on footwear articles. It inferred from that that the contested mark had been used in accordance with its essential function as an indicator of origin.
31      Furthermore, as regards the decision of the Fifth Board of Appeal of 15 February 2019 in Case R 2604/2017‑5, relied on by the applicant and in which registration of a sign consisting of two chevrons placed on the side of a sports shoe was refused on account of its decorative nature and therefore its lack of distinctive character, the Board of Appeal noted, in the contested decision, that that case concerned a basic non-distinctive position mark, but which, in a subsequent decision of 7 October 2022 of the First Board of Appeal in Case R 208/20222‑1, was recognised as having acquired distinctive character through use.
32      It follows from those considerations set out in the contested decision that, as EUIPO maintains, the Board of Appeal examined the applicant’s argument alleging decorative use of the contested mark, including the earlier decision in Case R 2604/2017‑5 relied on by the applicant in support of that argument.
33      The grounds relied on in the contested decision and set out in paragraphs 30 and 31 above for rejecting the applicant’s argument alleging decorative use of the contested mark are, moreover, sufficient to enable the Court to review their merits and they put the applicant in a position to challenge their legality, which, moreover, is the subject of the second part of the second plea examined below.
34      Consequently, the first plea in law must be rejected.
The second plea, alleging infringement of Article 58(1)(a) of Regulation 2017/1001
35      The second plea is, in essence, divided into two parts. By the first part, the applicant criticises the Board of Appeal for having taken into account forms of the contested mark that alter the distinctive character of that mark. By the second part, it submits that the use of the contested mark is decorative and is therefore not use as a trade mark.
The first part of the second plea, relating to the use of the contested mark in forms other than that registered
36      By the first part of the second plea, the applicant submits that, in the evidence submitted to the Board of Appeal, the variations of the contested mark alter that mark to such a degree that they alter its distinctive character, with the result that they cannot be taken into account for the purpose of proving genuine use without infringing Article 18(1)(a) of Regulation 2017/1001. The contested mark is, at most, distinctive to a low degree, which means that even minor alterations constitute unacceptable variations of the registered form.
37      EUIPO and the intervener dispute the applicant’s arguments.
38      According to Article 18(1)(a) of Regulation 2017/1001, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered.
39      The purpose of Article 18(1)(a) of Regulation 2017/1001, which avoids imposing strict conformity between the form of the trade mark as used and the form in which the mark was registered, is to allow its proprietor, in the commercial exploitation of the sign, to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the sign used in trade differs from the form in which it was registered only in insignificant respects, and the two signs can therefore be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark which was registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (see judgments of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 18 and the case-law cited; of 8 June 2022, Muschaweck v EUIPO – Conze (UM), T‑293/21, EU:T:2022:345, paragraph 113 (not published) and the case-law cited; and of 16 November 2022, Epsilon Data Management v EUIPO – Epsilon Technologies (EPSILON TECHNOLOGIES), T‑512/21, not published, EU:T:2022:710, paragraph 23 and the case-law cited).
40      The finding of an alteration of the distinctive character of the registered mark requires an assessment of the distinctive and dominant character of the elements added, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the different elements within the arrangement of the trade mark (see judgments of 23 September 2020, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle), T‑796/16, EU:T:2020:439, paragraph 139 (not published) and the case-law cited, and of 8 June 2022, UM, T‑293/21, EU:T:2022:345, paragraph 114 (not published) and the case-law cited).
41      For the purposes of that finding, account must be taken of the inherent qualities and, in particular, the greater or lesser degree of distinctive character of the registered mark. The weaker the distinctive character, the easier it will be to alter it by adding a component that is itself distinctive, and the more the mark in question will lose its ability to be perceived as indicative of the origin of the product. The reverse is also true (see, to that effect, judgments of 13 September 2016, hyphen v EUIPO – Skylotec (Representation of a polygon), T‑146/15, EU:T:2016:469, paragraph 29 and the case-law cited, and of 23 September 2020, Shape of a blade of grass in a bottle, T‑796/16, EU:T:2020:439, paragraph 140).
42      Accordingly, the question whether a contested mark has been used in a form differing in elements that alter the distinctive character of that mark in the form in which it was registered calls for a two-stage analysis. It is necessary, first, to rule on the degree of distinctive character of that mark and then, secondly, to determine whether that distinctive character has been altered in the modified form of the mark (see, to that effect, judgments of 10 October 2017, Klement v EUIPO – Bullerjan (Form of an oven), T‑211/14 RENV, not published, EU:T:2017:715, paragraphs 37 and 38, and of 16 November 2022, EPSILON TECHNOLOGIES, T‑512/21, not published, EU:T:2022:710, paragraphs 24, 25 and 37).
–       The degree of distinctiveness of the contested mark
43      First, in paragraph 46 of the contested decision, the Board of Appeal noted that the contested mark enjoyed a presumption of validity as a result of its registration and could not therefore be regarded as lacking distinctive character, which, moreover, the applicant has not disputed.
44      That assessment is in line with settled case-law according to which it is necessary to acknowledge a certain degree of distinctiveness of a registered trade mark and from which it follows that a registered trade mark cannot be regarded as generic, descriptive or devoid of any distinctive character, without calling into question its validity in revocation proceedings (see, to that effect, judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 43 and the case-law cited). Thus, in the present case, the contested mark has at least a minimum degree of distinctiveness that cannot be called into question in the present revocation proceedings.
45      Secondly, the Board of Appeal found that the contested mark consisted of a purely figurative sign composed of two black chevrons pointing horizontally to the right, depicted on a white background, the space between the chevrons being the same width as each of the chevrons. The Board of Appeal also noted that the two chevrons were identical and that they were not basic geometric shapes, that they were characterised by their outline, their equal thickness and width, the equal distance between them and the contrast between their colour and that of the background on which they appeared. Thus, according to the Board of Appeal, the contested mark had a ‘somewhat below average’ distinctive character.
46      It must be stated that the applicant does not call into question the abovementioned description of the contested mark, from which it is apparent that that mark is characterised, in essence, by the specific shapes and proportions of the two chevrons and the spacing between them, by their orientation, and by the contrast between the colours black and white.
47      Since those findings are free from error, the Board of Appeal correctly found that the degree of distinctiveness of the contested mark was ‘somewhat below average’.
–       The lack of alteration of the distinctive character of the contested mark
48      It is apparent from paragraphs 32, 52, 57 and 60 of the contested decision that the elements conferring distinctive character on the contested mark are the outline of the two chevrons, their equal thickness and width, the equal distance between them and the contrast between their colour and that of the background on which they appear. Furthermore, the Board of Appeal found that, first, in the evidence showing chevrons pointing to the left and, secondly, in the evidence showing white chevrons against a black background or black chevrons against a bright background, the distinctive characteristics of the contested mark were not altered (see paragraphs 32, 55, 57 and 60 of the contested decision).
49      The applicant criticises the Board of Appeal for having taken into consideration that evidence containing either chevrons pointing to the left, white chevrons against a black background or black chevrons against a bright background.
50      EUIPO and the intervener dispute the applicant’s arguments.
(1)    Evidence showing chevrons pointing to the left
51      In the present case, the Board of Appeal found that the fact that, in the evidence submitted to it, the chevrons pointed to the left instead of to the right was irrelevant. According to the Board of Appeal, the direction of the wearer of the shoes determined whether the chevrons were pointing to the right or to the left. In addition, since every pair of shoes comes with a left shoe and a right shoe, the chevrons point to the right on the right shoe.
52      It is apparent from the evidence produced by the intervener before the adjudicating bodies of EUIPO, some of which are reproduced in the contested decision, that it is the intervener’s practice to affix two chevrons to different parts of the shoes it markets. In particular, many models contain two black chevrons against a white background or two white chevrons against a black background, affixed either to the outer side of each shoe or to the inner and outer sides of each shoe. Furthermore, the EUIPO file contains several photos showing sports shoes with two chevrons pointing to the right or to the left. Some of those photos were reproduced in paragraphs 5, 32, 35, 52 and 58 of the contested decision.
53      It must be stated that, in the abovementioned photos, the chevrons always point towards the toe of the shoe on which they are affixed.
54      Therefore, the Board of Appeal correctly found that, on those models of shoes, the direction of the person wearing them will necessarily determine the orientation of the chevrons.
55      Contrary to what the applicant claims, that finding is not a mere assumption, but the consequence of the fact that the chevrons affixed to the side of a shoe point either to the left or to the right depending on the orientation of the wearer, or even of the shoe itself, which, moreover, is confirmed by the photos reproduced in the contested decision.
56      It follows that the Board of Appeal did not make an error of assessment in taking into consideration the evidence establishing the sale of shoes bearing two chevrons pointing to the left.
57      Accordingly, the first complaint of the first part of the second plea in law must be rejected.
(2)    Evidence showing white chevrons against a black background or black chevrons against a bright background
58      In the present case, the Board of Appeal found that the combination in black and white was not, in itself, a distinctive element of the contested mark. Thus, the Board of Appeal found, in essence, that, in the evidence showing white chevrons against a black background or black chevrons against a bright background, the distinctive characteristics of the contested mark were not altered. It concluded that the use of the contested mark in those forms did not alter its distinctive character.
59      The applicant argues that, in the evidence submitted to the Board of Appeal, the representations of the contested mark containing colours other than those of the registered form should not have been taken into account. In the present case, the change of the colours of the mark is sufficient to alter its distinctive character.
60      First, it is clear from the case-law that the combination of the colours black and white is banal, with the result that it cannot, on its own, confer on the mark a characteristic likely to be perceived, by the relevant public, as an indication of the origin of the goods concerned (see, to that effect, judgments of 24 November 2005, GfK v OHIM – BUS (Online Bus), T‑135/04, EU:T:2005:419, paragraph 35, and of 5 October 2022, Philip Morris Products v EUIPO (Representation of black and white lines), T‑502/21, not published, EU:T:2022:611, paragraph 22).
61      Therefore, it must be held that the Board of Appeal did not make an error of assessment in not including the colour combination of the contested mark among its distinctive elements.
62      Secondly, it must be observed, as the Board of Appeal did, that where evidence shows white chevrons against a black background, the main and distinctive characteristics of the chevrons represented in the contested mark, namely their outline, the distance separating them, their thickness, their width and the contrast between the colours black and white, are maintained (see paragraphs 54 and 57 of the contested decision).
63      Furthermore, as regards the evidence showing black chevrons against a brightly coloured background, the Board of Appeal did not make an error of assessment in finding, in paragraph 60 of the contested decision, that the elements making up the contested mark remained visible in the same arrangement and proportions and that the contrast between black chevrons against a lighter background was also maintained.
64      Thus, it follows from the foregoing considerations that the Board of Appeal did not make an error of assessment in taking into account the evidence concerning the use of two white chevrons against a black background or of two black chevrons against a brightly coloured background, since those uses do not alter the distinctive character of the contested mark.
65      The judgment of 19 June 2019, adidas v EUIPO – Shoe Branding Europe (Representation of three parallel stripes) (T‑307/17, EU:T:2019:427), relied on by the applicant, does not call that finding into question. In that judgment, the Court held that the Board of Appeal had been correct to reject the evidence showing the sign concerned in a reversed colour scheme since that variation was not insignificant in relation to the registered form of that sign, which had very few characteristics, was extremely simple and lacked inherent distinctive character (judgment of 19 June 2019, Representation of three parallel stripes, T‑307/17, EU:T:2019:427, paragraphs 10, 71, 76 and 77).
66      On the contrary, the contested mark is not extremely simple and has a degree of inherent distinctiveness that is ‘somewhat below average’ (see paragraphs 46 and 47 above). Therefore, a variation in the colour scheme of the contested mark does not have the same impact as in the case that gave rise to the judgment of 19 June 2019, Representation of three parallel stripes (T‑307/17, EU:T:2019:427).
67      Accordingly, the second complaint of the first part of the second plea in law is unfounded and must be rejected.
The second part of the second plea, alleging lack of use of the contested mark as a trade mark
68      In the second part of the second plea, the applicant points out that the use of the contested mark as registered is purely decorative, and that it does not therefore constitute use as a mark as a basis for establishing the genuine use thereof. In its view, certain decisions of the Boards of Appeal of EUIPO and the case-law of the Court preclude simple graphic elements such as the two black chevrons against a white background, which constitute the contested mark, from being used as a trade mark on the goods at issue.
69      EUIPO and the intervener dispute the applicant’s arguments.
70      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 and services for which it is registered, in order to create or preserve an outlet for those goods and services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 39 and the case-law cited; see also, to that effect, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 36).
71      It must be held that the evidence produced by the intervener before EUIPO confirms that the contested mark was used in the intervener’s product catalogues, in its registered form or in forms that do not alter its distinctive character.
72      As the Board of Appeal correctly found in paragraph 85 of the contested decision, although there is no proof of distribution of those catalogues, the evidence must be seen as a whole.
73      Assessed in conjunction with the invoices produced by the intervener, those catalogues establish that the use of the contested mark was outward with the aim of acquiring a commercial position on the relevant market for the goods at issue (see paragraphs 84 and 89 of the contested decision).
74      As explained in paragraphs 34, 62, 83 and 86 of the contested decision, the catalogues produced by the intervener show articles of clothing bearing the contested mark and to which correspond a unique model code and colour code that are also found in the invoices issued to customers of the intervener established in various Member States. Furthermore, since those codes are found in the invoices sent by the intervener to its customers, it is possible to identify the clothing models sold under the contested mark, as well as the corresponding volumes.
75      Consequently, the Board of Appeal was entitled to conclude that the contested mark had been used in accordance with its essential function as an indicator of origin, and therefore as a trade mark.
76      Those findings cannot be called into question by the applicant’s arguments based on certain previous decisions of the Boards of Appeal of EUIPO and of the Court.
77      First, the applicant submits that the use of the contested mark cannot be equated with use as a trade mark, because it is very similar to the use of certain marks whose registration was rejected by decision of the Fifth Board of Appeal of 15 February 2019 (Case R 2604/2017‑5) and by decision of the Second Board of Appeal of 8 June 2016 (Case R 1828/2015‑2).
78      As regards, first of all, the position mark in respect of which registration was refused by decision of the Fifth Board of Appeal of 15 February 2019 (Case R 2604/2017‑5), it is apparent from Article 3(3)(d) of Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 laying down detailed rules for implementing certain provisions of Regulation 2017/1001, and repealing Implementing Regulation (EU) 2017/1431 (OJ 2018 L 104, p. 37), that a position mark is characterised by the specific way in which it is placed or affixed on the goods and that it is to be represented by submitting a reproduction which appropriately identifies the position of the mark and its size or proportion with respect to the relevant goods.
79      In the present case, the contested mark was registered as a figurative mark and not as a position mark, which the applicant, moreover, acknowledged at the hearing.
80      Furthermore, the representation of the contested mark does not include the goods on which it is supposed to be affixed or, a fortiori, a precise identification of the position of the contested mark and its size or proportion in relation to the goods concerned. Thus, the contested mark does not have the characteristics of a position mark.
81      Consequently, the assessments made in the decision of the Fifth Board of Appeal of 15 February 2019 (Case R 2604/2017‑5) cannot be applied to the present case.
82      Therefore, the applicant’s argument based, in essence, on an analogy between the contested mark and the position mark at issue in that decision must be rejected.
83      As regards, next, the figurative mark in respect of which registration was refused by decision of the Second Board of Appeal of 8 June 2016 (Case R 1828/2015‑2), it should be borne in mind that, in the contested decision, the Board of Appeal noted that the Cancellation Division had found that the chevrons of the contested mark presented stronger contrasts than those at issue in that other case, with the result that the facts and legal issues were different from those of the present case. Thus, the applicant cannot reasonably rely on that decision in the present case, which, moreover, is not capable of calling into question the Board of Appeal’s finding concerning the use of the contested mark as a trade mark.
84      Secondly, the applicant relies on the judgment of 4 May 2022, Deichmann v EUIPO – Munich (Representation of two crossed stripes on the side of a shoe) (T‑117/21, not published, EU:T:2022:271), which confirmed that simple graphic elements on shoes are not perceived as trade marks and the approach of which is, in essence, applicable to the present case.
85      In paragraph 61 of the judgment of 4 May 2022,
Representation of two crossed stripes on the side of a shoe (T‑117/21, not published, EU:T:2022:271), the Court held that to accept that every geometric shape, even the most simple, has distinctive character because it features on the side of a sports shoe would make it possible for some manufacturers to appropriate simple, and above all decorative, shapes, which must remain accessible to everyone.
86      However, the contested mark is not a basic geometric figure and was not classified as a simple and banal shape by the Board of Appeal.
87      Therefore, contrary to what the applicant claims, the approach adopted by the judgment of 4 May 2022, Representation of two crossed stripes on the side of a shoe (T‑117/21, not published, EU:T:2022:271), cannot be applied to the present case.
88      In the light of all of the foregoing, the applicant has failed to establish that there was any error vitiating the Board of Appeal’s assessment that the contested mark was used as a trade mark in respect of the goods at issue.
89      Since the second part of the second plea is unfounded, it must be rejected and, accordingly, the second plea in law must be rejected.
90      Since none of the pleas in law has been upheld, the action must be dismissed in its entirety.
Costs
91      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.
92      Since the applicant has been unsuccessful and having regard to the hearing on 9 January 2025, it must be ordered to bear its own costs and to pay those incurred by EUIPO, in accordance with the form of order sought by EUIPO.
93      Since the intervener has not applied for the applicant to be ordered to pay the costs relating to the proceedings before the Court, it must be ordered to bear its own costs.
94      Lastly, as regards the intervener’s request that the applicant be ordered to pay the costs incurred before the Board of Appeal, suffice it to note that the present judgment dismisses the action brought against the contested decision and that, therefore, it is the operative part of that decision that continues to determine the costs in question (see, to that effect, judgment of 28 April 2021, Comercializadora Eloro v EUIPO – Zumex Group (JUMEX), T‑310/20, not published, EU:T:2021:227, paragraph 45).
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Barry’s Bootcamp Holdings LLC to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);
3.      Orders Hummel Holding A/S to bear its own costs.
Marcoulli
Schwarcz
Spangsberg Grønfeldt
Delivered in open court in Luxembourg on 24 September 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.