JUDGMENT OF THE GENERAL COURT (Second Chamber)
16 November 2022 (*)
(EU trade mark – Revocation proceedings – EU figurative mark EPSILON TECHNOLOGIES – Genuine use of the mark – Article 18(1), second subparagraph, point (a), and Article 58(1)(a) of Regulation (EU) 2017/1001 – Nature of the use – Form differing in elements which do not alter the distinctive character – Use in connection with the services in respect of which the mark was registered)
In Case T‑512/21,
Epsilon Data Management LLC, established in Plano, Texas (United States), represented by J. Bussé and C. De Preter, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by I. Harrington, D. Gája and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Epsilon Technologies, SL, established in Madrid (Spain), represented by J. Carbonell Callicó and E. Felip Corrius, lawyers,
THE GENERAL COURT (Second Chamber),
composed, at the time of the deliberations, of V. Tomljenović, President, F. Schalin and D. Kukovec (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 11 July 2022,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Epsilon Data Management LLC, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 June 2021 (Joined Cases R 1611/2020-5 and R 1839/2020-5) (‘the contested decision’).
Background to the dispute
2        On 26 February 2010, the intervener, Epsilon Technologies SL, filed an application for registration of an EU trade mark with 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)).
3        Registration as a mark was sought for the following figurative sign:
4        The services in respect of which registration was sought are in Class 35 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Carrying out marketing surveys, business communication relating to business management; advertising, market management via data transmission means; market management consultancy: sales promotion; consultancy for individuals and businesses for the assessment of the aptitudes and professional skills of personnel; psychological testing for the selection of personnel; assessment of the aptitudes and professional skills of personnel for the planning and execution of the outsourcing of services; business management consultancy’.
5        On 18 August 2010, that mark was registered as an EU trade mark under the number 008914855. That registration was published in Community Trade Marks Bulletin
No 2010/156 of 23 August 2010.
6        On 23 May 2019, the applicant, Epsilon Data Management LLC, filed an application for revocation with EUIPO, on the basis of Article 58(1)(a) of Regulation 2017/1001, on the ground that that mark had not been put to genuine use within a continuous period of five years. That application concerned all the services referred to in paragraph 4 above.
7        On 15 July 2020, the Cancellation Division partially revoked the contested mark in respect of the following services in Class 35: ‘Advertising, market management via data transmission means; market management consultancy: sales promotion; consultancy for individuals and businesses for the assessment of the aptitudes and professional skills of personnel; psychological testing for the selection of personnel; assessment of the aptitudes and professional skills of personnel for the planning and execution of the outsourcing of services’.
8        On 3 August 2020, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division, in so far as the contested mark had been revoked in respect of the services referred to in paragraph 7 above.
9        On 15 September 2020, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division, in so far as the latter had not upheld the application for revocation in its entirety.
10      By the contested decision, the Board of Appeal, first, joined the two appeals referred to in paragraphs 8 and 9 above, secondly, partially upheld the intervener’s appeal and annulled the decision of the Cancellation Division to the extent that it had revoked the contested mark in respect of the following services in Class 35: ‘Market management via data transmission means; market management consultancy: sales promotion’ and, thirdly, dismissed the applicant’s appeal.
11      First of all, the Board of Appeal found that the form in which the contested mark had been used did not alter its distinctive character within the meaning of point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001. In that regard, the Board of Appeal relied on the intervener’s use of the following figurative sign, which has, moreover, also been registered by the intervener as an EU figurative mark under the number 11910213:
12      Next, the Board of Appeal found that use of the contested mark had been proved in connection with the following services in Class 35: ‘Carrying out marketing surveys, business communication relating to business management; market management via data transmission means; market management consultancy: sales promotion; business management consultancy’. As regards those services, the Board of Appeal concluded that the evidence, considered as a whole, was sufficient to demonstrate that the contested mark had been put to genuine use during the relevant period in the relevant territory in connection with those services.
13      Lastly, the Board of Appeal found that the intervener had not proved genuine use of the contested mark in connection with the following services in Class 35: ‘Advertising; consultancy for individuals and businesses for the assessment of the aptitudes and professional skills of personnel; psychological testing for the selection of personnel; assessment of the aptitudes and professional skills of personnel for the planning and execution of the outsourcing of services’. Consequently, it found that the contested mark had to be revoked in respect of those services.
Forms of order sought
14      The applicant claims that the Court should:
–        annul the contested decision;
–        order the revocation of the contested mark on account of its non-use;
–        order EUIPO to pay the costs.
15      EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
16      In support of its action for annulment, the applicant relies on a single plea in law, alleging, in essence, infringement of Article 58(1)(a) of Regulation 2017/1001, consisting of two parts. In the context of the first part, it submits that the contested mark has not been used in its registered form. The second part alleges that there is a lack of proof of use of the contested mark in connection with all the services in respect of which the Board of Appeal found that there had been genuine use of that mark.
17      Article 58(1)(a) of Regulation 2017/1001 provides that the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO or on the basis of a counterclaim in infringement proceedings if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.
18      Article 10(3) and (4) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), which is applicable to revocation proceedings pursuant to Article 19(1) of that regulation, provides, inter alia, that the proof of use of a trade mark must concern the place, time, extent and nature of use of the mark.
19      In the present case, since the place, time and extent of use are not disputed in the context of the present proceedings, it is necessary to analyse the arguments put forward by the parties in so far as they relate to the nature of use of the contested mark, namely, first, to the use of the mark in a form which differs from the contested mark as registered (the first part of the single plea) and, secondly, to the use of the contested mark in connection with the services covered by that mark (the second part of the single plea).
The first part of the single plea, alleging failure to use the contested mark in its registered form
20      In the context of the first part of the single plea, the applicant submits, in essence, that use of the contested mark has not been established, because the evidence submitted in that regard concerned use of a sign which altered the distinctive character of that mark.
21      EUIPO and the intervener dispute the applicant’s arguments.
22      Under point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 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, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor, constitutes use of the EU trade mark.
23      According to the case-law, the purpose of point (a) of the second subparagraph of Article 18(1) 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 such situations, where the sign used in trade differs from the form in which it was registered only in negligible elements, with the result that the two signs can be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the registered trade mark may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (see judgment of 27 February 2014, Lidl Stiftung v OHIM – Lídl Music (LIDL), T‑226/12, not published, EU:T:2014:98, paragraph 49 and the case-law cited).
24      In the present case, it must therefore be examined whether the differences between the sign used on the market, as represented in paragraph 11 above, and the contested mark, in its registered form, alter the distinctive character of the contested mark.
25      In that regard, in the first place, it is necessary to examine the distinctive and dominant character of the elements which constitute the contested mark as registered (see, to that effect and by analogy, judgment of 10 June 2010, Atlas Transport v OHIM – Hartmann (ATLAS TRANSPORT), T‑482/08, not published, EU:T:2010:229, paragraph 31 and the case-law cited).
26      The contested mark as registered consists of word elements written in orange and of figurative elements. As regards the word elements, that mark contains, first, the word element ‘epsilon’, in which the first letter, ‘e’, has been stylised by being replaced with the Greek letter ‘ɛ’, and, secondly, the word element ‘technologies’, which is smaller than the word element ‘epsilon’. The two word elements are divided vertically over three lines and are written in a standard font. As regards the figurative elements, the contested mark contains an element representing a heart filled with orange and white decorative motifs between two square brackets which, according to the applicant, have a brain-like structure (‘the heart between two square brackets’). That mark also has two fading horizontal orange lines, one at the top and the other at the bottom of the sign (‘the horizontal lines’).
27      It must be pointed out at the outset that, according to the case-law, where a trade mark consists of word elements and of figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods or services in question by quoting the word elements than by describing the figurative elements of that mark (see judgment of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (Happy Moreno choco), T‑498/18, EU:T:2019:763, paragraph 78 and the case-law cited).
28      Accordingly, as regards the figurative elements of the contested mark, namely, the representation of the heart between two square brackets and the horizontal lines, it must be stated that those elements are, pursuant to the case-law cited in the preceding paragraph, in principle, less distinctive than the word elements in that mark. In particular, those elements are purely decorative and will not be perceived by consumers as elements which indicate the commercial origin of the services at issue.
29      Furthermore, in spite of the comparatively large size of some of those figurative elements, it must be held, as the Board of Appeal found, that they have a relatively marginal visual impact, because they are neither striking nor do they exhibit any particular originality.
30      Those assessments cannot be called into question by the applicant’s argument that the figurative element representing the heart between two square brackets has distinctive character, on account of its creative and original shape and the lack of any direct meaning in relation to the services at issue.
31      Even if the graphic characteristics of the heart were to confer on it an appearance close to that of a brain, as the applicant submits, that figurative element cannot be held to differ substantially from a straightforward representation of a heart. It is apparent from the case-law that an element representing a heart is commonly used in advertising language to express a particular attachment and that it is devoid of distinctive character (judgment of 7 November 2019, Local-e-motion v EUIPO – Volkswagen (WE), T‑568/18, not published, EU:T:2019:783, paragraph 55). Consequently, as EUIPO contends, that figurative element will be understood by consumers as merely a decoration or, at most, as an allusion to love or affectionate appreciation showing that that element is laudatory in relation to the services at issue. It follows that that element cannot be held to be distinctive.
32      The Board of Appeal was therefore right in finding that the distinctive character of the contested mark was not essentially derived from those figurative elements, namely the representation of the heart between two square brackets and the horizontal lines.
33      As regards the word elements of the contested mark, it must be stated that, first, as EUIPO suggests in its response, the word ‘epsilon’ will be understood by consumers as meaning the fifth letter of the Greek alphabet, which is also emphasised by the use of that Greek letter as the first letter in that element. That element in no way describes the services in respect of which the contested mark has been registered and must therefore be held to be distinctive.
34      Secondly, as regards the word element ‘technologies’, it must be held that consumers in the European Union will understand that element as a word which is part of basic English vocabulary. What is more, according to the case-law, the word element ‘technologies’ is generic (see, to that effect, judgment of 30 November 2009, Esber v OHIM – Coloris Global Coloring Concept (COLORIS), T‑353/07, not published, EU:T:2009:475, paragraph 35). It must therefore be held that that element is not in itself capable of affecting the distinctive character of the contested mark.
35      Furthermore, on account of its position and its size, the word element ‘epsilon’ dominates the overall impression created by the contested mark, whereas the word element ‘technologies’ occupies a secondary position.
36      It must therefore be held that the contested mark derives its distinctive character essentially from the word element ‘epsilon’ in that mark, which is, moreover, dominant.
37      In the second place, it is necessary to examine, in the light of the intrinsic qualities of the elements in the contested mark, as established in paragraphs 28 to 36 above, whether the differences between the sign used and the contested mark are capable of altering the distinctive character of that mark.
38      In that regard, it must be stated, first of all, that the sign used differs from the contested mark in the arrangement of the letters, the use of lower-case letters in a standard font instead of upper-case letters in a standard font, the colour of the word element ‘technologies’ and the omission of the figurative elements representing the heart between two square brackets and the horizontal lines. By contrast, the two signs at issue retain the word elements ‘epsilon’ and ‘technologies’. Furthermore, in both of those signs, the word element ‘epsilon’ is in the same orange colour and the first letter, ‘e’, in that element has been stylised by being replaced with the Greek letter ‘ɛ’.
39      In that context, it must be held that the differences between the contested mark and the form in which it has been used are based, first, on the figurative elements, which, as has been held in paragraphs 28 to 36 above, are not regarded as the most distinctive and dominant elements in the contested mark. On the contrary, those elements will be perceived by consumers as negligible differences between the signs at issue.
40      Secondly, the differences which are based on the word elements and consist of their different orientations, the use of upper-case or lower-case letters and the use of a different colour for the word element ‘technologies’ do not alter the representation of those elements significantly, above all in the light of the similarities in that presentation. In that regard, it must be pointed out, on the one hand, that in the contested mark and in the sign used, the dominant and most distinctive element, namely the word element ‘epsilon’, is in the same orange colour, whilst the first letter, ‘e’, in that element has been stylised by being replaced with the Greek letter ‘ɛ’. Furthermore, all the other letters in the two word elements are written, in both signs, in a standard font. On the other hand, since the distinctive character of the contested mark does not arise essentially out of the word element ‘technologies’, the differences affecting the representation of that word element are not, in any event, decisive in the examination of whether the distinctive character of that mark has been altered.
41      It follows that the differences between the contested mark and the sign used are based essentially on elements which are not the dominant or most distinctive elements.
42      According to the case-law, where a mark is constituted or composed of a number of elements and one or more of them is not distinctive, the alteration of those elements or their omission is not such as to alter the distinctive character of that trade mark as a whole (see judgment of 21 January 2015, Sabores de Navarra v OHIM – Frutas Solano (KIT, EL SABOR DE NAVARRA), T‑46/13, not published, EU:T:2015:39, paragraph 37 and the case-law cited). Consequently, it must be held, in the present case, that the differences between the two signs at issue are not such as to alter the distinctive character of the contested mark as a whole.
43      Accordingly, it must be held that, contrary to what the applicant submits, the sign used in trade does not create an overall impression which is significantly different from that of the contested mark. In that regard, it must be stated that the applicant’s argument that the vertical form of the contested mark contrasts with the horizontal form of the sign used in trade can also not succeed. Since the two word elements ‘epsilon’ and ‘technologies’ remain easily and immediately identifiable in both of the signs at issue, their vertical or horizontal position has no significant impact on the overall impression created by those signs.
44      It follows that the applicant errs in claiming that the sign as used corresponds to a simple stylisation of the word elements ‘epsilon’ and ‘technologies’. On the contrary, since the sign used does not differ significantly from the contested mark, in particular since the distinctive character of the contested mark has not been altered, the use of the sign used must be regarded as use of the trade mark for the purposes of the first subparagraph of Article 18(1) of Regulation 2017/1001.
45      That finding cannot be called into question by the applicant’s other arguments.
46      First, the applicant submits that, since the sign used corresponds to a simple stylisation of the words ‘epsilon’ and ‘technologies’, the scope of protection is therefore limited to that particular form, given that, on the one hand, the intervener does not own a word mark consisting of those two words and, on the other hand, there are a number of other marks that are registered in respect of services in Class 35 which contain the word ‘epsilon’. The applicant thus contends that, if the use of the sign used were held, in the present case, to be sufficient to prove use of the contested mark, the scope of protection of the intervener’s two marks, namely the contested mark and the mark used, would include any other stylised variation of the words ‘epsilon’ and ‘technologies’, which could not be accepted.
47      In that regard, it must be stated that, as has been held in paragraph 44 above, the sign used is not a simple stylisation of the word elements ‘epsilon’ and ‘technologies’.
Since the arguments on the part of the applicant which have been referred to in the preceding paragraph are based on that erroneous premiss, they are unfounded.
48      Secondly, the applicant submits that the intervener would not have had to have a second EU trade mark representing the sign used registered if the use of that sign constituted use of the contested mark.
49      It is clear from point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 that, for the purposes of proving use of a mark, that mark may be used in a modified form which does not alter its distinctive character, regardless of whether the proprietor of that mark has registered that modified form as a trade mark.
50      According to the case-law of the Court of Justice, the fundamental condition for
genuine use of a trade mark is that, as a consequence of that use, that mark may serve to identify, in the minds of the relevant class of persons, the goods to which it relates as originating from a particular undertaking (see, to that effect, judgment of 29 November 2018, Alcohol Countermeasure Systems (International) v EUIPO, C‑340/17 P, not published, EU:C:2018:965, paragraph 59 and the case-law cited). The fact that the same sign has been used in respect of the contested mark or in respect of trade mark No 11910213 could not give rise to any difference in the minds of the relevant class of persons as regards the fact that the contested mark designated services originating from the intervener.
51      The fact that the intervener is the proprietor of a mark which is identical to the sign used must therefore be held to be irrelevant for the purposes of assessing whether the contested mark has been put to genuine use. Consequently, the applicant’s argument which is at issue must be rejected as ineffective.
52      In the light of the foregoing, it must be held that the Board of Appeal did not make any error of assessment in finding that the contested mark had, for the purposes of point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001, been used in a form which did not alter its distinctive character.
53      The first part of the single plea must therefore be rejected.
The second part of the single plea, alleging failure to use the contested mark in connection with the services covered by that mark
54      In the context of the second part of the single plea, the applicant criticises the Board of Appeal for finding that the evidence submitted by the intervener proved use of the contested mark in connection with all of the following services in Class 35: ‘Carrying out marketing surveys, business communication relating to business management; market management via data transmission means; market management consultancy: sales promotion; business management consultancy’.
55      EUIPO and the intervener dispute the applicant’s arguments.
56      As regards, in the first place, the following services in Class 35: ‘Carrying out marketing surveys, business communication relating to business management; market management via data transmission means; business management consultancy’, it must be pointed out that, first, the applicant confines itself to disputing generally the Board of Appeal’s finding that genuine use of the contested mark had been proved in relation to those services. It does not put forward any specific argument for the purposes of showing how exactly that finding on the part of the Board of Appeal is incorrect.
57      Secondly, the applicant confines itself to referring to its line of argument regarding failure to use the contested mark in its registered form, which it has relied on in the context of the first part of the single plea. As has been held in paragraph 52 above, that line of argument on the part of the applicant is incorrect, because the contested mark has been used in a form which does not alter its distinctive character.
58      In those circumstances, the second part of the single plea must be rejected in so far as the applicant disputes that there has been genuine use of the contested mark in connection with the services of ‘carrying out marketing surveys, business communication relating to business management; market management via data transmission means; business management consultancy’.
59      In the second place, as regards the services of ‘market management consultancy: sales promotion’ in Class 35, the applicant submits, in essence, that the evidence provided does not prove use of the contested mark in connection with the whole of that category of services, because the contested mark has been used only in connection with a narrower part, or even a sub-category, of those services, namely carrying out marketing surveys.
60      It must therefore be ascertained whether the Board of Appeal made an error of assessment in finding that use of the contested mark had been proved in connection with the whole of the category of ‘market management consultancy: sales promotion’.
61      In that regard, first of all, it must be stated, as the Board of Appeal correctly observed in paragraphs 92 and 93 of the contested decision, that numerous invoices with descriptions of the services provided (documents No 1 to No 114 in EUIPO’s case file) prove use of the contested mark in connection with relevant services which are aimed at improving the market share of the company which hires those services and reinforcing its position in the market, such as, inter alia:
–        ‘brand tracking’, which refers to a way of continuously measuring the health of a brand, in the light of consumers’ usage of it and an assessment of their perception of it;
–        ‘content plan performance’, which is a marketing tool that allows marketers to measure direct business results such as revenue;
–        services in connection with social analytics key performance indicators (KPI), which are values used by marketing and social media teams to measure the performance of social media campaigns;
–        consumer behaviour analysis, which refers to the study of the habits of individual customers, groups or organisations when they select, buy, use and dispose of ideas, goods and services to satisfy their needs and wants;
–        best practice analysis, which includes discovering and utilising the optimal ways of operating to achieve a company’s business objectives.
62      Furthermore, as EUIPO contends in its response, it is clear from those invoices and the descriptions of the services provided with them that the services which have been referred to in paragraph 61 above comprise, inter alia, not only market surveys, as the applicant claims, but also action plans, advice and recommendations which are supplied to the intervener’s clients.
63      Next, it must be pointed out that, in addition to the services which have been referred to in paragraph 61 above, the abovementioned invoices prove use in connection with a number of other services, such as, for example, the benchmarking of competitors, the identification and collection of leads from the digital market, social media research, services of analysis of the trade
marks of the client and of its competitors in the media, the analysis of the contribution of each digital platform in engaging consumers, the services of a contact centre with the aim of contacting the end consumers in order to offer them the services of the client, the services of investment on digital communication platforms and other services of a similar kind.
64      It follows from the foregoing that the applicant’s argument that the intervener has used the contested mark solely in connection with part of the category of ‘market management consultancy: sales promotion’, namely carrying out marketing surveys, has no factual basis.
65      Furthermore, that evidence shows that that mark has been used in connection with various services which have the objective of, inter alia, providing the intervener’s clients with information about market management and promoting those clients’ sales. It therefore shows sufficiently that there has been use of the contested mark in connection with the whole of the category of
‘market management consultancy: sales promotion’.
66      That finding cannot be called into question by the applicant’s other arguments.
67      First, the applicant submits that the intervener should have proved use of the contested mark in relation to services which allowed its clients to engage with their own customers. It states, in that regard, that ‘sales promotion’ is the service of promoting to customers, which involves promoting the intervener’s clients’ goods and/or services publicly and outwardly to the intervener’s clients’ customers.
68      It must be stated that that argument on the part of the applicant is based on a definition of ‘sales promotion’ which is too narrow. As a matter of fact, those services include all services which have the objective of promoting sales and not only those which are provided to clients of those who hire those services. That argument must therefore be rejected.
69      Secondly, the applicant submits that the intervener should have proved that its marketing analysis had improved its customers’ position on the market or the quality of their advertising.
70      According to the case-law, in interpreting the concept of genuine use, account should be taken of the fact that the ratio legis of the requirement that the contested mark must have been put to genuine use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks (see judgment of 11 April 2019, Fomanu v EUIPO – Fujifilm Imaging Germany (Representation of a butterfly), T‑323/18, not published, EU:T:2019:243, paragraph 23 and the case-law cited).
71      Consequently, it is not necessary to prove that the services provided are effective in order to prove genuine use of the mark. The applicant’s argument must therefore be rejected.
72      In the light of the foregoing, it must be held that the Board of Appeal was right in finding that genuine use of the contested mark had been proved in connection with the whole of the category of ‘market management consultancy: sales promotion’.
73      Consequently, the second part of the plea and therefore the single plea relied on in support of the present action must be rejected as unfounded and
that action must thus be dismissed in its entirety as unfounded, without it being necessary to rule on the admissibility of the head of claim requesting that the Court order the revocation of the contested mark on account of its non-use.
Costs
74      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.
75      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 (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Epsilon Data Management LLC to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Epsilon Technologies, SL.
Tomljenović
Schalin
Kukovec
Delivered in open court in Luxembourg on 16 November 2022.
E. Coulon
M. van der Woude
Registrar
President
*Language of the case: English.