JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
14 February 2019 (*)
(EU trade mark — Invalidity proceedings — EU word mark MOULDPRO — Absolute ground for invalidity — Bad faith — Article 59(1)(b) of Regulation (EU) 2017/1001 — Relative grounds for invalidity — Article 60(1)(b) and Article 8(3) of Regulation 2017/1001 — Article 60(1)(c) and Article 8(4) of Regulation 2017/1001)
In Case T‑796/17,
Mouldpro ApS, established in Ballerup (Denmark), represented by: W Rebernik, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by P. Sipos and D. Walicka, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Wenz Kunststoff GmbH & Co. KG, established in Lüdenscheid (Germany), represented by J. Bühling and D. Graetsch, lawyers,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 16 October 2017 (Case R 2153/2015‑4) relating to invalidity proceedings between Mouldpro and Wenz Kunststoff,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka and A. Dittrich (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 6 December 2017,
having regard to the response of EUIPO lodged at the Court Registry on 6 March 2018,
having regard to the response of the intervener lodged at the Court Registry on 22 March 2018,
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 6 June 2011, the intervener, Wenz Kunststoff GmbH & Co. KG, 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        On 7 November 2011, the intervener obtained, from EUIPO, registration, under number 10022317, of the EU word mark MOULDPRO.
3        The goods in respect of which registration was sought are in Class 17 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond to the following description: ‘Hose couplings of plastic (included in Class 17), hoses, rapid-release couplings for hoses, hose connection couplings’.
4        On 23 June 2014, the applicant, Mouldpro ApS, filed an application seeking a declaration that the contested mark was invalid in respect of the goods referred to in paragraph 3 above on the basis, first, of Article 53(1)(b) and (c) of Regulation No 207/2009 (now Article 60(1)(b) and (c) of Regulation 2017/1001), read in conjunction with Article 8(3) and (4) of Regulation No 207/2009 (now Article 8(3) and (4) of Regulation 2017/1001) and, second, of Article 52(1)(b) of Regulation No 207/2009 (now Article 59(1)(b) of Regulation 2017/1001).
5        On 1 October 2015, the Cancellation Division rejected in its entirety the application for a declaration of invalidity.
6        On 27 October 2015, the applicant filed an appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Cancellation Division.
7        By decision of 16 October 2017 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal.
8        In the first place, as regards the ground for invalidity referred to in Article 60(1)(c) of Regulation 2017/1001, read in conjunction with Article 8(4) of that regulation, the Board of Appeal found, first, that the action was inadmissible in so far as the applicant had invoked for the first time at the appeal stage an additional earlier right as the basis for its application for a declaration of invalidity, namely an earlier Danish company name, in addition to an earlier unregistered Danish trade mark. Second, as regards the earlier unregistered Danish trade mark, the Board of Appeal rejected part of the evidence provided by the applicant as inadmissible and found that the admissible evidence did not show that the applicant had used the sign MOULDPRO in the course of trade either before the date of filing of the application for registration of the contested mark or at the date of the application for a declaration of invalidity.
9        In the second place, the Board of Appeal rejected the application of the ground for invalidity referred to in Article 59(1)(b) of Regulation 2017/1001 on the basis that the applicant had not shown that the intervener had acted in bad faith when filing the application for registration of the contested mark. In that regard, the Board of Appeal found, in essence, that the evidence provided by the applicant was not capable of demonstrating that the intervener knew or must have known that the applicant was using the sign MOULDPRO for goods similar to those covered by the contested mark or that there was malicious intention on the part of the intervener.
10      In the third place, the Board of Appeal found, as regards the ground for invalidity referred to in Article 60(1)(b) of Regulation 2017/1001, read in conjunction with Article 8(3) thereof, that the applicant did not appear to contest the Cancellation Division’s finding that no ‘agent-principal’ relationship had been established but that, in any event, no contractual relationship existed between the two parties either at the date of filing of the application for registration of the contested mark or before that date and that the applicant could not invoke the cooperation between the intervener and the third-party company H., which, moreover, had ended in 2006.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs, including those incurred in the proceedings before the Board of Appeal.
12      EUIPO contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs incurred by EUIPO.
13      The intervener contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs, including those incurred by the intervener.
Law
14      In support of its action, the applicant relies on three pleas in law alleging, first, infringement of Article 60(1)(b) of Regulation 2017/1001, read in conjunction with Article 8(3) thereof, second, infringement of Article 60(1)(c) of Regulation 2017/1001, read in conjunction with Article 8(4) thereof, and, third, infringement of Article 59(1)(b) of Regulation 2017/1001.
The first plea in law, alleging infringement of Article 60(1)(b) of Regulation 2017/1001, read in conjunction with Article 8(3) thereof
15      In the context of its first plea in law, the applicant claims that the Board of Appeal erred in finding that it had not demonstrated the existence of an agent-principal or representation relationship between the intervener and itself within the meaning of Article 8(3) of Regulation 2017/1001.
16      In paragraphs 59 and 60 of the contested decision, the Board of Appeal noted that the applicant appeared to accept the finding of the Cancellation Division that no ‘agent-principal’ relationship between the two parties had been established. The Board of Appeal also added that, in any event, first, no contractual relationship existed between the applicant and the intervener either at the date of filing of the application for registration of the contested mark, namely 6 June 2011, or before that date. Second, it denied that any relevance attached to the cooperation between the intervener and the Danish company H. because, in its opinion, Article 8(3) of Regulation 2017/1001 cannot be invoked by a third-party company and it could not be concluded that the intervener would still have to meet post-contractual obligations in 2011, since that contractual relationship had ended in 2006.
17      The applicant disputes that assessment and claims, first, that the terms ‘agent’ and ‘representative’ must be interpreted broadly, that no formal written contract is required and that the material question is whether it is the cooperation with the proprietor of the mark that provided the trade mark applicant with the opportunity to become acquainted with and appreciate the value of that mark and persuaded it to register the mark in its own name. Second, the applicant maintains that the Board of Appeal did not take into account the continuous relationship between the intervener’s director and the applicant’s director, namely Mr W. and Mr H. S., respectively. From 2001 to 2006, the intervener purchased a substantial amount of goods from H., the applicant’s parent company of which Mr H. S. is also a director, in order to sell them on the German market. From 2007 to 2009, the intervener acted as a distributor in Germany for the Danish company T., the director of which was also Mr H. S., while, in 2010, the applicant was established and, in 2011, Mr H. S. asked Mr W. to discuss a new collaboration, following which the intervener filed the application for registration of the contested mark in June 2011. According to the applicant, it is only because of that continuous relationship and the continuous exchange of information between the parties — information that is not normally exchanged with a third party — that the intervener obtained information on the MOULDPRO mark and applied for registration of the contested mark with the sole objective of keeping the applicant out of the German market. Third, the applicant claims that it is impossible that the intervener could have randomly filed the application for registration of the contested mark, without being aware of the applicant’s MOULDPRO sign, given that, if a search of the mark MOULDPRO were to be carried out using the database TMView, only two trade mark proprietors would be listed, namely the applicant and the intervener.
18      EUIPO and the intervener dispute that line of argument.
19      The intervener also disputes the admissibility of the first plea in law by claiming that, in the context of the proceedings before the Board of Appeal, the applicant did not challenge the assessment of the Cancellation Division that the evidence which it had adduced was not sufficient to show the existence of an agent‑principal or representation relationship between itself and the intervener for the purpose of Article 8(3) of Regulation 2017/1001.
20      In accordance with Article 60(1)(b) of Regulation 2017/1001, an EU trade mark is to be declared invalid on application to EUIPO where there exists a mark as referred to in Article 8(3) of that regulation and the conditions set out in that latter paragraph are satisfied. Next, it should be noted that, under Article 8(3) of Regulation 2017/1001, a trade mark cannot be registered where the agent or representative of the proprietor of the trade mark applies for registration thereof in his own name without the proprietor’s consent, unless the agent or representative justifies his action.
21      It is apparent from the wording of Article 60(1)(b) of Regulation 2017/1001 that, for an opposition to succeed on that basis, it is necessary, first, for the opposing party to be the proprietor of the earlier mark; second, for the applicant for the mark to be or to have been the agent or representative of the proprietor of the mark; third, for the application to have been filed in the name of the agent or representative without the proprietor’s consent and without there being legitimate reasons to justify the agent’s or representative’s action; and, fourth, for the application to relate in essence to identical or similar signs and goods. Those conditions are cumulative (judgment of 13 April 2011, Safariland v OHIM — DEF-TEC Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), T‑262/09, EU:T:2011:171, paragraph 61).
22      As regards the terms ‘agent’ and ‘representative’ as used in Article 8(3) of Regulation 2017/1001, the Court has ruled that those terms must be interpreted broadly, so as to cover all kinds of relationships based on a contractual arrangement under which one party is representing the interests of the other, regardless of how the contractual relationship between the proprietor or principal, on the one hand, and the applicant for the EU trade mark, on the other, is categorised (judgments of 13 April 2011, FIRST DEFENSE AEROSOL PEPPER PROJECTOR, T‑262/09, EU:T:2011:171, paragraph 64, and of 9 July 2014, Moonich Produktkonzepte & Realisierung v OHIM — Thermofilm Australia (HEATSTRIP), T‑184/12, not published, EU:T:2014:621, paragraph 58).
23      It is sufficient for the purposes of Article 8(3) of Regulation 2017/1001 that there be some agreement of commercial cooperation between the parties of a kind that gives rise to a fiduciary relationship by imposing on the trade mark applicant — whether expressly or implicitly — a general duty of trust and loyalty as regards the interests of the trade mark proprietor (judgments of 13 April 2011, FIRST DEFENSE AEROSOL PEPPER PROJECTOR, T‑262/09, EU:T:2011:171, paragraph 64, and of 9 July 2014, HEATSTRIP, T‑184/12, not published, EU:T:2014:621, paragraph 59). Nevertheless, some kind of agreement must exist between the parties. If the applicant acts completely independently, without having entered into any kind of relationship with the proprietor, he cannot be treated as an agent for the purposes of Article 8(3) of Regulation 2017/1001. Thus, a mere purchaser or client of the proprietor cannot be regarded as an ‘agent’ or as a ‘representative’ for the purposes of that provision, since such persons are under no special obligation of trust to the trade mark proprietor (judgment of 13 April 2011, FIRST DEFENSE AEROSOL PEPPER PROJECTOR, T‑262/09, EU:T:2011:171, paragraph 64).
24      It should, moreover, be noted that Article 8(3) of Regulation 2017/1001 is designed to prevent the misuse of a mark by the trade mark proprietor’s agent, as the agent may exploit the knowledge and experience acquired during its business relationship with the proprietor and therefore improperly benefit from the effort and investment which the trade mark proprietor himself made (judgments of 6 September 2006, DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR), T‑6/05, EU:T:2006:241, paragraph 38, and of 29 November 2012, Adamowski v OHIM — Fagumit (FAGUMIT), T‑537/10 and T‑538/10, EU:T:2012:634, paragraph 22).
25      It is in the light of, inter alia, the aforementioned considerations that the Court must examine the first plea in law raised by the applicant, alleging infringement of Article 60(1)(b) of Regulation 2017/1001, read in conjunction with Article 8(3) thereof.
26      As regards the admissibility of the plea, disputed by the intervener, it must be noted that, admittedly, the applicant did not raise before the Board of Appeal any infringement, by the Cancellation Division, of Article 60(1)(b) of Regulation 2017/1001, read in conjunction with Article 8(3) thereof.
27      Nevertheless, it follows from the principle of continuity of functions between the departments of EUIPO that the extent of the examination which the Board of Appeal must conduct in respect of the decision under appeal is not, in principle, determined by the grounds relied on by the party who has brought the appeal. Accordingly, even if the party who has brought the appeal has not raised a specific ground of appeal, the Board of Appeal is nonetheless required to examine whether or not, in the light of all the relevant matters of fact and of law, a new decision with the same operative part as the decision under appeal may be lawfully adopted at the time of the appeal ruling (judgments of 23 September 2003, Henkel v OHIM — LHS (UK) (KLEENCARE), T‑308/01, EU:T:2003:241, paragraphs 25, 26 and 29, and of 30 September 2014, Scooters India v OHIM — Brandconcern (LAMBRETTA), T‑132/12, not published, EU:T:2014:843, paragraph 24).
28      Since it is common ground that the applicant invoked the ground for invalidity referred to in Article 60(1)(b) of Regulation 2017/1001, read in conjunction with Article 8(3) thereof, in its application for a declaration of invalidity and that it made submissions in that regard before the Cancellation Division, the unavoidable conclusion is that the present plea appeared in the documents before the Board of Appeal. Consequently, the intervener cannot claim that the present plea is inadmissible on the sole ground that it was not repeated before the Board of Appeal. The Board of Appeal acted correctly in carrying out, in the contested decision, the analysis of the conditions of the ground for invalidity referred to in paragraph 21 above.
29      Accordingly, it is necessary to examine the substance of the first plea in law and therefore the question as to whether the Board of Appeal was right to find that the evidence provided by the applicant was insufficient to show that the second condition laid down in Article 8(3) of Regulation 2017/1001, relating to the existence of a representation relationship, was satisfied in the present case.
30      In that regard, it should be pointed out that the burden of proof regarding the existence of a representation relationship lies in this case with the applicant (see, to that effect, judgment of 13 April 2011, FIRST DEFENSE AEROSOL PEPPER PROJECTOR, T‑262/09, EU:T:2011:171, paragraph 67).
31      Next, the set of arguments raised by the applicant, based on the commercial relations between the intervener and Danish companies H. (from 2001 to 2006) and T. (from 2007 to 2009), must, in the first place, be rejected, as EUIPO and the intervener contend.
32      First, it is apparent from the wording of Article 8(3) of Regulation 2017/1001 that its provisions apply only if the applicant for the EU trade mark at issue is or has been the agent or representative of the proprietor of the mark at issue. Since the applicant claims to be the proprietor of the mark MOULDPRO for the purpose of that provision, the existence of commercial relations between the intervener and third party companies is not capable of showing that the intervener has been the agent or representative of the applicant. The fact that H. is the applicant’s parent company and that Mr H. S. is or has been the director of that company, of the company T. and of the applicant does not call into question the fact that they are separate legal entities and that any obligation on the intervener in respect of H. or T. does not automatically entail an obligation in respect of the applicant which, furthermore, was only established in 2010, that is to say, after the period during which the intervener had contractual relations with the companies H. and T.
33      Second, the applicant has not demonstrated that the intervener had acted as an ‘agent’ or ‘representative’ of the companies H. and T. Although it is true that the terms ‘agent’ and ‘representative’ referred to in Article 8(3) of Regulation 2017/1001 must be interpreted broadly, it is apparent from the case-law cited in paragraphs 22 and 23 above that there must be an agreement of commercial cooperation between the parties of a kind that gives rise to a fiduciary relationship by imposing on the trade mark applicant — whether expressly or implicitly — a general duty of trust and loyalty as regards the interests of the trade mark proprietor. With regard to the commercial relations between the intervener and the company T., the applicant has adduced only one item of evidence contained in Annex E.44 to the originating application which, first, was declared inadmissible by the Board of Appeal in paragraph 27 of the contested decision and, second, consists of a mere unilateral statement — unsupported by other evidence — by the former director of that company, who is also the applicant’s director. With regard to the relations between the intervener and the company H., the applicant has, it is true, adduced before EUIPO, in Annexes D.10 to D.13, invoices and a list of sales which proved that the intervener had regularly purchased goods from H. However, there is no evidence to indicate that the relationship between the intervener and H. exceeded a mere purchaser-seller relationship which came into being without prior agreement or that there was an agreement of commercial cooperation establishing a fiduciary relationship between the parties and accordingly a duty of loyalty.
34      Third, the applicant has not shown that the commercial relations referred to in paragraph 33 above related to goods marketed under the mark MOULDPRO, which appears, moreover, highly unlikely since, even in the opinion of the applicant, that mark has not been used in the trade prior to 2009.
35      Fourth, it must be noted that the commercial relationship between H. and the intervener ended in 2006 and that the relationship between T. and the intervener ended in 2009, that is to say, well before the filing of the application for registration of the contested mark on 6 June 2011. Although it is true that Article 8(3) of Regulation 2017/1001 can apply to agreements which have expired before the date of filing of the EU trade mark application, this is subject to the condition that sufficient time has elapsed for there to be good reason to assume that the duty of trust and confidentiality still existed at the time when the trade mark application in question was filed (see, to that effect, judgment of 13 April 2011, FIRST DEFENSE AEROSOL PEPPER PROJECTOR, T‑262/09, EU:T:2011:171, paragraph 65). In view of the time which elapsed in the present case and of the absence of any concrete evidence provided by the applicant in that regard, it cannot be concluded that the intervener still had post-contractual obligations to meet in respect of H. or T. at the date of filing of the application for registration of the contested mark.
36      In the second place, as regards the exchange of emails between the applicant’s director and the intervener’s director in May and June 2011, included in Annexes C.2, C.3 and E.47 to E.50 to the originating application, and their meeting in Germany on 31 May 2011, suffice it to recall, as EUIPO and the intervener point out, first, that it is common ground between the parties that no commercial cooperation agreement had been entered into and, second, having regard to the case-law cited in paragraphs 22 and 23 above, the mere existence of negotiations concerning commercial cooperation is not capable of resulting in the application of Article 8(3) of Regulation 2017/1001.
37      In the third place, it must be noted that, contrary to what the applicant contends, the alleged continuous relationship between its director and the intervener’s director is not capable of resulting in the application of Article 8(3) of Regulation 2017/1001 in the present case. Having regard to the case-law cited in paragraphs 22 to 24 above and to the observations set out in paragraphs 31 to 36 above, it must be held that an ‘agent-principal’ relationship between the intervener and the applicant cannot be based on the fact that the applicant’s director and the intervener’s director were acquainted with each other in the context of a professional relationship which, itself, cannot be characterised as an ‘agent-principal’ relationship and which, moreover, involves different companies, marks and times.
38      In the light of the foregoing, it must be held that the applicant errs in its submission that the Board of Appeal infringed Article 8(3) of Regulation 2017/1001.
39      It follows that the first plea in law must be rejected as unfounded.
The second plea in law, alleging infringement of Article 60(1)(c) of Regulation 2017/1001, read in conjunction with Article 8(4) thereof
40      The applicant’s second plea in law comprises two parts. The first part concerns the Board of Appeal’s decision to dismiss the appeal against the Cancellation Division’s decision as inadmissible in that the applicant, for the purpose of the application of Article 8(4) of Regulation 2017/1001, relied on its company name Mouldpro ApS. The second part of the second plea in law concerns the dismissal of the appeal as unfounded in that the applicant invoked the use of the earlier unregistered Danish mark MOULDPRO in support of its application for a declaration of invalidity.
The first part of the second plea in law
41      In paragraphs 18 and 19 of the contested decision, the Board of Appeal justified its partial dismissal of the applicant’s appeal as inadmissible on the ground that, first, the earlier rights on which an application for invalidity are based cannot be extended once the application has been filed and, second, the applicant had invoked for the first time at the appeal stage an earlier Danish company name as a basis for its application for a declaration of invalidity, in addition to an earlier unregistered Danish trade mark.
42      The applicant takes issue with that assessment and claims, first, that the invocation of the company’s name is not a new argument and that it is the earlier right that the applicant has always invoked and which was established when it was set up in February 2010. Second, the applicant maintains that the invocation of the company name was documented in the context of the initial application for a declaration of invalidity and in the documents set out in Annexes C.1 and D.7 to the originating application.
43      EUIPO and the intervener dispute the applicant’s line of argument.
44      It must be noted that, pursuant to Article 163(1)(a) of Regulation 2017/1001, the Cancellation Division is responsible for taking decisions in relation to applications for the revocation and declaration of invalidity of an EU trade mark and, pursuant to Article 165(1) of that regulation, the Boards of Appeal are responsible for deciding on appeals brought against, inter alia, decisions of the Cancellation Divisions. It follows that it is for the Cancellation Division to decide, at first instance, on applications for a declaration of invalidity, as defined by the different applications and various procedural acts of the parties (judgment of 13 January 2011, Park v OHIM — Bae (PINE TREE), T‑28/09, not published, EU:T:2011:7, paragraph 46).
45      In that context, it is necessary to bear in mind Rule 37(b)(ii) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), as amended (now Article 12(1)(b) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1)). That rule applies in the present case, in accordance with Article 82(2)(f) of Delegated Regulation 2018/625, having regard to the fact that the applicant filed its application for a declaration of invalidity on 23 June 2014. That rule provides that an application for a declaration of invalidity based on the current Article 60(1)(c) of Regulation 2017/1001, read in conjunction with Article 8(4) thereof, contains particulars of the right on which the application for a declaration of invalidity is based and, if necessary, particulars showing that the applicant is entitled to adduce the earlier right as a ground for invalidity. Rule 39(3) of Regulation No 2868/95 (now Article 15(4) of Delegated Regulation 2018/625) provides that, if EUIPO finds that an application does not comply with Rule 37, it must invite the applicant to remedy the deficiencies noted and reject the application as inadmissible if those deficiencies are not remedied before the expiry of the period prescribed by EUIPO.
46      In the light of the foregoing observations, it must be held, in the first place, as EUIPO submits, that the applicant for a declaration of invalidity cannot invoke, for the first time before the Board of Appeal, the existence of a new ‘unregistered trade mark’ or a new ‘sign used in the course of trade’ as a basis of the ground for invalidity referred to in Article 8(4) of Regulation 2017/1001. To accept the contrary would imply the examination, by the Board of Appeal, of new legal and factual considerations that go beyond the framework of the invalidity proceedings filed with and processed by the Cancellation Division.
47      In the second place, it is necessary to examine whether the applicant invoked its company name for the first time before the Board of Appeal as an earlier right for the purpose of Article 8(4) of Regulation 2017/1001 or whether, as the applicant claims, it is the earlier right which it has always invoked.
48      First, it must be noted that pages 6 and 7 of the application for a declaration of invalidity, which concern Article 8(4) of Regulation 2017/1001, do not contain any express mention of the applicant’s company name as being an earlier right within the meaning of that provision. The same holds true for pages 8 and 9 of the applicant’s submissions before the Cancellation Division, which concern that same article. Contrary to the applicant’s submissions, the documents set out in Annexes C, C.1 and D.7 to the originating application also do not show that it invoked the fact that its company name amounted to an earlier right in the proceedings before the Cancellation Division. As EUIPO contends, it is apparent from the file that it is only in the context of the ‘agent-principal’ relationship for the purpose of Article 8(3) of Regulation 2017/1001 that the applicant mentioned its company name and adduced evidence of its existence in that context.
49      Conversely, as regards Article 8(4) of Regulation 2017/1001, in particular the existence of an earlier right within the meaning of that provision, the paragraph in the application for a declaration of invalidity dealing with that condition is entitled ‘the Opponent has proprietorship of a non-registered trade mark’ and Article 3(1) of the Varemærkelov (Danish Trade Mark Law) is cited in that paragraph as being the basis of its earlier right, providing for the acquisition through use of a mark for the goods or services for which it is used.
50      Second, it must be noted that, contrary to what the applicant appears to suggest, the reference to the sign MOULDPRO as an unregistered mark acquired through use cannot be interpreted as meaning that it invoked, at the same time, the company name Mouldpro ApS as a second earlier right within the meaning of Article 8(4) of Regulation 2017/1001.
51      In that regard, it must be noted that, as EUIPO submits, the two rights are not identical, are governed by different legal instruments and provisions and are subject to distinct conditions. It follows from pages 6 and 7 of the application for a declaration of invalidity and from Annex E.29 to the originating application that, according to Danish law, the basis of an unregistered trade mark acquired through use is Article 3(1) of the Danish Trade Mark Law, which presupposes the beginning and the continuation of the use of the sign concerned for specific goods or services. Furthermore, pursuant to Article 15(4)(ii) of that law, such a mark confers on its proprietor the right to prohibit the use of a subsequent mark. Conversely, as regards the company name, it is apparent from the submissions of the applicant itself, made for the first time before the Board of Appeal, that the applicant invokes, in that regard, Articles 18 and 20 of the Lov om markedsføring (Danish Marketing Practices Consolidation Law) as well as Article 14(4) of the Danish Trade Mark Law and that the protection of that company name is based on the applicant’s registration in the Danish Commercial Register.
52      It must, furthermore, be noted that it is apparent from the appeal before the Board of Appeal that the applicant itself considered that its company name could be invoked as an alternative to the unregistered mark and that it therefore amounted to a new earlier right for the purposes of Article 8(4) of Regulation 2017/1001.
53      First, the manner in which the pleas are raised in the appeal before the Board of Appeal suggests that this is so. The applicant analyses, first, in Part 1 of the statement of grounds of its appeal (pages 2 to 6), the application of Article 8(4) of Regulation 2017/1001, on the basis of the unregistered Danish mark MOULDPRO, second, in Part 2 of its statement of grounds (pages 6 to 9), the application of Article 59(1)(b) of Regulation 2017/1001, and, third, in Part 3 of its statement of grounds (pages 9 to 11), once more the application of Article 8(4) of Regulation 2017/1001, this time, however, on the basis of its company name.
54      Moreover, the applicant’s submissions in Part 3 of its statement of grounds support that conclusion. The applicant has inter alia indicated the following at page 9 of its appeal:
‘Should we choose to ignore the fact that [the applicant] has a prior right in the form of an unregistered trademark, ... [the intervener’s] registration of [the contested mark] is still a violation of [the applicant’s] rights, as the registration infringes [the applicant’s] rights to [its] company name.’
55      Furthermore, it must be recalled that it is in the context of those submissions that the applicant referred, for the first time, to Articles 18 and 20 of the Danish Marketing Practices Consolidation Law and to Article 14(4) of the Danish Trade Mark Law, which, in its opinion, constitute the legal basis for the protection of its company name.
56      In those circumstances, the Board of Appeal acted correctly in dismissing, as inadmissible, the appeal based on the applicant’s company name.
The second part of the second plea in law
57      In the context of the second part of its second plea in law, the applicant maintains that the Board of Appeal infringed Article 8(4) of Regulation 2017/1001 by dismissing the appeal also in so far as it was based on the earlier unregistered Danish mark MOULDPRO.
58      The applicant claims, first, that, in Denmark, the acquisition of an unregistered trade mark is very easy and possible from the moment when the trade mark is used for the first time and as long as the communication of the mark is directed at the public and is not merely internal. According to the applicant, it has sufficiently demonstrated the use of its company name, which corresponds to the unregistered trade mark, in the course of trade at the time of filing the application for registration of the contested mark in 2011 up to the date of filing of its application for a declaration of invalidity in 2014. Second, the applicant states that it was established by Mr H. S. on 5 February 2009 and it started marketing the mark MOULDPRO in both Denmark and Germany. The applicant maintains that the evidence included in Annexes C.1, D.7, D.14 to D.18, E.32 to E.43 to the originating application show its extensive use of the mark MOULDPRO as from 2009 and it refers, in this respect, to its pleadings lodged before EUIPO (Annexes C, D and E) in which it set out the content of its submissions.
59      EUIPO and the intervener dispute the applicant’s line of argument.
60      In accordance with Article 60(1)(c) of Regulation 2017/1001, an EU trade mark is to be declared invalid on application to EUIPO in the case where there is an earlier right as referred to in Article 8(4) of that regulation and the conditions set out in that latter paragraph are satisfied.
61      It must next be recalled that, pursuant to Article 8(4) of Regulation 2017/1001, the proprietor of a sign, other than a registered trade mark, may oppose the registration of an EU trade mark if that sign satisfies four cumulative conditions. The sign must be used in the course of trade; it must be of more than mere local significance; the right to that sign must have been acquired in accordance with the law of the Member State in which the sign was used prior to the date of application for registration of the EU trade mark and, finally, that sign must confer on its proprietor the right to prohibit the use of a subsequent trade mark (judgment of 29 June 2016, Universal Protein Supplements v EUIPO — H Young Holdings (animal), T‑727/14 and T‑728/14, not published, EU:T:2016:372, paragraph 22).
62      The first two conditions, namely those relating to the use of the sign relied on and its significance, which must be more than merely local, are apparent from the very wording of Article 8(4) of Regulation 2017/1001 and must therefore be interpreted solely in the light of EU law. Regulation 2017/1001 thus sets out uniform standards, relating to the use of signs and their significance, which are consistent with the principles underlying the system established by that regulation. By contrast, it is apparent from the phrase ‘where and to the extent that, pursuant to […] the law of the Member State governing that sign’, that the other two conditions, set out subsequently in Article 8(4)(a) and (b) of Regulation 2017/2011, constitute conditions laid down by the regulation which, unlike the conditions above, must be assessed in the light of the criteria set by the law governing the sign relied on (judgment of 29 June 2016, animal, T‑727/14 and T‑728/14, not published, EU:T:2016:372, paragraphs 23 and 24).
63      In the present case, the Board of Appeal took the view, in paragraphs 26 to 40 of the contested decision, that the evidence adduced by the applicant was insufficient to show that, before the date of filing of the application for registration of the contested mark and on the date of filing of the application for a declaration of invalidity, the first two conditions set out in Article 8(4) of Regulation 2017/1001, relating to the use of the sign MOULDPRO, were satisfied.
64      As EUIPO has pointed out, it must be noted, in the first place, that, in so far as the applicant refers, in paragraph 46 of the originating application, to ‘previously submitted documentation, which further shows [its] extensive use of the mark [Mouldpro], cf. Annex C.l, D.7 and D.14 to 18)’, in Annexes E.32 and E.43 to the originating application and ‘the ... statements of grounds (Annex C, D and E) where the applicant explains the content of [its] submissions’, such a general and non-specific reference is inadmissible.
65      According to settled-case law, whilst the text of the application can be supported by references to extracts in documents annexed to it, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, as those annexes have a purely evidential and instrumental function (see judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 12 and the case-law cited).
66      Such is the case here, especially since, first, the Board of Appeal found, in paragraph 27 of the contested decision, that part of the evidence to which the applicant had referred, namely Annexes E.32 to E.34, was inadmissible and, second, it carried out, in paragraphs 30 to 39 of the contested decision, an in-depth analysis of the evidence to which the applicant had referred in paragraph 46 of the application. Thus, the Board of Appeal took the view that the written statements of Mr H. S. and the applicant’s auditor (Annexes E.42 and E.43) did not constitute reliable and convincing evidence, that the majority of the evidence predating the date of filing of the application for registration of the contested mark referred to the use of the sign MOULDPRO by the company H., that the evidence showing a direct link with the applicant (Annexes C.1, D.23 and E.46) was not sufficient to prove the geographical and economic dimensions of the use of that sign, and that only the evidence predating the date of filing of the application for a declaration of invalidity showing use of the sign MOULDPRO (Annexes E.36 and E.37) referred to goods different to those covered by the contested mark and did not mention the applicant. Despite that detailed analysis, the applicant referred to that evidence without providing concrete arguments capable of calling into question the Board of Appeal’s assessment of the evidence.
67      In the second place, as regards the other submissions set out in paragraphs 38 to 52 of the originating application, it must be noted that the applicant maintains, in essence, that the acquisition of an unregistered trade mark requires only, according the Danish Trade Mark Law and the relevant case-law, a low level of use and, since it had demonstrated that that condition had been satisfied, it could therefore prohibit any unauthorised registration of the mark MOULDPRO.
68      In that regard, it is first necessary to recall the case-law cited in paragraphs 61 and 62 above, according to which Regulation 2017/1001 establishes uniform standards concerning the first two conditions relating to the use and significance of the unregistered sign.
69      Furthermore, it is apparent from the case-law that the common purpose of the first two conditions laid down in Article 8(4) of Regulation 2017/1001 is to limit conflicts between signs by preventing an earlier right which is not sufficiently definite — that is to say, important and significant in the course of trade — from blocking registration of a new EU trade mark and a right of opposition of that kind must be reserved to signs which actually have a real presence on their relevant market (judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar, C‑96/09 P, EU:C:2011:189, paragraph 157).
70      It must therefore be held that the first two conditions set out in Article 8(4) of Regulation 2017/1001, relating to the use and significance of the sign, differ from those which, according to the applicant’s submissions, are laid down in the Danish Trade Mark Law and require only a low level of use for the acquisition of an unregistered Danish mark. It follows that the applicant’s submissions made in the context of the second part of the second plea in law are not capable of calling into question the findings of the Board of Appeal concerning the first two conditions referred to in Article 8(4) of Regulation 2017/1001.
71      In the third place, it must be noted that, given that the four conditions laid down in Article 8(4) of Regulation 2017/1001 are cumulative, the Board of Appeal was not required to rule on whether, as the applicant claims, the evidence that it had provided was sufficient to demonstrate its acquisition of the unregistered Danish mark MOULDPRO. Therefore, even if the applicant were the proprietor of such an unregistered trade mark, the lack of sufficient evidence showing use in the course of trade and more than mere local significance of that sign permitted the refusal to apply Article 8(4) of Regulation 2017/1001.
72      Accordingly, the Board of Appeal did not infringe Article 8(4) of Regulation 2017/1001 by also dismissing the appeal in so far as the applicant had relied on the earlier unregistered Danish mark MOULDPRO.
73      In the light of the foregoing, the second part of the second plea in law must be rejected.
The third plea in law, alleging infringement of Article 59(1)(b) of Regulation 2017/1001
74      In the context of its third plea in law, the applicant maintains that the Board of Appeal failed correctly to assess the facts of the case or the evidence adduced and that it thus committed an error in law in finding that the application for registration of the contested mark had not been made in bad faith.
75      The applicant claims, in essence, first, that there could be no reasonable doubt that the intervener was well aware of the applicant’s mark at the time when it filed that application, having regard, first of all, to its long lasting and very close commercial relationship with the intervener and the fact that the applicant had been established under the name MOULDPRO ApS in June 2010 and had at the same time started to use that mark in the course of trade. In addition, the applicant relies, in this regard, on the fact that the parties operate in the same sector and on the multiple references to the mark MOULDPRO in the correspondence predating the filing of the application for registration of the contested mark. Second, the applicant claims that it is unrealistic to believe that the intervener applied by coincidence for registration of a trade mark identical to its own shortly after the applicant had started using it. Third, the applicant claims that the examination of the question whether or not the applicant for registration had made use of the mark since its registration can make it possible to interpret its intention at the time of filing the application for registration. In that context, the applicant also claims that the intervener never mentioned its application for registration of the contested mark during the negotiation stage, namely from 2011 to 2014, despite the obvious conflict of interest and despite the fact that the mark MOULDPRO appeared multiple times in their correspondence after 6 June 2011.
76      EUIPO and the intervener dispute the applicant’s line of argument.
77      It should be noted first of all that the EU trade mark registration system is based on the ‘first-to-file’ principle, laid down in Article 8(2) of Regulation 2017/1001. Under that principle, a sign may be registered as an EU trade mark only in so far as this is not precluded by an earlier mark, whether that be an EU trade mark, a trade mark registered in a Member State or by the Benelux Office for Intellectual Property, a trade mark registered under international arrangements which have effect in a Member State, or a trade mark registered under international arrangements which have effect within the European Union. On the other hand, without prejudice to the possible application of Article 8(4) of Regulation 2017/1001, the mere use by a third party of an unregistered mark does not preclude an identical or similar mark from being registered as an EU trade mark for identical or similar goods or services (judgment of 28 January 2016, Davó Lledó v OHIM — Administradora y Franquicias América and Inversiones Ged (DoggiS), T‑335/14, EU:T:2016:39, paragraph 43).
78      That rule is qualified, inter alia, by Article 59(1)(b) of Regulation 2017/1001, under which an EU trade mark is to be declared invalid on application to EUIPO or on the basis of a counterclaim in infringement proceedings, where the applicant was acting in bad faith when it filed the application for registration of the trade mark (judgment of 28 January 2016, DoggiS, T‑335/14, EU:T:2016:39, paragraph 44).
79      The concept of bad faith referred to in Article 59(1)(b) of Regulation 2017/1001 is not defined, delimited or even described in any way in EU legislation (judgment of 28 January 2016, DoggiS, T‑335/14, EU:T:2016:39, paragraph 45).
80      According to the case-law, the concept of bad faith relates to a subjective motivation on the part of the person applying for a trade mark, namely a dishonest intention or other sinister motive. It involves conduct which departs from accepted principles of ethical behaviour or honest commercial and business practices (judgment of 7 July 2016, Copernicus-Trademarks v EUIPO — Maquet (LUCEO), T‑82/14, EU:T:2016:396, paragraph 28).
81      In order to determine whether an applicant is acting in bad faith, all of the relevant factors specific to the particular case which obtained at the time of filing the application for registration of the sign as an EU trade mark must be taken into consideration (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 53).
82      The facts taken into account in the case-law in the context of the overall analysis undertaken pursuant to Article 59(1)(b) of Regulation 2017/1001 include the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product or service that is capable of being confused with the sign for which registration is sought, the applicant’s intention to prevent that third party from continuing to use such a sign, the degree of legal protection enjoyed by the signs at issue, the applicant’s intention to prevent a third party from marketing a product, the origin of the contested sign and its use since its creation, the commercial logic underlying the filing of the application for registration of that sign as an EU trade mark and the chronology of events leading to that filing (see, to that effect, judgments of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraphs 38 and 44, and of 28 January 2016, DoggiS, T‑335/14, EU:T:2016:39, paragraphs 46 and 48).
83      That said, it should be pointed out that the factors referred to in paragraph 82 above are only examples drawn from a number of factors which can be taken into account in order to determine whether an applicant for registration was acting in bad faith at the time of filing the trade mark application (see, to that effect, judgment of 28 January 2016, DoggiS, T‑335/14, EU:T:2016:39, paragraph 47).
84      Moreover, it must be noted that it is for the applicant for a declaration of invalidity, who intends to rely on the ground in Article 59(1)(b) of Regulation 2017/1001, to establish the circumstances which allow the conclusion that the proprietor of an EU trade mark was acting in bad faith when he filed the application for registration of that mark, and that there is a presumption of good faith until proof to the contrary is adduced (see judgment of 8 March 2017, Biernacka-Hoba v EUIPO — Formata Bogusław Hoba (Formata), T‑23/16, not published, EU:T:2017:149, paragraph 45).
85      It is, in particular, in the light of the foregoing considerations that the legality of the contested decision must be reviewed, in so far as the Board of Appeal concluded that there was no bad faith on the part of the intervener when it filed the application for registration of the contested mark.
86      The Board of Appeal took the view that the arguments and evidence submitted by the applicant were inadequate to rebut the presumption of good faith.
87      In order to reach that conclusion, the Board of Appeal found, in essence, that the evidence adduced by the applicant did not corroborate its claim that the applicant knew or must have known that it was using the sign MOULDPRO in Denmark and Germany for goods similar to those covered by the contested mark and, in any event, the applicant had not provided sufficient evidence to indicate that the intervener had acted with dishonest intention when it had sought registration of the contested mark.
88      In that context, it must be recalled, first of all, that according to the case-law cited in paragraph 82 above, the fact that an applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product or service capable of being confused with the sign for which registration is sought is one of the factors which may be taken into account for the purpose of ruling on the possible existence of bad faith on the part of an applicant for registration at the time of filing the trade mark application.
89      The applicant disputes the Board of Appeal’s assessment in that regard and refers to the emails exchanged between the parties in May and June 2011, the history of the collaboration between Mr H. S. and Mr W. and their meeting on 31 May 2011 in Germany. It claims that the signs are identical, that the parties are active in the same sector, that it was already registered in 2010 in the Danish Commercial Register under the company name MOULDPRO ApS, that it has used the mark MOULDPRO from that time and that it had a distribution agreement with Mr B.
90      First, as regards the applicant’s emails of 23 and 26 May 2011, it is admittedly true that, as the Board of Appeal noted, the applicant did not call into question the intervener’s assertion that the latter had not received those emails because they had been wrongly addressed. However, it is apparent from pages 2 and 3 of Annex E.50 to the originating application that the intervener replied on 20 June 2011 to the applicant’s email of 6 June 2011, which was sent to the same address as the emails of 23 and 26 May 2011. It is therefore highly likely that the intervener also received the emails of 23 and 26 May 2011. As regards their content, it must be noted that neither their subject (‘visit’) nor their wording allows the conclusion that the meeting of 31 May 2011 had a specific objective. Moreover, it must be noted that, as observed by EUIPO and the intervener, the Board of Appeal correctly found, in paragraph 49 of the contested decision, that the emails of 23 and 26 May 2011 contained no mention of the mark MOULDPRO or any information relating to its use with respect to the specific goods or services.
91      That said, the emails of 23 and 26 May 2011, in the same way as the email of 6 June 2011, are signed in the name of the applicant, namely Mouldpro ApS. The mention of the applicant’s company name does not however allow the conclusion that the intervener knew that the applicant actually used the sign MOULDPRO to market goods that were identical or similar to ‘hose couplings of plastic (included in Class 17), hoses, rapid-release couplings for hoses, hose connection couplings’ covered by the contested mark, even if it were to be understood as referring to the moulding sector.
92      Second, as regards the email sent by the applicant on 6 June 2011, that is to say, the date on which the application for registration of the contested mark was filed, it is true that, as the applicant claims, that email proposes future cooperation between the parties. Reference is made in that email to the termination of ‘an agreement with [Mr B.]’ and to the ‘representation of Mouldpro [by the intervener] in Germany’. It must also be noted that the subject of that email is stated as being: ‘Mouldshop/Wenz’ and that reference is made to the intervener’s takeover of the website www.mouldshop.de and the establishment of a joint company, Mouldshop Deutschland GmbH. As the Board of Appeal pointed out, that email does not mention the existence of a mark MOULDPRO or the goods that the applicant marketed at that time or intended to market in the context of that cooperation.
93      Moreover, as regards, in that context, the meeting of 31 May 2011 in Germany, it must be noted that it is common ground that that meeting did indeed take place. However, as the Board of Appeal stated, the applicant has provided no evidence as to the scope and purpose of that meeting. Even if it is assumed that, contrary to the intervener’s submission, the possibility of cooperation was discussed during that meeting, no conclusion, save what is mentioned in the email of 6 June 2011, can be drawn from it.
94      Third, with regard to the arguments that the applicant was registered in the Commercial Register in February 2010 and had started to use the mark MOULDPRO in the course of trade from that time, and that Mr B. had started acting as its distributor in Germany as from 1 June 2010, it must indeed be noted that, according to the case-law, a presumption of knowledge, on the part of the trade mark applicant, of the use by a third party of an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration is sought may arise, inter alia, from general knowledge in the economic sector concerned of such use, and that knowledge can be inferred, inter alia, from the duration of such use (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 39).
95      However, the evidence provided by the applicant does not justify in any way a finding that, at the date of filing of the application for registration of the contested mark, the use of the sign MOULDPRO for goods similar to those covered by the contested mark was a matter of knowledge in the moulding sector in the European Union. The maximum duration of the applicant’s use of the sign MOULDPRO between the date of its registration and the date of filing of the application for registration of the contested mark is 16 months. A prolonged use of the sign MOULDPRO in the sector concerned does not make up for that relatively short period. On the contrary, as the Board of Appeal found, no evidence provided by the applicant makes it possible to establish that Mr B. or the applicant actually marketed goods under the mark MOULDPRO that are identical or similar to the goods covered by the contested mark.
96      As regards, in particular, the distribution agreement invoked by the applicant, it must be noted that the latter submitted, for the first time before the Board of Appeal, Annex E.46, reproducing a contract between Mr B. and the applicant, concerning the use of the marks MOULDPRO and MOULDSHOP in Germany. In that regard, the Board of Appeal found that the applicant had not adduced any evidence of sales to or by Mr B. after the entry into force of that agreement on 1 June 2010, as only one invoice for EUR 1 153.21 predating that date was submitted. Furthermore, neither that invoice nor the distribution agreement contains information on the goods concerned and, therefore, there is no basis on which to assess whether these were goods similar to those covered by the contested mark applied for and in Class 17.
97      Fourth, no presumption of knowledge can be inferred either from the fact that, according to the applicant, there was a history of long and close collaboration between the parties. First of all, it must be pointed out that the applicant has not provided any evidence predating the exchanges of emails in May 2011 establishing a commercial relationship or a cooperation agreement between itself and the intervener. The applicant relies solely on the relationship between Mr H. S., its director, and Mr W., the intervener’s director, and claims that the intervener acted as a distributor for the two Danish companies H. (from 2001 to 2006) and T. (from 2007 to 2009), whereas Mr H. S. was director of those companies. As EUIPO points out, it must be noted that such a professional relationship does not necessarily imply that Mr W. knew of the activities of Mr H. S. in Denmark. Therefore, even on the assumption that the sign MOULDPRO was used by the applicant for goods similar to those covered by the contested mark, the mere fact that the directors of the parties in question knew each other and that there was a degree of collaboration which concerned, however, different companies, marks and goods is not sufficient to allow the conclusion that the intervener must have had knowledge of such use.
98      Finally, fifth, as regards the fact that the signs at issue are, admittedly, identical, it must be noted, as EUIPO points out, that the sign MOULDPRO is nevertheless a relatively simple combination which consists of a reference to the moulding sector and the suffix ‘pro’, a common abbreviation of the word ‘professional’. In any event, the identity of the signs at issue, taken in isolation, does not allow the conclusion that the intervener was aware of the use of the sign MOULDPRO for goods similar to those covered by the contested mark.
99      In the light of the foregoing considerations, it must be considered that the evidence provided by the applicant does not allow the conclusion that, at the time of the filing of the application for registration of the contested mark, the intervener knew or must have known that the applicant was using the sign MOULDPRO for the marketing of goods similar to those covered by the contested mark.
100    That said, it follows from the foregoing considerations that the intervener probably knew, two weeks before the date on which the contested mark was filed, of the existence of a Danish company whose company name was Mouldpro ApS. Having regard to the case-law cited in paragraphs 81 and 83 above, it cannot a priori be ruled out that the fact that the intervener knew of the existence of a company name identical or similar to the sign in respect of which registration was sought amounts to a relevant factor for the purpose of assessing whether the applicant acted in bad faith.
101    However, as the Board of Appeal noted in paragraph 57 of the contested decision, knowledge, even if it concerns the use of a similar sign for an identical or similar product capable of being confused with the sign for which registration is sought, is not sufficient, in itself, to permit the conclusion that the applicant was acting in bad faith (see, to that effect, judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 40). In the present case, the applicant has not provided sufficient evidence to support the view that the intervener had acted with dishonest intention when it sought registration of the contested mark.
102    Admittedly, the intention to prevent a third party from marketing a product may, in certain circumstances, be an element of bad faith on the part of an applicant. That is in particular the case when it becomes apparent, subsequently, that the applicant applied for registration of a sign as an EU trade mark without intending to use it, the sole objective being to prevent a third party from entering the market (see, to that effect, judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraphs 41, 43 and 44).
103    However, before the Board of Appeal, the applicant adduced no evidence permitting the conclusion that the intervener had sought registration of the contested mark for the purpose of keeping the applicant out of the German market.
104    The applicant submitted, before the Board of Appeal, evidence seeking to show that the intervener knew of its use of the sign MOULDPRO; however, none of the evidence submitted points to a dishonest intention on the intervener’s part. The argument that the intervener did not at any time during the discussions between the parties mention the filing of the application for registration of the contested mark was raised for the first time before the Court and therefore amounts to a new fact. According to the case-law, the review carried out by the Court under Article 72 of Regulation 2017/1001 is a review of the legality of the decisions of the Boards of Appeal and, consequently, may not go beyond the factual and legal context of the dispute as it was brought before the Board of Appeal (judgment of 9 July 2014, HEATSTRIP, T‑184/12, not published, EU:T:2014:621, paragraph 76). That argument must therefore be rejected as inadmissible.
105    Moreover, it must be noted that the fact that the intervener made at least some use of the contested mark, a fact which the applicant does not dispute, does not support the claim that the latter had the contested mark registered with no intention of using it, for the sole purpose of preventing the applicant from marketing its goods in Germany.
106    In the absence of other arguments capable of calling into question the Board of Appeal’s assessment that the evidence was not sufficient to prove bad faith on the intervener’s part, the third plea in law must be rejected and the action dismissed in its entirety.
Costs
107    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. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mouldpro ApS to pay the costs.
Gratsias
Labucka
Dittrich
Delivered in open court in Luxembourg on 14 February 2019.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.