Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

26 March 2025 ([\*](#Footnote*))

( EU trade mark – Revocation proceedings – EU word mark baidu – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 – Lack of use in connection with the goods and services in respect of which the mark is registered )

In Case T‑140/24,

**Xilin Gol League Xiyang Mutton Industry Co. Ltd,** established in Xilinhot (China), represented by I. Valdelomar Serrano, J. Rodríguez-Fuensalida y Carnicero, P. Ramells Higueras, A. Figuerola Moure, P. Muñoz Moreno and N. Polci, lawyers,

applicant,

v

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

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

**Baidu Europe BV,** established in Swalmen (Netherlands),

THE GENERAL COURT (Seventh Chamber),

composed of K. Kowalik-Bańczyk (Rapporteur), President, G. Hesse and I. Dimitrakopoulos, Judges,

Registrar: R. Ūkelytė, Administrator,

having regard to the written part of the procedure,

further to the hearing on 14 November 2024,

gives the following

**Judgment**

1        By its action under Article 263 TFEU, the applicant, Xilin Gol League Xiyang Mutton Industry Co. Ltd, seeks, in essence, the partial annulment and the alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 January 2024 (Joined Cases R 373/2023-5 and R 391/2023-5) (‘the contested decision’).

**Background to the dispute**

2        On 18 October 2006, Baidu Europe BV filed an application for registration of an EU trade mark with EUIPO pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), itself 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 word sign baidu.

4        The goods and services in respect of which registration was sought were in, inter alia, Classes 9 and 38 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 corresponded, in particular, to the following description:

–        Class 9: ‘Computer software used for searching, collecting, indexing and organising information within individual work stations, PCs or computer networks; computer software for use in creating indexes of information, indexes of websites or indexes of other information sources’;

–        Class 38: ‘Telecommunications’.

5        The mark was registered on 29 November 2007 for, inter alia, the goods and services referred to in the preceding paragraph.

6        On 10 February 2021, the applicant filed an application for revocation of that mark under Article 58(1)(a) of Regulation 2017/1001.

7        On 15 December 2022, the Cancellation Division partially upheld the application for revocation, in particular as regards the goods in Class 9 referred to in paragraph 4 above and the services of ‘telecommunications, except for broadcasting of audiovisual content over the internet’, in Class 38.

8        By contrast, the Cancellation Division dismissed the application for revocation with regard to the services of ‘telecommunications, namely broadcasting of audiovisual content over the internet’, in Class 38.

9        On 14 February 2023, Baidu Europe filed a notice of appeal (Case R 373/2023-5) with EUIPO against the decision of the Cancellation Division in so far as that division had partially upheld the application for revocation, in particular with regard to the goods in Class 9 and the services in Class 38 referred to in paragraph 7 above.

10      On 15 February 2023, the applicant filed a notice of appeal (Case R 391/2023-5) with EUIPO against the decision of the Cancellation Division in so far as that division had partially dismissed the application for revocation, namely with regard to the services in Class 38 referred to in paragraph 8 above.

11      By the contested decision, the Board of Appeal, first, dismissed the applicant’s appeal (Case R 391/2023-5).

12      Second, the Board of Appeal partially upheld Baidu Europe’s appeal (Case R 373/2023-5) and annulled the Cancellation Division’s decision in so far as it had upheld the application for revocation with regard to the goods in Class 9 referred to in the first indent of paragraph 4 above.

13      Third, the Board of Appeal dismissed the remainder of Baidu Europe’s appeal (Case R 373/2023-5).

14      Fourth, the Board of Appeal ‘allow[ed]’ the contested mark to stay on the register in respect of the following goods and services:

–        Class 9: ‘Computer software used for searching, collecting, indexing and organising information within individual work stations, PCs or computer networks; computer software for use in creating indexes of information, indexes of websites or indexes of other information sources’;

–        Class 38: ‘Telecommunications, namely broadcasting of audiovisual content over the internet’.

15      The Board of Appeal held that the evidence submitted by Baidu Europe enabled it to establish that the contested mark had been put to genuine use for the goods and services referred to in the preceding paragraph.

**Forms of order sought**

16      In the form of order as it now stands, as clarified at the hearing, the applicant claims, in essence, that the Court should:

–        annul the contested decision in so far as it concerns the goods and services referred to in paragraph 14 above;

–        uphold its appeal before EUIPO (Case R 391/2023-5) and dismiss Baidu Europe’s appeal before EUIPO (Case R 373/2023-5) in so far as it concerned the services in question in Class 9;

–        order EUIPO to pay the costs.

17      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs in the event that a hearing is convened.

**Law**

18      In support of the action, the applicant puts forward a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001. It claims that, contrary to the findings of the Board of Appeal, Baidu Europe has not demonstrated genuine use of the contested mark for the goods and services in question. The evidence provided during the administrative procedure by Baidu Europe is insufficient in the light of the various criteria concerning the nature, time, place and extent of use. In particular, as regards the nature of the use, that evidence does not establish that the contested mark has been used as a trade mark, nor that it has been used in its registered form, nor that it was used in relation to the goods and services in question.

19      EUIPO disputes that the plea in law is well founded.

***Preliminary observations***

20      In the first place, it must be borne in mind that, given the date on which the application for revocation at issue was filed, namely 10 February 2021, which is decisive for the purposes of identifying the substantive law applicable, the present dispute is governed by the substantive provisions of Regulation 2017/1001 (see, to that effect, judgments of 6 June 2019, *Deichmann* v *EUIPO*, C‑223/18 P, not published, EU:C:2019:471, paragraph 6, and of 3 July 2019, *Viridis Pharmaceutical* v *EUIPO*, C‑668/17 P, EU:C:2019:557, paragraph 3).

21      That being so, the range and meaning of the description of the goods and services in question must be understood in the light of the edition of the Nice Classification which was in force at the time when the application for registration of the contested mark was filed, in the present case 18 October 2006 (see, to that effect, judgment of 26 April 2023, *Wenz Kunststoff* v *EUIPO – Mouldpro (MOULDPRO)*, T‑794/21, not published, EU:T:2023:211, paragraph 22 and the case-law cited). Account must therefore be taken of the eighth edition of that classification.

22      In the second place, under Article 58(1)(a) of Regulation 2017/1001, the rights of the proprietor of the EU trade mark are 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, that trade mark has not been put to genuine use in the Union in connection with the goods or services in respect of which it is registered and there are no proper reasons for non-use.

23      According to settled case-law, there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by that mark (see judgment of 3 July 2019, *Viridis Pharmaceutical* v *EUIPO*, C‑668/17 P, EU:C:2019:557, paragraph 38 and the case-law cited). Moreover, the condition relating to genuine use of a trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see judgment of 4 April 2019, *Hesse and Wedl & Hofmann* v *EUIPO (TESTA ROSSA)*, T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 29 and the case-law cited).

24      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark in the course of trade is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by that mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of that mark (see judgment of 8 July 2004, *Sunrider* v *OHIM – Espadafor Caba* *(VITAFRUIT)*, T‑203/02, EU:T:2004:225, paragraph 40 and the case-law cited).

25      In addition, genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of effective and sufficient use of that trade mark on the market concerned (judgments of 12 December 2002, *Kabushiki Kaisha Fernandes* v *OHIM – Harrison (HIWATT)*, T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, *Vitakraft-Werke Wührmann* v *OHIM – Krafft (VITAKRAFT)*, T‑356/02, EU:T:2004:292, paragraph 28).

26      In that regard, under 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), applicable to revocation proceedings in accordance with Article 19(1) of that regulation, evidence of use is to establish the place, time, extent and nature of use of the trade mark for the goods and services in respect of which it is registered and is to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001.

27      An accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (see judgment of 13 February 2015, *Husky CZ* v *OHIM – Husky of Tostock (HUSKY)*, T‑287/13, EU:T:2015:99, paragraph 66 and the case-law cited).

28      In the third place, it must be borne in mind that, in the context of revocation proceedings of a mark, the burden of proof that a trade mark has been put to genuine use rests exclusively on the proprietor of that mark (see, to that effect and by analogy, judgment of 10 March 2022, *Maxxus Group*, C‑183/21, EU:C:2022:174, paragraph 36 and the case-law cited).

29      It is in the light of the above considerations that it is necessary to examine whether the Board of Appeal was correct in finding, in the contested decision, that Baidu Europe had demonstrated genuine use of the contested mark in respect of the goods and services in question.

30      In the circumstances of the present case, it is appropriate to examine at the outset whether Baidu Europe demonstrated that the contested mark has been put to use in relation to the goods and services in question.

***Use in relation to the goods and services in question***

31      The applicant maintains that the evidence produced by Baidu Europe does not make it possible to establish use of the contested mark in relation to the goods and services in question.

32      It is clear from paragraph 54 of the contested decision that Baidu Europe produced, during the administrative procedure, the following evidence:

–        nine invoices issued by it in 2019 and addressed to, in respect of the first three, an Austrian fixed and mobile network operator (A1 Telekom Austria AG), in respect of the next three, a Portuguese television channel (Fuel TV EMEA SA) and, in respect of the last three, a provider of technology used in the entertainment and media sector, established in the United Kingdom (Vubiquity Management Ltd) (‘the initial invoices’);

–        a printout from the online store ‘Google Play Store’ showing a smartphone software application (‘the software application’);

–        five pictures from the software application;

–        a printout from the website ‘apkgk’, from which the software application can be downloaded;

–        two affidavits made in June 2021, the first from a project manager at Baidu Europe, Ms C., and the second from the head of programming of the company Fashion One Television LLC, Mr. S.;

–        two invoices issued by Baidu Europe in 2020 and addressed to a company established in the Netherlands (BeCenter) (‘the additional invoices’);

–        three credit notes issued in 2019 by a German provider of services in the navigation search market (Team Internet AG) and addressed to Baidu Europe.

33      It is necessary to examine whether that evidence establishes use of the contested mark in relation to, first, the goods in question in Class 9, and, second, the services in question in Class 38.

*The goods in question in Class 9*

34      In paragraphs 92 and 93 of the contested decision, the Board of Appeal stated as follows:

‘92. … taken as a whole, the documents submitted by [Baidu Europe] constitute a consistent body of evidence, which make it plausible to conclude that the [contested mark] was used … in relation to a customisable software application in the field of television and entertainment, which allows streaming access to live channels, and facilitate[s] the retrieval of television programmes through search criteria.

93. The software application, as described in the evidence, involves functionalities related to searching, collecting, indexing, and organising information within, at least, computer networks. Therefore, … the evidence submitted shows that the [contested mark] was used in relation to [the goods in question in Class 9] …’

35      The applicant submits that Baidu Europe did not establish that the contested mark had been used for the goods in question in Class 9. The software application, which merely gives access to fashion-related content, had not been marketed under the contested mark, but under the mark Fashion Television. In those circumstances, the evidence provided by Baidu Europe establishes, at most, use of the contested mark for services in Class 35.

36      EUIPO contends that, in the light of its various functionalities, inter alia searching for and the retrieval of content, the software application constitutes a product in its own right, distinct from the broadcasting services and similar to the goods in question in Class 9. Moreover, that software application was indeed offered to the public under the contested mark, whereas the other marks used indicated the commercial origin of the broadcast content.

37      The applicant and EUIPO thus address three points relating, first, to the name and trade mark under which the software application was placed on the market, second, to the functionalities of that software application and, third, to the provision of services in Class 35.

38      It is first necessary to examine under which name and trade mark the software application was placed on the market.

39      In that regard, the Board of Appeal stated, in essence, that the software application was called ‘Baidu TV’ and, therefore, that it had been used under the contested trade mark (see paragraphs 88 and 92 of the contested decision).

40      However, the evidence provided by Baidu Europe is not sufficient to support that conclusion.

41      First, the printout of the Google Play Store, the printout of the ‘apkgk’ website and Ms C.’s affidavit refer to a software application called not simply ‘Baidu TV’, but ‘Fashion Television by Baidu TV’. The two affidavits also refer to a second software application, called ‘Fashion One by Baidu TV’.

42      It is true that Ms C.’s affidavit seems to refer to a third software application, called ‘Baidu TV’ and subsequently personalised and marketed in the form of the software applications ‘Fashion Television by Baidu TV’ and ‘Fashion One by Baidu TV’. She also states that the title screen and the terms and conditions of use refer to ‘Baidu Europe BV’ as the creator of the software application. However, that affidavit is imprecise and does not expressly state that the software application was used under its original name ‘Baidu TV’. In any event, in so far as it was made by a person connected to Baidu Europe through an employment relationship, such a statement can have only limited probative value and is, on its own, insufficient to establish a fact which is disputed (see, to that effect, judgment of 21 November 2012, *Getty Images* v *OHIM (PHOTOS.COM)*, T‑338/11, not published, EU:T:2012:614, paragraph 51 and the case-law cited).

43      As regards the pictures from the software application, they contain a single piece of information, that the channel ‘Fashion Television’ is ‘available on Baidu TV’.

44      Contrary to EUIPO’s submissions, it is not apparent, clearly and convincingly, from the evidence referred to in paragraphs 41 to 43 above that the words ‘baidu tv’ have been used to indicate the commercial origin of the software application, whereas the terms ‘fashion television’ (or ‘fashion one’) have been used to indicate the commercial origin of the audiovisual content belonging to a third party (Fashion One Television).

45      The information contained in the evidence referred to in paragraphs 41 to 43 above, in particular that showing the software application, is imprecise and does not enable the goods and services in relation to which the terms ‘baidu tv’ and ‘fashion television’ (or ‘fashion one’) were used, respectively, to be reliably identified. Nor does that evidence make it possible to determine whether the terms ‘baidu tv’ designate the commercial origin of the software application (goods in Class 9) or that of other goods or services, such as audiovisual content (services in Class 41) or telecommunications services (services in Class 38), or even to rule out the possibility that, in some cases, the terms ‘baidu tv’ and ‘baidu europe bv’ do not simply designate the company name of the undertaking.

46      Second, it must be noted that other evidence produced by Baidu Europe does not refer to a software application.

47      In particular, the initial invoices only refer to a ‘Baidu TV Channel Package’. Furthermore, it should be noted that, before the Court, EUIPO does not specifically refer to those invoices as evidence capable of establishing use of the contested mark for the goods in question in Class 9.

48      As regards the two additional invoices, they refer only, in respect of the first, to a ‘starter kit’ and, in respect of the second, to ‘access control software’, both referred to as ‘Baidu Access’. The Board of Appeal was therefore right, in paragraph 96 of the contested decision, to disregard those invoices on the ground that they did not contain information as to the nature and purpose of the ‘Baidu Access’ software.

49      Lastly, the credit notes addressed to Baidu Europe by Team Internet concern ‘parking revenue’ and do not mention any software. Moreover, they do not contain any reference to the contested mark, as the Board of Appeal noted in paragraph 96 of the contested decision.

50      In those circumstances, even taken as a whole, the evidence produced by Baidu Europe does not make it possible to establish to the requisite legal standard that the contested mark was used to indicate the commercial origin of the software application itself.

51      Accordingly, without it being necessary to examine what the precise functionalities of the software application were and to determine whether Baidu Europe did not instead offer services in Class 35, it must be concluded that Baidu Europe failed to prove, as it was required to do, use of the contested mark in relation to the goods in question in Class 9.

*The services in question in Class 38*

52      In paragraph 94 of the contested decision, the Board of Appeal found that ‘the streaming access to live channels and facilitation of retrieving television programmes through search criteria in the field of television and entertainment most likely involve[d] broadcasting audiovisual content over the internet’. Consequently, it concluded that the contested mark had been used for the services in Class 38.

53      The applicant maintains that Baidu Europe did not establish that it had broadcast audiovisual content by its own means nor, accordingly, that it had used the contested mark for the services in question in Class 38. The evidence provided by Baidu Europe establishes, at most, use of that mark for audiovisual content licensing services which, at the time, fell within Class 42.

54      EUIPO submits, on the contrary, that through its software application, software technology and data centre, Baidu Europe provided means for accessing audiovisual content and, therefore, broadcasting services, both to users of its software application and to corporate clients (telecommunications companies and TV channels, such as Fuel TV).

55      The applicant and EUIPO thus address two points concerning, first, the broadcasting by the applicant’s own means of audiovisual content and, second, the provision of licensing services. Those two points should be examined in turn.

56      In the first place, it should be borne in mind that, in the eighth edition of the Nice Classification, Class 38 was entitled ‘Telecommunications’.

57      In the light of the description of the services in Class 38 provided in the Explanatory Note to the eighth edition of the Nice Classification, it is apparent that those services must allow at least one person to communicate with another by a sensory means. The diffusion of radio or television programmes is understood as a service which places a person in oral or visual communication with another (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 39).

58      Moreover, in order to demonstrate that it provides radio broadcasting services or television broadcasting services in Class 38, an undertaking must establish that it broadcasts, by its own means, radio or television channels (see, to that effect, judgment of 6 July 2022, *BALLON D’OR*, T‑478/21, not published, EU:T:2022:419, paragraph 41 and the case-law cited).

59      In the present case, the Board of Appeal did not rule on whether Baidu Europe had broadcast audiovisual content by its own means.

60      Before the Court, EUIPO submits, in essence, that Baidu Europe’s software application, software technology and data centre constituted, for the users of that application and for Baidu Europe’s corporate clients, means of accessing audiovisual content.

61      However, EUIPO does not provide any detailed explanation in support of that assertion. Nor does it rely on evidence making it possible to establish (i) the existence and the exact nature of the broadcasting services distinct from the supply of the software application (which constitutes a product) and (ii) Baidu Europe’s own control and use of the means used to operate those services.

62      In that regard, first, the observations, dated 30 June 2021, submitted by Baidu Europe during the administrative procedure and the affidavits, the probative value of which is, however, weak (see paragraph 42 above), contain some information which refers, in very general terms, to the operation of the software application and software technology and mentions the existence of data storage on a database located on Baidu Europe’s servers. Baidu Europe’s observations on the application for revocation also indicate that the ‘Fuel TV’ television channel benefited from software development services and paid charges for the use of its data centre.

63      In addition to the imprecision of that information, it should be noted that it is apparent from the alphabetical list of services included in the eighth edition of the Nice Classification that software design fell within Class 42 and that the collection and storage of data at that time fell within Classes 35 and 39 respectively.

64      Second, it should be noted that the other evidence provided by Baidu Europe does not contain any indication as to the methods and technical means of broadcasting audiovisual content to which the software application gave access.

65      In those circumstances, even taken as a whole, the evidence produced by Baidu Europe does not prove to the requisite legal standard that Baidu Europe actually used its own means to broadcast audiovisual content.

66      In the second place, it should be borne in mind that, in the eighth edition of the Nice Classification, the licensing of intellectual property was in Class 42.

67      In the present case, the applicant submits, in essence, that the services provided and invoiced by Baidu Europe to corporate clients were not telecommunication services in Class 38, but audiovisual content licensing services in Class 42.

68      In that regard, first, the initial invoices mention fees for a ‘Baidu TV Channel Package’ and, sometimes, for the ‘Fashion Television’ channel. Those fees are described at different times as a ‘content fee’, a ‘distribution fee’ and a ‘licence fee’. It must be stated that, although those references are imprecise, or even contradictory, they remain compatible with the classification of audiovisual content licensing services relied on by the applicant.

69      Second, Mr S.’s affidavit states that Baidu Europe was the ‘exclusive European distributor’ used by Fashion One Television. As the applicant submits, that classification as ‘distributor’ could have suggested that Baidu Europe had an intermediary role between, upstream, the undertaking producing the content (Fashion One Television) and, downstream, the undertakings responsible for broadcasting content (telecommunications undertakings and television channels).

70      Third, the explanations and the other evidence produced by Baidu Europe do not make it possible to rule out the grant of licenses. Baidu Europe’s observations on the application for revocation indicate that the ‘Fuel TV’ channel has licensed Baidu Europe’s ‘software technology’. They also state that a copy of a licensing agreement relating to the exclusive distribution of the ‘Fashion Television’ and ‘Fashion One’ channels was provided in earlier proceedings.

71      Fourth, EUIPO responded for the first time at the hearing to the applicant’s argument summarised in paragraph 67 above. It merely stated that the fees invoiced by Baidu Europe remunerated the provision of means of accessing the content broadcast and not the granting of licenses, in so far as Baidu Europe was not the owner of the content broadcast. EUIPO’s argument relating to Baidu Europe’s provision of means of accessing the content broadcast has already been rejected in paragraphs 60 to 65 above and Baidu Europe’s invoicing of content license fees payable to a third party could have been explained if it had had the intermediary role referred to in paragraph 69 above.

72      In those circumstances, the alternative classification proposed by the applicant, namely that of licensing services, is plausible and is therefore capable of calling into question the finding that the contested mark has been used for audiovisual content broadcasting services. It follows that it has not been shown to the requisite legal standard that the fees invoiced by Baidu Europe to corporate clients were for audiovisual content broadcasting services and not other services, such as licensing services.

73      For each of the two reasons referred to in paragraphs 65 and 72 above, it must be concluded that Baidu Europe failed to prove, as it was required to do, use of the contested mark in relation to the services in question in Class 38.

74      Accordingly, in the light of the findings in paragraphs 51 and 73 above and without it being necessary to examine the applicant’s other arguments relating to use as a trade mark, use in the registered form and the length, place and extent of use, it must be held that Baidu Europe has not demonstrated genuine use of the contested mark for the goods and services in question.

75      It follows from all of the foregoing that, without it being necessary to rule on the admissibility, disputed by EUIPO, of Annexes A.11 and A.12 to the application, which do not support the grounds and operative part of the present judgment, the contested decision must be annulled in so far as, in points 1, 2 and 4 of its operative part, it dismissed the applicant’s appeal (Case R 391/2023-5), partially upheld Baidu Europe’s appeal (Case R 373/2023‑5) and ‘allow[ed]’ the contested mark to stay on the register for the goods and services in question.

76      For the same reasons and by the exercise of the power to alter decisions, it is also necessary (i) to annul the decision of the Cancellation Division, in so far as, in paragraph 3 thereof, it dismissed the application for revocation of the contested mark in respect of the services in question in Class 38, and (ii) to dismiss Baidu Europe’s appeal (Case R 373/2023-5), in so far as it concerned the goods in question in Class 9.

**Costs**

77      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 EUIPO has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Seventh Chamber),

hereby:

1.      **Annuls points 1, 2 and 4 of the operative part of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 January 2024 (Joined Cases R 373/2023-5 and R 391/2023-5);**

2.      **Annuls paragraph 3 of Decision C 48 910 of the Cancellation Division of 15 December 2022;**

3.      **Dismisses Baidu Europe BV’s appeal (Case R 373/2023-5) in so far as it concerned ‘computer software used for searching, collecting, indexing and organising information within individual work stations, PCs or computer networks; computer software for use in creating indexes of information, indexes of websites or indexes of other information sources’ in Class 9;**

4.      **Orders EUIPO to pay the costs.**

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| Kowalik-Bańczyk | Hesse | Dimitrakopoulos |

Delivered in open court in Luxembourg on 26 March 2025.

|  |  |  |
| --- | --- | --- |
| V. Di Bucci |  | S. Papasavvas |

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

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

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