CELEX: 62015TJ0287
Language: en
Date: 2017-06-28 00:00:00
Title: Judgment of the General Court (Sixth Chamber) of 28 June 2017.#Tayto Group Ltd v European Union Intellectual Property Office.#EU trade mark — Revocation proceedings — EU figurative mark real — Genuine use — Form differing in elements which do not alter the distinctive character — Point (a) of the second subparagraph of Article 15(1) of Regulation (EC) No 207/2009 — Use of the mark by a third party — Article 15(2) of Regulation No 207/2009 — Proof of genuine use — Article 15(1) and Article 51(1)(a) of Regulation No 207/2009 — Obligation to state reasons.#Case T-287/15.

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
28 June 2017 (*)
(EU trade mark — Revocation proceedings — EU figurative mark real — Genuine use — Form differing in elements which do not alter the distinctive character — Point (a) of the second subparagraph of Article 15(1) of Regulation (EC) No 207/2009 — Use of the mark by a third party — Article 15(2) of Regulation No 207/2009 — Proof of genuine use — Article 15(1) and Article 51(1)(a) of Regulation No 207/2009 — Obligation to state reasons)
In Case T‑287/15,

Tayto Group Ltd, established in Corby (United Kingdom), represented by G. Würtenberger and R. Kunze, lawyers,
applicant,
v

European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

MIP Metro Group Intellectual Property GmbH & Co. KG, established in Düsseldorf (Germany), represented by J.-C. Plate and R. Kaase, lawyers,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 16 March 2015 (Case R 2285/2013-4), relating to revocation proceedings between Tayto Group and MIP Metro Group Intellectual Property,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: J. Weychert, Administrator,
having regard to the application lodged at the Court Registry on 1 June 2015,
having regard to the response of EUIPO lodged at the Court Registry on 9 September 2015,
having regard to the response of the intervener lodged at the Court Registry on 28 September 2015,
having regard to the reassignment of the case to the Sixth Chamber and to a new Judge-Rapporteur, 
further to the hearing on 6 March 2017,
gives the following

Judgment

 Background to the dispute

1        On 1 April 1996, the intervener, MIP Metro Group Intellectual Property GmbH & Co. KG, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1)).

2        Registration as a mark was sought for the following figurative sign in blue and red: 

3        The goods in respect of which registration was sought are in Classes 3, 8, 16, 18, 20, 21, 22, 24, 25, 28, 29, 30, 31 and 32 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, for each of those classes, to the following description: 
–        Class 3: ‘Washing and bleaching preparations; degreasers and abrasives; soaps; perfumery; essential oils, cosmetics, hair lotions; dentrifices’;
–        Class 8: ‘Hand operated tools and equipment, cutlery, table forks and spoons; arms (side-); razors’;
–        Class 16: ‘Paper, cardboard and goods made from these materials, as far as contained in Class 16; printed matter; bookbinding material; photographs; stationery; adhesives [glues] for stationery or household purposes; artists’ materials; paintbrushes; typewriters and office requisites (except furniture); teaching materials (except apparatus); packaging material of plastics (as far as contained in Class 16)’;
–        Class 18: ‘Leather and imitation leather as well as goods made from these (as far as contained in Class 18); pelts and furs; travelling trunks and suitcases; umbrellas, parasols and walking-sticks; whips, harness and saddlery’;
–        Class 20: ‘Furniture, mirrors, picture frames; goods, not included in other classes, of wood, cork, cane, rushes, wicker, horn, bone, ivory, whalebone, tortoiseshell, amber, mother-of-pearl, meerschaum and substitutes for these or of plastics’;
–        Class 21: ‘Equipment and containers for household and kitchen (not of precious metal or coated therewith) as far [as] contained in Class 21; combs and sponges; brushes (except paintbrushes); material for brush-making; articles for cleaning purposes; steel wool; glass, unworked or semi-worked (except building glass); glassware, porcelain ware and crockery, as far as contained in Class 21’;
–        Class 22: ‘Ropes, string, nets, tents, tarpaulins, sails, sacks (as far as contained in Class 22), stuffing materials (except rubber or plastic); raw fibrous textile materials’;
–        Class 24: ‘Woven material and textile goods, as far as included in Class 24; bed blankets and table cloths’;
–        Class 25: ‘Clothing, footwear, headgear’;
–        Class 28: ‘Games, toys, gymnastic and sporting articles, as far as included in Class 24’;
–        Class 29: ‘Meat, fish, poultry and game, meat extracts; preserved, dried and cooked fruit and vegetables; meat, fish, fruit and vegetable jellies; jams, eggs, milk and milk products, namely butter, cheese, cream, yoghurt, quark, milk powder for food; tinned meat, fish, fruit and vegetables’;
–        Class 30: ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and cereal preparations (except animal foodstuffs); bread, pastries and cakes, edible ice; honey, golden syrup; yeast, baking powder; table salt; mustard; vinegar, sauces (except salad dressings); salad dressings; spices; ice for refreshment’; 
–        Class 31: ‘Agricultural, horticultural and forestry products, namely grains [seeds], and other propagation material, unprocessed cereals, eggs for hatching, unprocessed timber; live animals; fresh fruit and vegetables, seeds, live plants and natural flowers; animal foodstuffs, malt’;
–        Class 32: ‘Beers; mineral waters and aerated waters and other non-alcoholic beverages; fruit drinks and fruit juices; syrups and other preparations for the preparation of beverages’.

4        The mark was registered on 11 May 2006 under the number 38968. 

5        On 19 August 2011, the applicant, Tayto Group Ltd, filed an application for revocation, pursuant to Article 51(1)(a) of Regulation No 207/2009, in respect of the mark at issue, in which it claimed that that trade mark had not been put to genuine use within a continuous period of five years.

6        On 29 October 2013, the Cancellation Division granted the application for revocation, finding that the evidence adduced by the intervener was insufficient to demonstrate use of the mark during the relevant period. 

7        On 20 November 2013, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Cancellation Division’s decision.

8        By decision of 16 March 2015 (‘the contested decision’), the Fourth Board of Appeal of EUIPO annulled the Cancellation Division’s decision to the extent that it had upheld the application for revocation in respect of some of the goods in Classes 3, 16, 20, 21, 24, 29, 30, 31 and 32, set out in paragraph 3 above.

9        In particular, the Board of Appeal took the view that the intervener had proved genuine use in respect of the goods in the classes cited in paragraph 8 above.
 Forms of order sought

10      The applicant claims that the Court should:
–        annul the contested decision in part;
–        order EUIPO to pay the costs.

11      EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
 Law

12      In support of its action, the applicant puts forward six pleas in law, alleging, first, infringement of Article 15(1) of Regulation No 207/2009; second, infringement of Article 15(2) of Regulation No 207/2009; third, infringement of Articles 64 and 76 of Regulation No 207/2009; fourth, infringement of Article 51(1)(a) of Regulation No 207/2009; fifth, infringement of Article 75 of Regulation No 207/2009; and, sixth, a misuse of power and an infringement of general principles of law.

13      EUIPO and the intervener dispute the applicant’s arguments.

14      The Court considers it appropriate to examine the various pleas in the order in which they have been put forward, subject to examination of the fourth plea after the first plea.
 The first plea, alleging infringement of Article 15(1) of Regulation No 207/2009

15      This plea comprises two parts, alleging, first, infringement of the first subparagraph of Article 15(1) of Regulation No 207/2009 and, second, infringement of point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009.

16      It is appropriate to examine the second part first.
 The second part of the first plea, alleging infringement of point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009

17      First, the applicant observes that all of the individual elements of the mark at issue are devoid of any distinctive character and that only the combination of those elements enabled that mark to be registered. According to the applicant that conclusion is borne out by the decisions of two national offices which refused to register the element ‘real’ as a trade mark on the ground that it was descriptive. 

18      Second, the applicant claims that the mark at issue was used in a form which substantially alters its distinctive character, which should have precluded the Board of Appeal from finding that it had been put to genuine use.

19      EUIPO and the intervener dispute the applicant’s arguments.

20      In that regard, it must be borne in mind that the first subparagraph of Article 15(1) of Regulation No 207/2009 provides that if, within a period of five years following registration, the proprietor has not put the EU trade mark to genuine use in the European Union in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the EU trade mark is to be subject to the sanctions provided for in that regulation, unless there are proper reasons for non-use.

21      Under point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009, use of the EU trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered constitutes use of that mark.

22      It must also be pointed out that it follows directly from the wording of point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 that the use of the trade mark in a form which differs from the form in which it was registered is regarded as use for the purposes of the first subparagraph of that article to the extent that the distinctive character of the mark in the form in which it was registered is not altered (judgment of 18 July 2013, Specsavers International Healthcare and Others, C‑252/12, EU:C:2013:497, paragraph 21).

23      Furthermore, it must be stated that point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 relates to a situation where a registered national or EU trade mark is used in trade in a form which is slightly different from the form in which registration was effected. The purpose of that provision, which avoids imposing strict conformity between the form of the trade mark as used and the form in which the mark was registered, is to allow its proprietor, in the commercial exploitation of the sign, to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the form of the sign used in trade differs from the form in which that sign 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 (judgments of 23 February 2006, Il Ponte Finanziaria v OHIM — Marine Enterprise Projects (BAINBRIDGE), T‑194/03, EU:T:2006:65, paragraph 50; of 10 June 2010, Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT), T‑482/08, not published, EU:T:2010:229, paragraph 30, and of 5 December 2013, Olive Line International v OHIM — Carapelli Firenze (Maestro de Oliva), T‑4/12, not published, EU:T:2013:628, paragraph 23).

24      Consequently, a finding that the distinctive character of the registered trade mark has been altered requires an assessment of the distinctive and dominant character of the elements which have been added, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the various elements within the arrangement of the mark (judgments of 5 December 2013, Maestro de Oliva, T‑4/12, not published, EU:T:2013:628, paragraph 24, and of 12 March 2014, Borrajo Canelo v OHIM — Tecnoazúcar (PALMA MULATA), T‑381/12, not published, EU:T:2014:119, paragraph 30).

25      Lastly, in order for point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 to apply, the additions to the registered mark must not alter the distinctive character of the mark in the form in which it was registered, in particular because of their ancillary position in the sign or their weak distinctive character (judgment of 21 June 2012, Fruit of the Loom v OHIM — Blueshore Management (FRUIT), T‑514/10, not published, EU:T:2012:316, paragraph 38).

26      The Court will examine, in the light of those considerations, whether the Board of Appeal was right in finding, in paragraph 30 of the contested decision, that the mark at issue had been used in a form differing only in elements which did not alter its distinctive character.

27      In the present case, it must be borne in mind that, in its review of the lawfulness of the contested decision, it is not for the Court itself to assess the distinctive character of the mark at issue, but to ensure that the Board of Appeal correctly assessed the effect of the additions to that mark. 

28      Furthermore, the actual subject matter of the present action concerns revocation proceedings and not the registration procedure in respect of the mark at issue or invalidity proceedings in respect of that mark. Consequently, what is involved here by no means concerns establishing or even calling into question the distinctive character of the mark at issue, since that mark is a registered trade mark the distinctive character of which was already analysed during the registration procedure and can be challenged only by means of invalidity proceedings. It follows that the applicant’s argument that all of the individual elements of the mark at issue are devoid of any distinctive character and that only the combination of those elements enabled that mark to be registered is ineffective.

29      In the context of the present action, it must be assessed whether the elements which have been added to the mark at issue have a distinctive and dominant character, on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the various elements within the arrangement of the mark. The sole aim of that assessment is to ascertain whether the distinctive character of the mark at issue has been altered (see, to that effect, judgments of 10 June 2010, ATLAS TRANSPORT, T‑482/08, not published, EU:T:2010:229, paragraph 31 and the case-law cited; of 5 December 2013, Maestro de Oliva, T‑4/12, not published, EU:T:2013:628, paragraph 24, and of 12 March 2014, PALMA MULATA, T‑381/12, not published, EU:T:2014:119, paragraph 30). 

30      It must be pointed out that the Board of Appeal was, moreover, right in not re-examining whether the mark at issue had distinctive character. In order to ascertain whether its use had altered its distinctive character, the Board of Appeal compared the mark at issue exclusively with the sign reproduced below:

31      In that regard, the references which the Board of Appeal made in the contested decision to the distinctive character of the term ‘real’ for the goods concerned and to its meaning in English, German and in Portuguese were solely a reminder of the distinctive character of the mark at issue, which made it possible to assess whether that distinctive character had been altered by the addition of the word ‘quality’ and by the graphic stylisation in the form of a label. 

32      Furthermore, the Board of Appeal did not have to take account of the two decisions of national offices produced by the applicant, for reasons similar to those set out in the preceding paragraph and on the ground that, as the EU trade mark regime is, in any event, an autonomous system with its own set of objectives and rules peculiar to it, it applies independently of any national system (see, to that effect, judgment of 22 May 2008, Radio Regenbogen Hörfunk in Baden v OHIM (RadioCom), T‑254/06, not published, EU:T:2008:165, paragraph 55 and the case-law cited). 

33      As regards the element ‘quality’ and the stylisation in the form of a label, the Board of Appeal correctly found that, in essence, the addition of those elements was not capable of altering the distinctive character of the mark in the form in which it had been registered. 

34      It must be pointed out that, in the mark used, the mark at issue, which is a figurative mark consisting of the word element ‘real’, represented in red, and the element ‘,-’, represented in blue, constitutes the dominant part of the sign as used. The element ‘quality’, which is situated below the mark at issue, mainly under the element ‘real’, and which is written in capital letters that are smaller than the letters in the word element ‘real’ and is in blue, has a merely laudatory character and is weakly distinctive, as the Board of Appeal rightly pointed out (see, to that effect, judgment of 24 February 2016, Tayto Group v OHIM — MIP Metro (REAL HAND COOKED), T‑816/14, not published, EU:T:2016:93, paragraph 58). Furthermore, the addition, in the mark used, of the stylisation in the form of a label, within which both the elements in the mark at issue and the element ‘quality’ are placed, is purely ornamental, since it is situated in the background of the mark at issue and is therefore in an ancillary position, which does not confer on it any distinctive character of its own.

35      Consequently, contrary to what the applicant claims, the Board of Appeal did not make any error in finding that the addition to the mark at issue of the elements referred to in paragraph 34 above was negligible and was right in finding that there was no alteration of the distinctive character of that mark.

36      In any event, contrary to what the applicant maintained in the application and at the hearing, the mark at issue in no way constitutes a ‘coloured word mark’ or a ‘word mark printed in colour’, but a figurative mark in red and blue including a word element, like the mark used. There can therefore be no question of any shift in category between the two marks.

37      The second part of the first plea must therefore be rejected as unfounded.
 The first part of the first plea, alleging infringement of the first subparagraph of Article 15(1) of Regulation No 207/2009

38      The applicant takes the view that the Board of Appeal could not conclude that, notwithstanding that the mark at issue was possibly being used as a company name and as a logo for a company, it had been used as a trade mark for all of the goods in question in the present case. 

39      EUIPO and the intervener dispute the applicant’s arguments.

40      In that regard, it must be stated that the rationale for the requirement that a mark must have been put to genuine use in order to be protected under EU law is that EUIPO’s register cannot be regarded as a strategic and static depository granting an inactive proprietor a legal monopoly for an unlimited period. On the contrary, that register must faithfully reflect what companies actually use on the market to distinguish their goods and services in economic life (see judgment of 15 July 2015, Deutsche Rockwool Mineralwoll v OHIM — Recticel (λ), T‑215/13, not published, EU:T:2015:518, paragraph 20 and the case-law cited).

41      Although it is true that a company name or a shop name is limited to identifying a company, it is quite possible that it may also constitute a trade mark, if it is used as such (see, by analogy, judgment of 11 September 2007, Céline, C‑17/06, EU:C:2007:497, paragraph 21). 

42      In the present case, the Board of Appeal was right in finding, in the light of the various items of evidence which had been sent to it, that the mark at issue had not been used solely as a company name. In the first place, Annexes 4 to 12, which the intervener provided in support of its written pleadings before the Cancellation Division, contain examples of packaging the labels of which include both the mark at issue and the mark used, for various goods in Classes 3, 16, 20, 21, 24, 29, 30, 31 and 32. In the second place, Annexes 15 to 18 to the intervener’s written pleadings before the Cancellation Division reproduce advertising leaflets relating to a number of the intervener’s goods, which include representations of the packaging of those goods displaying the mark used. In the third place, Annex 14 to the intervener’s written pleadings before the Cancellation Division comprises various screenshots from websites showing the mark used and various goods the packaging of which also includes the mark used.

43      The first part of the applicant’s first plea must therefore be rejected as unfounded.

44      In the light of all of the foregoing, the first plea must be rejected in its entirety.
 The fourth plea, alleging infringement of Article 51(1)(a) of Regulation No 207/2009

45      By this plea, the applicant, referring to the requirements of Article 51(1)(a) of Regulation No 207/2009, submits that the Board of Appeal would have come to the conclusion that genuine use of the mark at issue had not been proved if it had acted in accordance with the pertinent provisions of Regulation No 207/2009.

46      EUIPO and the intervener dispute the applicant’s arguments. EUIPO submits that the fourth plea must be declared inadmissible or, in the alternative, unfounded, whereas the intervener takes the view that it is unfounded.

47      At the hearing, the applicant stated, in reply to a question put by the Court, that the fourth plea was to be understood not as an independent plea, but as being linked to the first plea.

48      Accordingly, although the wording of the present plea is laconic, it must be held that, by that plea, the applicant submits that the Board of Appeal should have declared the intervener’s rights to be revoked if after assessing the first plea, relating to infringement of Article 15(1) of Regulation No 207/2009, it had found that that plea had to be upheld.

49      In that regard, as was held when examining the first plea, first, the mark at issue was used in a form differing only in elements which do not alter its distinctive character and, second, the mark at issue had not been used solely as a company name, but also as a trade mark.

50      It follows that the Board of Appeal correctly applied Article 15(1) of Regulation No 207/2009 when it found that the intervener had proved genuine use of its mark. Accordingly, the Board of Appeal was right to reject the applicant’s application for revocation, which was exclusively linked to the lack of proof of genuine use of that mark. The present plea must therefore be rejected as unfounded.
 The second plea, alleging infringement of Article 15(2) of Regulation No 207/2009

51      The applicant submits that genuine use of the mark at issue can be proved only by ‘solid and objective’ evidence, which was not the case before the Board of Appeal, since the Board of Appeal simply assumed that there was a connection between the intervener and the company real,- SB-Warenhaus which has used the mark at issue.

52      EUIPO and the intervener dispute the applicant’s arguments.

53      Article 15(2) of Regulation No 207/2009 provides that use of the EU trade mark with the consent of the proprietor is to be deemed to constitute use by the proprietor.

54      It follows that it is for the proprietor of the trade mark to furnish proof that he consented to the use of that trade mark by a third party (see judgment of 13 January 2011, Park v OHIM — Bae (PINE TREE), T‑28/09, not published, EU:T:2011:7, paragraph 60 and the case-law cited). 

55      It must be stated that, in view of the significance of its effect of extinguishing the exclusive right of the proprietor of an EU trade mark to use that mark, the consent must be expressed in such a way that an intention to renounce that right is unequivocally demonstrated. Such an intention generally follows from an express giving of consent. However, it is conceivable that consent may, in some cases, be inferred from circumstances and facts prior to, simultaneous with or subsequent to the use of the mark at issue by a third party which also unequivocally demonstrate that the proprietor has renounced his right (see judgment of 13 January 2011, PINE TREE, T‑28/09, not published, EU:T:2011:7, paragraph 61 and the case-law cited).

56      Furthermore, it must be borne in mind that, where the proprietor of an EU trade mark maintains that use of that mark by a third party constitutes genuine use for the purposes of Article 15 of Regulation No 207/2009, he is claiming implicitly that he consented to that use (see, by analogy, judgment of 8 July 2004, Sunrider v OHIM — Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 24).

57      It is necessary to examine, in the light of those considerations, whether the Board of Appeal was right in finding that the intervener’s consent to a third party’s use of the mark at issue had been proved in the present case.

58      The intervener provided the Board of Appeal with various documents in order to show that the mark at issue had been used by a third party. Accordingly, it produced an affidavit by the manager of the marketing division of the company real,- SB-Warenhaus, which is part of the same group as the intervener itself, together with representations and descriptions of goods marketed under the mark used.

59      As the Board of Appeal correctly pointed out, the vast majority of the relevant evidence refers to Germany, which is considered to constitute a substantial part of the European Union, and to the relevant period, namely that from 2006 to 2011.

60      Since the intervener has demonstrated to the requisite legal standard that there was use of the mark at issue, therefore proving that that mark was used by a third party, it must be accepted that that mark was used with the intervener’s consent. 

61      It follows from this that the second plea must be rejected as unfounded.
 The third plea, alleging infringement of Articles 64 and 76 of Regulation No 207/2009

62      By its third plea, the applicant submits in essence that, in the light of the existence of a continuity of functions between the Cancellation Division and the Board of Appeal, the Board of Appeal was required to base its decision on all the matters of fact and of law which the parties had introduced both before the Cancellation Division and before the Board of Appeal. In particular, the applicant complains that the Board of Appeal did not examine all the evidence provided and did not notice that some documents did not fall within the relevant period.

63      EUIPO and the intervener dispute the applicant’s arguments.

64      Article 64(1) of Regulation No 207/2009 provides that, following the examination as to the merits of the appeal, the Board of Appeal is to decide on the appeal and may, inter alia, exercise any power within the competence of the department which was responsible for the decision appealed before it.

65      The consequence of the principle of continuity of functions between the various bodies of EUIPO is that, in matters within the scope of Article 76 of Regulation No 207/2009, the Board of Appeal is required to base its decision on all the matters of fact and of law contained in the decision contested before it which the party, or parties, concerned introduced either in the proceedings before the department which heard the application at first instance or, subject only to Article 76(2), in the appeal (judgment of 11 September 2014, Continental Wind Partners v OHIM — Continental Reifen Deutschland (CONTINENTAL WIND PARTNERS), T‑185/13, not published, EU:T:2014:769, paragraph 33).

66      In the present case, the Board of Appeal referred, in paragraph 21 of the contested decision, to the evidence which had been submitted by the intervener, namely an affidavit together with various annexes, referred to in paragraph 3 of that decision. As the Board of Appeal pointed out, in that affidavit, the manager of the marketing division of the company real,- SB-Warenhaus provided, in respect of each class of goods covered, data relating to the type of goods sold, the sales period and the turnover generated. The turnover in respect of the various goods, ranging from several hundred thousand euros to several million euros was, moreover, summarised in Annex 2 to the aforementioned affidavit. Furthermore, contrary to what the applicant alleges, the Board of Appeal carried out an analysis of that evidence in paragraphs 24 to 31 of the contested decision and took that evidence as its basis when examining the nature of the genuine use of the mark at issue. 

67      The Board of Appeal was, moreover, right in stating in paragraph 32 of the contested decision that the extent of use of the mark at issue had been confirmed by the overview of turnover figures, broken down in respect of the various goods during the relevant period, as well as by the affidavit. It also meticulously examined, in paragraphs 33 to 43 of the contested decision, all the documents provided in respect of each product in the various classes in order to ascertain whether there had been use of the mark at issue in connection with each of those goods. As regards the goods in Classes 8, 18, 22, 25 and 28, the Board of Appeal pointed out that genuine use of the mark at issue had not been proved. As regards the goods in the other classes, it carried out an analysis of each item of evidence provided, on a class by class basis, in order to identify the goods in connection with which use had been proved and those in connection with which use had not been proved. It was therefore right in finding that the evidence provided in Annexes 1, 2 and 4 to 12 proved use of the mark at issue in connection with an important part of the goods, subject to certain qualifications set out in paragraphs 35 to 43 of the contested decision. 

68      Furthermore, the argument that the Board of Appeal did not notice that some documents did not fall within the relevant period cannot succeed, since the appeal brought before it was upheld only in part, which again shows, to the requisite legal standard, that it carried out an appropriate assessment of the evidence in its possession. 

69      It follows that the third plea must be declared unfounded.
 The fifth plea, alleging infringement of Article 75 of Regulation No 207/2009

70      By its fifth plea, the applicant submits that the Board of Appeal failed to give any or adequate reasons or otherwise provided flawed reasons for its findings in the contested decision, since it did not examine all the evidence provided.

71      EUIPO and the intervener dispute the applicant’s arguments.

72      It must be borne in mind that 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, by analogy, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 372; of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 46, and of 9 July 2008, Reber v OHIM — Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 55).

73      Furthermore, in the first place, the applicant submits that, since the Board of Appeal did not carry out a detailed examination of the documents which the intervener provided before it, it did not properly reason its findings in the contested decision. In that regard, it is clear from the findings set out in paragraphs 66 to 68 above that the Board of Appeal found that there had been genuine use of the mark at issue after analysing the evidence which had been submitted to it, with the result that the applicant’s argument, which is based on an incorrect premiss, must, in any event, be rejected. 

74      In the second place, the applicant submits that the Board of Appeal failed to give any reasons as to why it chose to ignore the decisions of the national offices which took the view that the element ‘real’ was descriptive and not registrable. It must be pointed out that the Court has already replied to that argument in paragraphs 31 and 32 above, by stating that the Board of Appeal does not have to take those decisions into account. Consequently, the argument put forward by the applicant must be declared ineffective. 

75      It follows that the fifth plea must be declared unfounded.
 The sixth plea, alleging a misuse of power and an infringement of general principles of law

76      The applicant submits that the Board of Appeal, by refusing to grant it an extension of the time limit set for responding to the appeal before it, in accordance with Rule 6.2.1 in Part C of EUIPO’s Manual and Rule 71(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1), exceeded its powers, which constitutes a misuse of power and infringes ‘acknowledged principles of law’, since there was, in the applicant’s view, no apparent urgency in the matter which would have precluded the granting of its request.

77      EUIPO and the intervener dispute the applicant’s arguments. 

78      It must be pointed out at the outset that, in support of the present plea, the applicant puts forward, in essence, three complaints, concerning, first, an alleged misuse of power, second, infringement of Rule 6.2.1 in Section 1 of Part C of the EUIPO Guidelines for examination of European Union trade marks and the second sentence of Rule 71(1) of Regulation No 2868/95 and, third, an infringement of general principles of law.

79      In the first place, as regards a possible misuse of power, it must be borne in mind that a decision may amount to a misuse of power only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (judgments of 24 April 1996, Industrias Pesqueras Campos and Others v Commission, T‑551/93 and T‑231/94 to T‑234/94, EU:T:1996:54, paragraph 168; of 19 September 2001, Henkel v OHIM (Depiction of a detergent product), T‑30/00, EU:T:2001:223, paragraph 70, and of 12 December 2002, eCopy v OHIM (ECOPY), T‑247/01, EU:T:2002:319, paragraph 22). The applicant does not, however, put forward any evidence showing that, by refusing to grant it an extension of the time limit, the Board of Appeal used its powers for a purpose other than that for which they were conferred on it. 

80      In the second place, as regards infringement of Rule 6.2.1 in Section 1 of Part C of the EUIPO Guidelines for examination of European Union trade marks and of the second sentence of Rule 71(1) of Regulation No 2868/95, it must be borne in mind that the latter rule states that EUIPO may, when this is appropriate under the circumstances, grant an extension of a period specified if such extension is requested by the party concerned and the request is submitted before the original period expired. It follows that the extension of a period specified is not automatic: in each case, it depends on circumstances which are specific to the individual case and which make it appropriate to grant an extension, as well as on the submission of a request for an extension. That holds especially true in relation to inter partes proceedings, in which an advantage granted to one of the parties constitutes a disadvantage for the other. In such cases, EUIPO must therefore ensure that it remains impartial with regard to the parties (judgment of 12 December 2007, K & L Ruppert Stiftung v OHIM — Lopes de Almeida Cunha, Couto Simões, Lima Jatobá(CORPO livre), T‑86/05, EU:T:2007:379, paragraph 21).

81      It is for the party requesting an extension to plead the circumstances making it appropriate, since it is in the interests of that party that the extension is sought and may be granted.

82      In the present case, since the applicant did not provide any justification for its request for an extension of the time limit, merely stating that there was no apparent urgency in the matter which would have precluded the granting of its request, the Board of Appeal cannot be criticised for refusing to grant it an extension of the time limit for its reply. 

83      Lastly, and in so far as the applicant submits that it is constant practice on the part of EUIPO to grant an initial extension of a time limit automatically, it is sufficient to point out that it has not produced any evidence to show the existence of such a practice (see, to that effect, judgment of 12 December 2007, CORPO livre, T‑86/05, EU:T:2007:379, paragraph 24).

84      In the third place, as regards the alleged infringement of general principles of law, it must be pointed out, first, that the applicant has not stated which ones it was relying on in particular and, second, that, at the hearing, it submitted that this was not necessary for the Court to be able to rule on that argument.

85      In that regard, it is important to bear in mind that all applications must contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. Irrespective of any question of terminology, that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible in the light of the aforementioned principles, that the basic legal and factual particulars on which it is based be indicated, at least in summary form, coherently and intelligibly in the application itself (see order of 19 September 2016, Gregis v EUIPO — DM9 Automobili (ATS), T‑5/16, not published, EU:T:2016:552, paragraph 18 and the case-law cited).

86      Consequently, in accordance with the principle referred to in paragraph 85 above, the complaint relating to an infringement of general principles of law must be declared inadmissible.

87      The sixth plea must therefore be rejected.

88      It follows from all of the foregoing that the action must be dismissed in its entirety.
 Costs

89      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener. 
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;

2.      Orders Tayto Group Ltd to pay the costs.

Berardis 

Papasavvas

Spineanu-Matei

Delivered in open court in Luxembourg on 28 June 2017.

E. Coulon
 
G. Berardis

Registrar
 
President

*      Language of the case: English.