Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Third Chamber)

10 September 2025 ([\*](#Footnote*))

( EU trade mark – Opposition proceedings – Application for the EU word mark VINATIS – Earlier Benelux word mark VINITES – Relative ground for refusal – Genuine use of the earlier mark – Article 47(2) and (3) of Regulation (EU) 2017/1001 – Obligation to state reasons – Article 94(1) of Regulation 2017/1001 – Admissibility of new evidence – Article 95(2) of Regulation 2017/1001 – Cross-claim before the General Court )

In Case T‑86/24,

**Vinatis SAS,** established in Annecy (France), represented by J. Canlorbe, lawyer,

applicant,

v

**European Union Intellectual Property Office (EUIPO),** represented by T. Klee, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

**Vinites BV,** established in Haarlem (Netherlands), represented by L. van Leeuwen and J. Koekkoek, lawyers,

THE GENERAL COURT (Third Chamber),

composed of P. Škvařilová-Pelzl, President, G. Steinfatt and D. Kukovec (Rapporteur), Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 2 April 2025,

gives the following

**Judgment**

1        By its action based on Article 263 TFEU, the applicant, Vinatis SAS, seeks the partial annulment and alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 December 2023 (Case R 2110/2022-5) (‘the contested decision’).

I.      **Background to the dispute**

2        On 17 July 2020, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign VINATIS.

3        The mark applied for covered goods and services in Classes 32, 33 and 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.

4        On 23 November 2020, the intervener, Vinites BV, filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

5        The opposition was based on the earlier Benelux word mark VINITES for goods and services in Classes 33, 35, 41 and 42. As far as relevant for the present case, those were, in particular, services in Classes 35 and 41 corresponding to the following description:

–        Class 35: ‘Export and import of goods, including the goods mentioned in Class 33 and the packaging; all the aforementioned services also in the context of wholesaling and retailing’ (‘the services at issue in Class 35’);

–        Class 41: ‘Organisation of wine tastings and culinary events for educational, recreative or cultural purposes; courses and education regarding wine; publishing of newsletters, brochures and other printed matters related to wine and food; education regarding vinology; publishing of magazines; organisation of cultural and leisure events in the field of wine, food and lifestyle; education and entertainment; education, providing of training and courses; arranging and conducting of congresses, seminars, lectures and other educational activities; organising sporting, cultural, musical and educational events; organisation of trade fairs and exhibitions for cultural and educational purposes’.

6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

7        Following the applicant’s request, EUIPO invited the intervener to furnish proof of genuine use of the earlier mark relied on in support of the opposition. The intervener complied with that request within the prescribed period.

8        On 31 August 2022, the Opposition Division rejected the opposition in its entirety on the ground that the proof of use of the earlier mark for any of the goods and services covered by that mark was insufficient.

9        On 31 October 2022, the intervener filed a notice of appeal with EUIPO against the Opposition Division’s decision.

10      By the contested decision, the Board of Appeal declared that the earlier mark was put to genuine use for the following services:

–        ‘Import of goods, including the goods mentioned in Class 33 and the packaging; all aforementioned services also in the context of wholesaling and retailing’ (‘the import services in Class 35’);

–        ‘Education and entertainment; education, providing of training and courses; arranging and conducting of educational activities; organising, cultural, and educational events; all the aforesaid relating to food and drink; organisation of wine tastings and culinary events for educational, recreative or cultural purposes; courses and education regarding wine; education regarding vinology; organisation of cultural and leisure events in the field of wine, food and lifestyle’ in Class 41 (‘the services at issue in Class 41’).

11      In those circumstances, the Board of Appeal annulled the decision of the Opposition Division and remitted the case to it ‘for further prosecution under Article 8(1)(b) [of Regulation 2017/1001]’.

II.    **Forms of order sought**

A.      **Forms of order sought in support of the main action**

12      The applicant claims, in essence, that the Court should:

–        annul the contested decision in so far as the Board of Appeal declared that the earlier mark was put to genuine use for the import services in Class 35 and for the services at issue in Class 41;

–        reject the opposition in its entirety;

–        order EUIPO to pay the costs, including those incurred in the proceedings before the Board of Appeal.

13      EUIPO contends, in essence, that the Court should:

–        dismiss the action in its entirety;

–        order the applicant to pay the costs in the event that an oral hearing is convened;

–        in the alternative, uphold the action in part by annulling the contested decision, in so far as the Board of Appeal declared that the earlier mark was put to genuine use for the import services in Class 35 and dismiss the remainder of the action;

–        order each party to bear its own costs.

14      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

B.      **Forms of order sought in support of the cross-claim**

15      The intervener claims, in essence, that the Court should:

–        annul the contested decision in so far as the Board of Appeal declared that the earlier mark was not put to genuine use for the services of ‘export of goods, including the goods mentioned in Class 33 and the packaging; all aforementioned services also in the context of wholesaling and retailing’ in Class 35 (‘the export services in Class 35’);

–        order EUIPO to pay the costs.

16      The applicant contends that the Court should:

–        dismiss the cross-claim;

–        order the intervener to pay the costs.

17      EUIPO contends that the Court should:

–        dismiss the cross-claim;

–        order the intervener to pay the costs, in the event that an oral hearing is convened.

III. **Law**

A.      **The cross-claim**

18      In support of its cross-claim, the intervener raises a single plea in law, alleging, in essence, infringement of Article 47(2) and (3) of Regulation 2017/1001. It claims that genuine use of the earlier mark is demonstrated for the export services in Class 35 and submits, in that regard, 19 invoices contained in Annexes C.8.1 to C.8.8 attached to the cross-claim, which, in its view, must be regarded as admissible.

19      EUIPO and the applicant dispute the intervener’s arguments and claim that the evidence contained in Annexes C.8.1 to C.8.8 is inadmissible.

20      The purpose of actions before the Court under Article 72(2) of Regulation 2017/1001 is to review the legality of decisions of the Boards of Appeal. In the context of that regulation, pursuant to Article 95 thereof, that review must be carried out in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 1 February 2005, *SPAG* v *OHIM – Dann and Backer (HOOLIGAN)*, T‑57/03, EU:T:2005:29, paragraph 17 and the case-law cited). It follows that the Court may not annul or alter a decision against which an action has been brought on grounds which come into existence subsequent to its adoption (judgments of 11 May 2006, *Sunrider* v *OHIM*, C‑416/04 P, EU:C:2006:310, paragraph 55, and of 13 March 2007, *OHIM* v *Kaul*, C‑29/05 P, EU:C:2007:162, paragraph 53).

21      Therefore, it is not the Court’s function to review the facts in the light of evidence adduced for the first time before it. To allow such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ submissions may not alter the subject matter of the proceedings before the Board of Appeal. Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see judgment of 14 May 2009, *Fiorucci* v *OHIM – Edwin (ELIO FIORUCCI)*, T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).

22      It must be held that the evidence contained in Annexes C.8.1 to C.8.8 attached to the cross-claim was not submitted in the course of the proceedings before EUIPO, but was submitted for the first time before the Court. Taking that evidence into account would, for the purposes of the case-law cited in paragraphs 20 and 21 above, change the factual context of the dispute before the Court. That evidence must therefore be declared inadmissible.

23      It should be observed that the intervener’s arguments, submitted in support of its cross-claim, are based exclusively on that evidence, with the result that they are unsubstantiated and must be rejected.

24      In those circumstances, the single plea, and consequently the cross-claim in its entirety, must be rejected.

B.      **The main action**

1.      ***The evidence submitted by the intervener for the first time before the Court***

25      In support of its response, the intervener submits the documents contained in Annexes C.4 and C.5 as ‘additional proof of use’, which, in its view, must be regarded as admissible.

26      The applicant and EUIPO argued at the hearing that the evidence contained in Annexes C.4 and C.5 to the intervener’s response is inadmissible.

27      It must be noted that those documents were not submitted in the course of the proceedings before EUIPO, but were submitted for the first time before the Court. Accordingly, in the light of the case-law cited in paragraphs 20 and 21 above, they cannot be taken into consideration and must be declared inadmissible.

2.      ***Substance***

28      The applicant relies, in essence, on two pleas in law, alleging, first, infringement of Article 47(2) and (3) of Regulation 2017/1001 and, secondly, infringement of Article 94(1) of that regulation. It is appropriate to begin the examination of the present case by analysing the second plea.

(a)    ***The second plea, alleging infringement of** **Article 94****(1) of Regulation 2017/1001***

29      By its second plea, the applicant complains, in essence, that the Board of Appeal infringed its obligation to state reasons.

30      EUIPO, supported by the intervener, disputes the applicant’s arguments.

31      The first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. However, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (see judgment of 9 July 2008, *Reber* v *OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart)*, T‑304/06, EU:T:2008:268, paragraph 55 and the case-law cited).

32      In the present case, the applicant submits that the Board of Appeal did not give sufficient reasons for its conclusion concerning the genuine use of the earlier mark for the services at issue in Class 41, in particular, in so far as it did not respond to the arguments relating to the ‘ancillary’ nature of the provision of those services.

33      In that regard, it must be observed, first of all, that, in paragraph 120 of the contested decision, the Board of Appeal expressly referred to the applicant’s argument concerning the ‘ancillary’ nature of the services at issue in Class 41. Next, in paragraphs 121 to 126 of the contested decision, it cited the case-law which, in its view, was relevant in the present case. Finally, it is apparent from paragraphs 127 to 129 of that decision that, on the basis of that case-law, the Board of Appeal rejected the applicant’s argument as unfounded, following which it concluded, while providing clear and comprehensible reasons in that regard, that the earlier mark had been put to genuine use for the services at issue in Class 41.

34      In the light of the foregoing, the applicant is not justified in claiming that it was not in a position to know the reasons for the contested decision or that the EU judicature was unable to exercise its power of review in accordance with the case-law cited in paragraph 31 above.

35      It must therefore be held that the Board of Appeal did not infringe its obligation to state reasons and, consequently, the second plea must be rejected.

(b)    ***The first plea, alleging infringement of** **Article 47****(2) and (3) of Regulation 2017/1001***

36      The first plea, which comprises, in essence, two parts, alleges infringement of Article 47(2) and (3) of Regulation 2017/1001. By that plea, the applicant disputes the assessment made by the Board of Appeal which led it to conclude that the earlier mark had been put to genuine use for the import services in Class 35 (first part) and for the services at issue in Class 41 (second part).

37      Article 47(2) of Regulation 2017/1001, read in conjunction with Article 47(3) of that regulation, provides that, if the applicant so requests, the proprietor of an earlier national trade mark who has given notice of opposition is to furnish proof that, during the five-year period preceding the date of filing of the EU trade mark application, the earlier national trade mark has been put to genuine use in the Member State in which that mark is protected in connection with the goods or services in respect of which it is registered and on which the opposition is based, or that there are proper reasons for non-use, provided that the earlier national trade mark has at that date been registered for not less than five years. In the absence of proof to that effect, the opposition is to be rejected.

38      As a preliminary point, it should be noted that the Board of Appeal found that, for the assessment of genuine use of the earlier mark, the relevant period was that from 30 January 2015 to 29 January 2020, inclusive, and that the relevant territory was the Benelux countries. There is no reason to call into question those findings, which are, moreover, not disputed by the applicant.

(1)    *The first part of the first plea, concerning genuine use of the earlier mark for the import services in Class 35*

39      In the context of the first part of the first plea, the applicant criticises the Board of Appeal for finding that the earlier mark had been put to genuine use for the import services in Class 35. That part consists, in essence, of two complaints, the first alleging a misinterpretation of the definition of the services at issue in Class 35, and the second alleging an incorrect assessment of the evidence submitted in support of genuine use of the earlier mark for the import services in Class 35.

(i)    *The first complaint, alleging a misinterpretation of the definition of the services at issue in Class 35*

40      In paragraph 104 of the contested decision, the Board of Appeal found, in essence, that the services at issue in Class 35, as referred to in paragraph 5 above, covered the sending out of goods from one country to another and the bringing into a country of goods for resale to end consumers (retail) or to businesses (hotels, restaurants, wine retailers, wholesalers and cash and carry).

41      The applicant disputes that assessment on the part of the Board of Appeal. In essence, it complains that the Board of Appeal distorted the wording of the description of the services at issue in Class 35 by interpreting it too broadly, in particular, by including in it any acquisition or transport of goods from one country to another. According to the applicant, those services cannot be confused with retailing or wholesaling services and must be understood, in essence, as corresponding to a specific activity of intermediation, on behalf of third parties, in inter-State trade in goods.

42      EUIPO, supported by the intervener, disputes the applicant’s arguments.

43      According to the case-law, in order to interpret the terms used in the list of goods and services for which a mark is registered, it is necessary to examine the scope of each of those terms individually, taking into account their customary and ordinary meaning (see, by analogy, judgment of 7 December 2018, *Edison* v *EUIPO (EDISON)*, T‑471/17, not published, EU:T:2018:887, paragraph 38). In addition, the use of general terms, including the general indications of the class headings of the Nice Classification, must be interpreted as including all the goods or services clearly covered by the literal meaning of the indication or term (see judgment of 4 September 2024, *Tertianum* v *EUIPO – DPF (TERTIANUM)*, T‑73/23, not published, EU:T:2024:578, paragraph 50 and the case-law cited).

44      In the present case, the Board of Appeal rightly referred in its examination to the natural and usual meaning of the verbs ‘import’ and ‘export’, which, according to the *Oxford English Dictionary*, mean, respectively, ‘to bring in or cause to be brought in (a commodity, merchandise, goods, etc.) from another country or territory for use or resale in the domestic market’ and ‘to send out commodities of any kind from one country to another country’.

45      The Board of Appeal also found that the description of the services at issue in Class 35 did not cover ‘import-export agency services’, but did, however, include the ‘aforementioned services also in the context of wholesaling and retailing’, which allowed it to adopt the definition referred to in paragraph 40 above. In so doing, the Board of Appeal did not distort the wording of the description of those services but, on the contrary, gave a precise specification of them.

46      By contrast, acceptance of the interpretation proposed by the applicant would result in a failure to comply with the precise wording of the description of the services at issue in Class 35.

47      All the arguments which the applicant has put forward in support of its position primarily concern the definition of the concepts of ‘import-export agency services’, ‘import-export services’ or ‘import’ and/or ‘export’ services. However, the definition of the services at issue in Class 35 cannot be limited solely to those concepts. It is sufficient to note, in that regard, that the indication concerning the provision of those services ‘also in the context of wholesaling and retailing’ clearly and expressly demonstrates the intervener’s intention to cover a range of services which are not exclusively related to the activities of an agent responsible for imports and exports, but which encompass more complex and specific services, namely, in essence, the services of sending out and bringing in, from one country to another, of goods in the context of their wholesaling or retailing.

48      In the light of that clear and express indication, it should also be stated that, contrary to what the applicant appears to claim, the fact that the earlier mark was not registered for wholesaling and retailing services as such is irrelevant for the definition of the services at issue in Class 35. The definition of the services for which the earlier mark is registered cannot depend on the intervener’s choice of whether or not to register that mark for other goods and/or services.

49      Moreover, the Board of Appeal’s definition of the services at issue in Class 35 cannot be called into question by the applicant’s arguments that that Board of Appeal failed to take into account the fact that those services had to be provided to third parties, and not for internal purposes or for the personal needs of the intervener.

50      It is true that it is clear from the case-law that genuine use of a mark requires that that mark be offered to third parties on the market for the goods and/or services concerned in order to create outlets in the context of the public and outward use of that mark (see, to that effect, judgment of 6 July 2022, *Les Éditions P. Amaury* v *EUIPO – Golden Balls (BALLON D’OR)*, T‑478/21, not published, EU:T:2022:419, paragraph 68). The applicant therefore rightly argues that the evidence must establish that the earlier mark was used for services offered to third parties and not solely for the internal purposes or needs of the intervener.

51      However, there is nothing to suggest that the definition of the services at issue in Class 35, as adopted by the Board of Appeal, or the reasons in respect of which that Board of Appeal adopted that definition infringe those principles.

52      Furthermore, in that context, contrary to what the applicant appears to claim, no contradiction in the grounds of the contested decision arises from the fact that, in paragraphs 91 to 100 of the contested decision, the Board of Appeal itself confirmed that the services included in Class 35 had to be provided to third parties. On the contrary, that fact demonstrates rather that that Board of Appeal’s approach is consistent and in accordance with the principles referred to in paragraph 50 above.

53      In the light of the foregoing, the applicant is not justified in arguing that the Board of Appeal, for the purpose of examining genuine use of the earlier mark, relied on an incorrect definition of the services at issue in Class 35.

54      The first complaint must therefore be rejected.

(ii) *The second complaint, alleging an incorrect assessment of the evidence submitted in support of genuine use of the earlier mark for the import services in Class 35*

55      The Board of Appeal found, in paragraph 108 of the contested decision, that genuine use of the earlier mark had been demonstrated for the import services in Class 35.

56      The applicant disputes that assessment on the part of the Board of Appeal. First, it criticises the Board of Appeal for having relied on insufficient and irrelevant evidence to establish genuine use of the earlier mark for those services. Secondly, the Board of Appeal allegedly made an error of assessment in that, within the services at issue in Class 35, it regarded import and export services as distinct subcategories.

57      EUIPO, supported by the intervener, disputes the applicant’s arguments.

58      In the first place, it is necessary to examine whether the evidence submitted by the intervener establishes genuine use of the earlier mark for the import services in Class 35.

59      In support of its finding that genuine use of the earlier mark has been demonstrated for those services, the Board of Appeal relied on evidence which can be summarised as follows (the numbering of the annexes referred to below, which were also submitted to the Court by the applicant and/or the intervener, corresponds to that used by the Board of Appeal in the list of evidence set out in paragraphs 5 and 7 of the contested decision):

–        six invoices, bearing dates between 2015 and 2020, sent by the intervener to customers in the Netherlands for the supply of large quantities of wine (Annex 2);

–        two undated advertisements for bottles of wine and for ‘Philipponnat’ champagne, each containing, inter alia, the indication ‘imported by Vinites’ in English (Annexes 15 and 17);

–        a 2018 wine guide on the 100 best wines, in which the intervener is referred to as the ‘importer’ of five wines and one champagne and appears in the overall list of ‘importers’ (Annex 18);

–        two cooperation and distribution agreements between the intervener and Portuguese and French suppliers dated 9 July 2019 and August 2019, respectively (‘the cooperation and distribution agreements’) (Annex 27);

–        two invoices sent by Italian and French suppliers to the intervener for the purchase of large quantities of wine, dated 5 March 2019 and 20 February 2020, respectively (Annex 27).

60      First of all, it is necessary to examine the probative value of the cooperation and distribution agreements (Annex 27).

61      By those agreements, as the Board of Appeal stated, the intervener was authorised to act as the sole and exclusive distributor of the products of a French supplier and a Portuguese supplier in the Netherlands. In that regard, it should be noted that the applicant’s claim that, as an exclusive distributor, the intervener should have provided its services to a single customer has no basis in fact (see, in that regard, paragraphs 1.1 and 1.2 of the cooperation and distribution agreements).

62      As regards the services covered by the cooperation and distribution agreements, it is provided, in paragraph 3 of those agreements, that the intervener ‘will [endeavour] to place supplier’s brand(s) on the Dutch market in the best possible way’. To that end, the intervener undertook to ‘monitor important and relevant market and legal developments and trends’ and ‘[to] market and distribute supplier’s products as well as store (stock) adequate quantities thereof’.

63      It must be noted that the content of the services provided by the intervener to the relevant French and Portuguese suppliers, as provided for by the cooperation and distribution agreements, corresponds precisely to the wording of the import services in Class 35, as rightly defined by the Board of Appeal.

64      In that regard, it should be stated that, contrary to the applicant’s claims, the services covered by the cooperation and distribution agreements are not limited to purchasing and resale services. Moreover, as maintained by EUIPO, those services are offered to third parties, to the extent that the French and Portuguese suppliers may benefit from the intervener’s assistance in order to bring on the Netherlands market the goods covered by their mark, in particular, in the context of their sale on that market.

65      Accordingly, it must be concluded that the cooperation and distribution agreements are sufficient to prove use of the earlier mark for the import services in Class 35.

66      Next, the other evidence referred to in paragraph 59 above supports that conclusion.

67      First, while the applicant rightly submits that the advertisements contained in Annexes 15 and 17 and the 2018 wine guide in Annex 18 do not in themselves conclusively demonstrate the provision of import services in Class 35, they confirm, as was found by the Board of Appeal, that, generally, the intervener is an importer, in particular, of third-party branded wines.

68      Secondly, the invoices issued by the intervener and its suppliers, contained in Annexes 2 and 27, confirm, as was found by the Board of Appeal, that the intervener purchases wine in large quantities, in particular, from French and Italian suppliers, on the one hand, and that it supplies the same product to its customers in the Netherlands, on the other. Even if those invoices, taken individually, are not sufficient to demonstrate genuine use of the earlier mark for the import services in Class 35, and, moreover, some of them were issued shortly after the relevant period, they are, taken as a whole, relevant in the context of the other evidence already analysed in paragraphs 60 to 67 above and support the conclusion that the mark was put to genuine use, in particular, in the context of the resale of the goods.

69      Finally, the applicant’s argument that the agreement entered into between the intervener and LIS Logistics BV (referred to as Annex 27 in paragraph 7 of the contested decision) authorising the latter to act as a customs representative confirms that the intervener does not itself provide import-export services to third-parties is irrelevant. It is sufficient to observe, in that regard, that it was found, in paragraph 47 above, that the import services in Class 35 are not equivalent to the services of an agent responsible for imports and exports.

70      In the light of the foregoing, it must be held that, contrary to what the applicant claims, the Board of Appeal did not err in its assessment of the evidence intended to demonstrate genuine use of the earlier mark for the import services in Class 35.

71      In the second place, it is appropriate to examine whether the Board of Appeal made an error of assessment in that, within the services at issue in Class 35, it established two subcategories of services, namely, on the one hand, import services, and, on the other, export services.

72      In that regard, it should be noted that the criterion of the purpose or intended use is of fundamental importance in the definition of a subcategory of goods or services (see judgment of 16 December 2020, *Production Christian Gallimard* v *EUIPO – Éditions Gallimard (PCG CALLIGRAM CHRISTIAN GALLIMARD)*, T‑863/19, not published, EU:T:2020:632, paragraph 35 and the case-law cited). Such an independent subcategory of goods or services must be coherent and homogeneous and be the result of a division which is significant and not arbitrary (see judgment of 16 October 2024, *Fractal Analytics* v *EUIPO – Fractalia Remote Systems (FRACTALIA)*, T‑194/23, not published, EU:T:2024:696, paragraph 122 and the case-law cited).

73      In the present case, the Court observes, as the intervener noted, that the applicant’s arguments in support of its claim that it is impossible to establish the subcategories of services referred to in paragraph 71 above are based, in principle, on the definition of the concept of ‘import-export’. However, it has already been found in paragraph 47 above that the wording of the services at issue in Class 35 is not equivalent to ‘import-export services’.

74      In the light of their purpose, the subcategories of import services, on the one hand, and export services, on the other, constitute, in accordance with the case-law cited in paragraph 72 above, independent, precise and narrow subcategories.

75      It is clear from the definition adopted by the Board of Appeal in paragraph 104 of the contested decision that the purpose of the import services in Class 35 is the bringing into a country of goods for resale, whereas the purpose of the export services in that class is the sending out of goods from one country to another for resale. The fact that each of those subcategories pursues a distinct purpose is also confirmed by the Board of Appeal’s finding, in paragraph 107 of the contested decision, that ‘while the [intervener] import[ed] into the Netherlands, there [was] no evidence that [it] export[ed] … from the Netherlands’.

76      Moreover, in view of the Board of Appeal’s assessments referred to in paragraph 75 above, the applicant cannot validly argue that the Board of Appeal failed to provide any statement of reasons for its decision to distinguish between subcategories within the services at issue in Class 35.

77      In the light of the foregoing, the second complaint of the first part, and, consequently, the first part in its entirety, must therefore be rejected.

(2)    *The second part of the first plea, concerning genuine use of the earlier mark for the services at issue in Class 41*

78      The Board of Appeal found that genuine use of the earlier mark was demonstrated for the services at issue in Class 41, in particular, in the light of the events which were organised under that mark during the relevant period.

79      The applicant disputes that assessment on the part of the Board of Appeal. It submits, in essence, that genuine use of the earlier mark has not been demonstrated for those services, since the aforementioned events were organised by the intervener free of charge and ‘ancillary’ to its wine-selling activities. The applicant claims that the Board of Appeal made several errors in assessing the evidence of use submitted by the intervener.

80      EUIPO, supported by the intervener, disputes the applicant’s arguments.

81      In the first place, in support of its arguments concerning the impact which the fact that the services in question are offered free of charge has on the genuine nature of the use of the earlier mark, the applicant submits that the Board of Appeal misapplied, in the present case, the case-law arising from the judgment of 12 March 2009, *Antartica* v *OHIM* (C‑320/07 P, not published, EU:C:2009:146).

82      However, contrary to what the applicant seems to argue, it follows from that case‑law that the Court of Justice has established a general principle which must be applied irrespective of the nature of the services concerned or the market in which those services are provided, according to which the fact that services may be offered free of charge does not prevent genuine use from being shown (see, to that effect, judgment of 9 September 2011, *Omnicare* v *OHIM – Astellas Pharma (OMNICARE CLINICAL RESEARCH)*, T‑289/09, not published, EU:T:2011:452, paragraph 67).

83      In the light of that case-law of the Court of Justice, it is necessary, in order to determine whether genuine use has been shown or not, to assess whether, by such use of the mark, the undertaking seeks to create or maintain an outlet for those services in the European Union, as against the services of other undertakings. That will not be the case, however, if those services do not enter into competition with services offered on the market by other undertakings, that is to say, if they are not – and are not intended to be – offered commercially (see, to that effect, judgment of 9 September 2011, *OMNICARE CLINICAL RESEARCH*, T‑289/09, not published, EU:T:2011:452, paragraph 68).

84      Accordingly, the Board of Appeal did not err in law in that, in applying the case‑law cited in paragraph 81 above, it did not regard the provision of the services at issue in Class 41 free of charge to be, as such, an obstacle to finding genuine use of the earlier mark for those services and assessed the nature of those services, which made it possible, in particular, to ascertain whether the intervener sought to create or maintain an outlet for those services as against similar services offered by other undertakings on the same market.

85      In the second place, it is necessary to examine the applicant’s arguments that the services at issue in Class 41 were provided on an ‘ancillary’ basis, since the VINITES sign was not used with the aim of creating or maintaining outlets for the intervener on the market for those services.

86      In the light of the evidence submitted by the intervener in the course of the proceedings before the adjudicating bodies of EUIPO, it has been proven that at least the following events, referred to in paragraph 119 of the contested decision, took place during the relevant period (the numbering of the annexes referred to below, which were also submitted to the General Court by the applicant and/or the intervener, corresponds to that used by the Board of Appeal in the list of evidence in paragraphs 5 and 7 of the contested decision):

–        the wine tasting event held on 18 April 2016 for professionals at a hotel in Amsterdam (Netherlands), at which the attendees were guided and informed about a selection of 100 wines from the intervener’s product portfolio (Annex 9);

–        the ‘Tabali’ event on 15 June 2017, presenting wines from the Limarí Valley in Northern Chile, accompanied by a wine tasting and lunch at a restaurant in Amsterdam (Annex 23);

–        the ‘Romagna’ workshop, which included a wine and food tasting session held on 15 April 2019 in Haarlem (Netherlands), in cooperation with an Italian chef providing, inter alia, training on how to make fresh pasta (Annexes 22 and 24);

–        a wine tasting event entitled ‘Voorjaarsgereverij 2019 FHM’, held at the *Frans Hals Museum* in Haarlem on 1 April 2019, during which guests received guidance on the intervener’s portfolio of wines, participated in several masterclasses and were able to ‘enjoy the museum art works’ (Annexes 22, 25 and 26).

87      First of all, in the light of the list of events referred to in paragraph 86 above, the applicant’s argument concerning ‘the very small amount of evidence’ must be rejected. There is no reason to take the view that the number of those events was insufficient to demonstrate genuine use of the earlier mark. Moreover, it should be noted that, even though the wine tasting held on 2 July 2020 in Luxembourg (Luxembourg) (Annex 8), referred to in paragraph 119 of the contested decision, does not fall within the relevant period, in the context of the other events referred to in paragraph 86 above, it also supports the finding on that use.

88      Next, it should be noted that the events referred to in paragraph 86 above were not limited to the promotion of the intervener’s goods, but offered, at least in part, complex and content-rich programmes.

89      Even if it cannot be ruled out that the ultimate goal of the services consisting in organising such events is to encourage the relevant public to purchase goods produced by the intervener, they are nonetheless in competition with other similar services on the market, in particular, those supplied by undertakings present on the same market as the intervener, which may also provide those services free of charge (see, by analogy, judgment of 9 September 2011, *OMNICARE CLINICAL RESEARCH*, T‑289/09, not published, EU:T:2011:452, paragraph 70).

90      It must therefore be held that, by such use of its mark, the intervener sought to create or to maintain an outlet for its services on the market, as against the services of other undertakings, for the purposes of the case-law referred to in paragraph 83 above.

91      Moreover, it should be noted, as the Board of Appeal observed, that the invoices and commercial offers contained in Annexes 22, 23 and 25 confirm that the intervener was expected to incur expenses relating, in particular, to the supply of equipment and the provision of personnel and catering services. The argument put forward in that regard by the applicant, that the intervener had ordered event organisation services from other companies as such, has no basis in fact. On the contrary, that evidence shows the complexity of the events organised and the active role played by the intervener in that regard.

92      In those circumstances, it must be held that the applicant’s arguments based on the allegedly ‘ancillary’ nature of the provision of the services at issue in Class 41 must be rejected as unfounded.

93      In the third place, the Board of Appeal’s conclusion regarding genuine use of the earlier mark for the services at issue in Class 41 cannot be called into question by the applicant’s argument that the sign VINITES was not used as a mark, but only as the intervener’s company name.

94      According to the case-law, the fact that a word element is used as the company’s trade name does not preclude its use as a mark to designate goods or services (see judgment of 30 November 2009, *Esber* v *OHIM – Coloris Global Coloring Concept (COLORIS)*, T‑353/07, not published, EU:T:2009:475, paragraph 38 and the case-law cited). The case-law has accepted that there is use in relation to goods or services where the sign which constitutes the company name is used in such a way that a link was established between that sign and the goods marketed or the services provided (see, by analogy, judgment of 11 September 2007, *Céline*, C‑17/06, EU:C:2007:497, paragraph 23).

95      In the present case, it is true, as the applicant states, that the letters ‘BV’, indicating the legal form of a company under Netherlands law, are mentioned in some of the invoices and commercial offers sent to the intervener, contained in Annexes 22, 23 and 25.

96      However, in several other items of evidence relating to the events referred to in paragraph 86 above, such as, in particular, screenshots of websites, leaflets, photographs and social media posts, the sign VINITES is used, vis-à-vis the intervener’s customers or potential customers, as an indication of the organiser of those events. Accordingly, through such use, a link was established between that sign and the services at issue in Class 41, as required by the case-law cited in paragraph 94 above. In those circumstances, the fact that the sign VINITES also constitutes the name of the undertaking cannot prevent the public from perceiving that sign as a mark indicating the origin of those services.

97      In the light of the foregoing, the applicant’s arguments do not demonstrate any error of assessment by the Board of Appeal as regards its conclusion concerning genuine use of the earlier mark for the services at issue in Class 41. The second part of the first plea and, accordingly, the first plea in its entirety must therefore be rejected.

98      Consequently, the action must be dismissed in its entirety.

IV.    **Costs**

99      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

100    In the present case, since a hearing has taken place and the applicant has been unsuccessful in the main action, it must be ordered to pay the costs incurred before the Court, in accordance with the forms of order sought by EUIPO and the intervener.

101    Moreover, although the applicant has applied for EUIPO to be ordered to pay the costs relating to the proceedings before the Board of Appeal, it is sufficient to note that, since the present judgment is dismissing the cross-claim brought against the contested decision, it is the operative part of that decision which continues to determine the costs in question (see, to that effect, judgment of 19 May 2021, *Yongkang Kugooo Technology* v *EUIPO – Ford Motor Company (kugoo)*, T‑324/20, not published, EU:T:2021:280, paragraph 89).

102    In respect of the cross-claim, since a hearing has taken place and the intervener has been unsuccessful, it must be ordered to pay the costs incurred before the Court, in accordance with the forms of order sought by EUIPO and the applicant.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Dismisses the cross-claim;**

3.      **In respect of the main action, orders Vinatis SAS to pay the costs;**

4.      **In respect of the cross-claim, orders Vinites BV to pay the costs.**

|  |  |  |
| --- | --- | --- |
| Škvařilová-Pelzl | Steinfatt | Kukovec |

Delivered in open court in Luxembourg on 10 September 2025.

|  |  |  |
| --- | --- | --- |
| V. Di Bucci |  | R. Mastroianni |

|  |  |  |
| --- | --- | --- |
| Registrar |  | President |

---

[\*](#Footref*)      Language of the case: English.

[Top](#document1)