Haddad v EUIPO - Celebi (CELEBRITI) (EU trade mark - Judgment) [2024] EUECJ T-538/23 (04 December 2024)

Judgment By his action under Article 263 TFEU, the applicant, Mr Lucien Haddad, seeks annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 June 2023 (Case R 2221/2022‑5) (‘the contested decision’). Background to the dispute On 19 June 2016, the intervener, Ms Zeynep Celebi, obtained registration of an EU trade mark, pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)), for the following figurative sign: The goods in respect of which the mark was registered are in Classes 3, 18 and 25 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: ‘Perfumery, deodorants, perfumed soaps’; – Class 18: ‘Luggage boxes, suitcases, in particular travelling bags, messenger bags, weekend bags, clothing bags, duffel bags, duffel bags with wheels, shopping bags, wheeled shopping bags, vanity cases, not fitted, back packs (rucksacks), satchels, gym bags, attaché-cases, shoulder-bags, briefcases, pilot cases, key bags, coin holders, credit-card cases, wallets, purses, billfold wallets’; – Class 25: ‘Clothing, in particular outerclothing; shoes; headgear; leather clothing and leather belts’. On 9 September 2021, the applicant filed an application for revocation of the trade mark referred to in paragraph 2 above, on the basis of Article 58(1)(a) of Regulation 2017/1001, on the ground that the trade mark had not been put to genuine use for the goods in respect of which it had been registered for a continuous period of five years. On 18 November 2021, the intervener produced before the Cancellation Division evidence intended to prove use of the contested mark. By decision of 15 September 2022, the Cancellation Division granted the application for revocation and ordered that the contested mark be revoked for all of the goods referred to in paragraph 3 above from 9 September 2021. On 15 November 2022, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division, claiming that that decision should be annulled in part, in so far as the Cancellation Division had declared that the contested mark was revoked for the goods in Class 25 covered by that mark. By the contested decision, the Board of Appeal annulled in part the decision of the Cancellation Division in so far as that division had declared that the contested mark was revoked for ‘clothing, namely T-shirts, sweatshirts and scarves’ in Class 25 (‘the goods in question’) and dismissed the appeal as to the remainder. Forms of order sought The applicant claims that the Court should: – annul the contested decision; – order EUIPO and the intervener to pay the costs, including those which he had incurred in the proceedings before EUIPO. EUIPO contends that the Court should: – dismiss the action; – order the applicant to pay the costs in the event that a hearing is convened. The intervener contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law The continuing interest in bringing proceedings At the hearing and in the letter lodged at the Registry of the General Court on 22 July 2024, EUIPO informed the Court that the registration of the contested mark had expired with effect from 10 January 2024, pursuant to Article 53(8) of Regulation 2017/1001, as it had not been renewed. In their oral and written observations, EUIPO and the intervener claimed, in essence, that that fact meant that the applicant no longer had an interest in continuing the present proceedings. In his observations of 29 July 2024, the applicant stated that he considered that he retained an interest in bringing proceedings in order for the revocation of the contested mark to be declared as from 9 September 2021, the date on which he had submitted his application for revocation, to ensure that, as regards the period between that date and the date of expiry of the registration of the contested mark, the use of a sign similar to that mark would not be considered to constitute an infringement. In that regard, it should be borne in mind that, according to settled case-law, the existence of an interest in bringing proceedings requires that the annulment of the contested act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission , C‑33/14 P, EU:C:2015:609 , paragraph 55 and the case-law cited; judgment of 20 June 2024, EUIPO v Indo European Foods , C‑801/21 P, EU:C:2024:528 , paragraph 80). The question of whether, as regards a decision rejecting in part an application for revocation, the person who has filed such an application is likely to derive an advantage from an action brought before the Court seeking annulment of that decision must be assessed in the light of the specific circumstances, in view of all the consequences that may follow from a possible finding of unlawfulness vitiating that decision and in view of the nature of the damage allegedly suffered (see, by analogy, judgment of 20 June 2024, EUIPO v Indo European Foods , C‑801/21 P, EU:C:2024:528 , paragraph 81 and the case-law cited). In the present case, it should be noted that, pursuant to Article 62(1) of Regulation 2017/1001, an EU trade mark is to be deemed not to have had, as from the date of the application for revocation or, at the request of a party, an earlier date, the effects specified in that regulation, to the extent that the rights of the proprietor have been revoked. It follows that the effects of the expiry of the registration of a trade mark are different from those of its revocation, in so far as, in the former case, the mark ceases to produce effects on the date of expiry of its registration, while, in the latter case, it ceases to produce its effects from a date earlier than the date of expiry. The revocation of the contested mark following the annulment of the contested decision is therefore capable of having legal consequences of such a kind as to procure an advantage to the applicant in respect of the period before the expiry of the registration of the contested mark. The applicant therefore retains an interest in bringing proceedings against the decision rejecting, including in part, his or her application for revocation, notwithstanding that the registration of the contested mark has expired (see, to that effect and by analogy, judgments of 24 March 2011, Ferrero v OHIM , C‑552/09 P, EU:C:2011:177 , paragraph 43, and of 2 June 2021, Style & Taste v EUIPO - The Polo/Lauren Company (Representation of a polo player) , T‑169/19, EU:T:2021:318 , paragraph 18). Consequently, and contrary to what EUIPO, in essence, alleges, neither the fact that the registration of the contested mark expired during the present proceedings nor the absence of pending infringement proceedings or other disputes involving the contested mark deprives the applicant of an interest in securing the annulment of the contested decision. In addition, in answer to EUIPO’s observations on the latter point, it should also be borne in mind that the grounds for revocation aim to protect the public interest underlying them, which explains why Article 63(1)(a) of Regulation 2017/1001 does not require the applicant for revocation to show an interest in bringing proceedings (see judgment of 16 November 2017, Carrera Brands v EUIPO - Autec (Carrera) , T‑419/16, not published, EU:T:2017:812 , paragraph 33 and the case-law cited). Consequently, contrary to what EUIPO maintains, in essence, the applicant for revocation is not required to demonstrate his or her continuing interest in the annulment of the decision rejecting his or her application for revocation by the existence of a ‘real, direct and present conflict [between the contested mark] [and] a right owned by him [or her]’ or of pending infringement proceedings involving the contested mark. It must therefore be held that the expiry of the registration of the contested mark during the present proceedings does not negate the applicant’s interest in obtaining the annulment of the contested decision. Su bstance The applicant puts forward a single plea in law alleging infringement of Article 58(1)(a) of Regulation 2017/1001. He maintains that, contrary to the Board of Appeal’s conclusion, the evidence submitted by the intervener during the administrative proceedings does not establish, within the meaning of that provision, that the contested mark was put to genuine use during the relevant period for all of the goods for which it had been registered, including for ‘clothing, namely T-shirts, sweatshirts and scarves’ in Class 25. EUIPO and the intervener dispute the applicant’s arguments and contend that the single plea must be rejected. Preliminary observations Under Article 58(1)(a) of Regulation 2017/1001, the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO if, within a continuous period of five years, the trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and there is no proper reason for its non-use. 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 the 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). 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 exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the products or services protected by the mark, the nature of those products or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, Sunrider v OHIM - Espadafor Caba (VITAFRUIT) , T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul , C‑40/01, EU:C:2003:145 , paragraph 43). Furthermore, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the 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). To examine, in a particular case, whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case and entails a degree of interdependence between the factors taken into account (judgment of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 42). 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 pursuant to Article 19(1) of that regulation, evidence of use of a trade mark must relate to the place, time, extent and nature of the use to which the mark was put and is to be limited, in principle, to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, pictures, newspaper advertisements and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001. In the context of the assessment of proof of genuine use of a trade mark, Article 10 of Delegated Regulation 2018/625 does not state that each piece of evidence must necessarily give information about all four elements to which proof of genuine use must relate, namely the place, time, nature and extent of use (judgment of 16 November 2011, Buffalo Milke Automotive Polishing Products v OHIM - Werner & Mertz (BUFFALO MILKE Automotive Polishing Products) , T‑308/06, EU:T:2011:675, paragraph 61). 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). Thus, although the probative value of an item of evidence is limited to the extent that, individually, it does not show with certainty whether, and how, the goods or services concerned were placed on the market, and although that item of evidence is therefore not in itself decisive, it may nevertheless be taken into account in the overall assessment as to whether the use is genuine. That is also the case, for example, where that evidence supports the other relevant factors of the present case (see, to that effect, judgments of 6 March 2014, Anapurna v OHIM - Annapurna (ANNAPURNA) , T‑71/13, not published, EU:T:2014:105, paragraph 45, and of 23 September 2015, L’Oréal v OHIM - Cosmética Cabinas (AINHOA) , T‑426/13, not published, EU:T:2015:669 , paragraph 53). In the present case, it is apparent from the administrative file produced before the Court and from paragraph 5 of the contested decision that, in order to prove genuine use of the contested mark, the intervener produced the following items of evidence before the Cancellation Division: – a licence agreement relating to the contested mark concluded in 2015 for a period of 15 years between the intervener and a licensee having its general place of business in Düsseldorf (Germany); – a brochure ‘Celebriti by Disney 2018’, written in German, in which it is stated that the contested mark has been used since 2000, in particular for T‑shirts; – undated pictures of scarves, women’s tops and shirts, together with the packaging used, all bearing the contested mark; – three invoices issued by the licensee of the contested mark, addressed to intermediaries and agencies in the fashion sector having their seats in Cologne, Düsseldorf and Hamburg (Germany), dated 11 October 2019, 9 December 2019 and 25 March 2020 respectively, showing sales of women’s clothing, in particular T-shirts, sweatshirts and scarves, on which the contested mark appears alongside the goods sold; – an affidavit by the licensee of the contested mark stating the turnover generated under that mark between 2017 and 2020. It is thus appropriate to examine whether the arguments whereby the applicant seeks to challenge the probative value of those various items of evidence are capable of calling into question one or more findings of the Board of Appeal in relation to the period, place, nature and extent of the use of the contested mark for the goods in question. In the present case, the contested mark was registered on 19 June 2016 and the application for revocation was submitted on 9 September 2021. Consequently, it follows from Article 58(1)(a) of Regulation 2017/1001 that the relevant period during which the intervener was required to prove genuine use of the contested mark is from 9 September 2016 to 8 September 2021 inclusive, as the Board of Appeal rightly considered and which, moreover, is not disputed by the parties. Period of use It should be borne in mind that Article 58(1)(a) of Regulation 2017/1001 does not require that the contested mark has been put to continuous and uninterrupted use during the relevant period, but only that it has been put to genuine use during that period (see judgment of 3 October 2019, 6Minutes Media v EUIPO - ad pepper media International (ADPepper) , T‑668/18, not published, EU:T:2019:719 , paragraph 77 and the case-law cited), and it is therefore sufficient that a mark has been put to genuine use during a part of that period for it not to be subject to revocation (see, to that effect, judgment of 15 July 2015, TVR Automotive v OHIM - TVR Italia (TVR ITALIA) , T‑398/13, EU:T:2015:503 , paragraphs 52 and 53). In the present case, relying on the invoices showing sales of the goods in question under the contested mark between October 2019 and March 2020, supported by the brochure dating from 2018, the Board of Appeal considered, in paragraphs 31 to 34 of the contested decision, that use of the contested mark for those goods had been shown during the relevant period, in spite of the fact that the pictures also submitted by the intervener were undated. The applicant, in essence, disputes that assessment and questions the probative value of the invoices and the brochure on which the Board of Appeal based its analysis. First, the applicant claims that the invoices in question are addressed to undertakings which do not sell fashion goods to final consumers in the European Union and that they are therefore not capable of showing that the goods covered by the contested mark were actually put on sale on the territory of the European Union. In that regard, it should be observed that, according to settled case-law, genuine use of the trade mark presupposes that it is used publicly and externally and not only within the undertaking concerned. However, external use of a trade mark is not necessarily equivalent to use directed towards final consumers. Actual use of the mark relates to the market on which the proprietor of the mark carries on business and in which he or she hopes to exploit his or her mark. Thus, to consider that the external use of a trade mark, within the meaning of the case-law, necessarily consists of use directed towards final consumers would be tantamount to excluding trade marks used solely in business-to-business relationships from the protection of Regulation 2017/1001. The relevant public to which trade marks are intended to be directed does not include only final consumers, but also specialists, industrial customers and other professional users (see judgment of 11 January 2023, Hecht Pharma v EUIPO - Gufic BioSciences (Gufic) , T‑346/21, EU:T:2023:2 , paragraph 41 (not published) and the case-law cited). In a market such as that of the European Union, in order to create or preserve an outlet for goods such as those at issue in the present case, it is common - and even necessary where a manufacturer of such goods does not have its own distribution channels - to direct commercial acts at professionals in the sector and particularly at resellers. Thus, it cannot be precluded, as a matter of principle, that use of a mark proved by commercial acts directed only at professionals in the sector concerned may be considered to be use consistent with the essential function of the mark within the meaning of the case-law cited in paragraph 24 above (see judgment of 1 March 2023, Worldwide Brands v EUIPO - Wan (CAMEL) , T‑552/21, not published, EU:T:2023:98 , paragraph 89 and the case-law cited). In the present case, the undertakings to which the invoices in question were addressed are sales intermediaries of fashion goods, which, moreover, is also stated by the applicant. Those invoices cannot therefore be excluded as evidence of use of the contested mark on the sole ground that they are not addressed to final consumers. The applicant further claims that at least one of the undertakings to which those invoices were addressed is no longer active on the market and that another of those undertakings does not appear to sell goods under the contested mark. In that regard, without there being any need to rule on the admissibility - which EUIPO disputes - of such an argument and of the screenshots produced by the applicant in support of that argument, it should be observed that the fact that one of the undertakings to which the goods were sold under the contested mark was no longer active on the market at the time when the present action was brought, or that another of those undertakings does not currently sell goods under the contested mark, even if shown to be correct, is of no relevance for the purpose of disputing the use of the contested mark during the relevant period as correctly defined by the Board of Appeal (see paragraph 33 above). Accordingly, that argument must in any event be rejected as ineffective. Second, the applicant maintains that the brochure has no probative value in the absence of indications showing, on the one hand, that it was in fact distributed to final consumers and, on the other, the period during which it was distributed. In that regard, it should be observed that, admittedly, the mere production of promotional material, such as brochures, is not sufficient to establish genuine use of a trade mark. It must also be demonstrated that that publicity material, regardless of its nature, has been sufficiently distributed to the relevant public to establish the genuine nature of the use of the trade mark at issue (see judgment of 7 September 2016, Victor International v EUIPO - Ovejero Jiménez and Becerra Guibert (VICTOR) , T‑204/14, not published, EU:T:2016:448 , paragraph 74 and the case-law cited). However, it has also been held, as EUIPO observes, that it is not precluded that, even in the absence of proof that it was actually distributed, a brochure will be taken into consideration by the Board of Appeal in the overall assessment of the use of the contested mark as evidence capable of supporting other items of evidence (see, to that effect, judgment of 23 September 2015, AINHOA , T‑426/13, not published, EU:T:2015:669 , paragraph 54). In the present case, the brochure contains images of women’s clothing, in particular tops and scarves. As is apparent from the other items of evidence submitted by the intervener, in particular from the invoices issued by the licensee of the contested mark, goods such as T-shirts, sweatshirts or scarves were actually sold to undertakings under that mark. Consequently, the brochure, dated 2018, could legitimately be taken into account by the Board of Appeal in the overall assessment of the items of evidence of genuine use of the contested mark, in particular as regards the period during which it was used. It follows that the arguments put forward by the applicant do not call into question the Board of Appeal’s conclusion, in paragraph 34 of the contested decision, that the intervener has shown use of the contested mark within the relevant period. Place of use Relying on the invoices showing sales of goods under the contested mark in Germany, and on the brochure written in German, the Board of Appeal observed, in paragraphs 37 to 39 of the contested decision, that the intervener showed that the contested mark had been used in Germany, which, in the Board of Appeal’s view, was enough in order to comply with the ‘place of use’ condition. The applicant, in essence, disputes that finding, claiming that all of the invoices are addressed to undertakings based in the same geographic area and that they demonstrate use that is ‘exclusively local’. In that regard, as EUIPO rightly maintains, as regards the territorial extent of use, it follows from the case-law that if it is, admittedly, reasonable to expect that an EU trade mark should be used in a larger area than a national mark, it is not necessary that the mark should be used in an extensive geographic area for the use to be deemed genuine (judgment of 18 October 2016, August Storck v EUIPO - Chiquita Brands (Fruitfuls) , T‑367/14, not published, EU:T:2016:615 , paragraph 42; see also, to that effect, judgment of 19 December 2012, Leno Merken , C‑149/11, EU:C:2012:816 , paragraph 54). Thus, use of an EU trade mark that is restricted to the territory of a single Member State might satisfy the condition for genuine use of the EU trade mark (see, to that effect, judgment of 19 December 2012, Leno Merken , C‑149/11, EU:C:2012:816 , paragraph 50). In the present case, the Board of Appeal observed in paragraph 38 of the contested decision, in response to a similar argument put forward by the applicant in the proceedings before it, that the three invoices produced by the intervener referred to sales in Düsseldorf, Cologne and Hamburg, in Germany. It thus considered that those invoices covered an important area and market within Germany. The applicant does not in any way dispute that finding of the Board of Appeal. Furthermore, as EUIPO maintains, without being challenged by the applicant in that respect, those three cities are, respectively, the seventh, fourth and second largest cities in Germany by population and, geographically, they are spread over two large administrative regions. Similarly, as the intervener submits, in so far as the invoices are addressed to the intermediaries or agencies whose sole purpose is to sell the goods in question to resellers which ensure wider distribution, that distribution cannot be limited solely to the cities in which those agencies are situated. In those circumstances, the applicant’s argument that use of the contested mark was merely local cannot succeed. Furthermore, the applicant maintains that none of the undertakings to which the invoices were addressed appears to be active in Germany or elsewhere in the European Union. However, he adduces no evidence to support that assertion, although it is apparent from the invoices in question that the undertakings concerned have their addresses in Germany. In any event, even if the undertakings in question, while having an address in Germany, were in fact active outside the territory of the European Union, the invoices in question would still be relevant in so far as, under point (b) of the second subparagraph of Article 18(1) of Regulation 2017/1001, the affixing of the EU trade mark to goods or the packaging thereof in the European Union solely for export purposes also constitutes use of the registered trade mark (see, to that effect, judgment of 8 July 2020, Euroapotheca v EUIPO - General Nutrition Investment (GNC LIVE WELL) , T‑686/19, not published, EU:T:2020:320 , paragraph 43). The applicant does not in any way claim that that condition is not satisfied in the present case. Last, the applicant maintains that the brochure has no probative value in the absence of elements showing, inter alia, the territory in which it was distributed. In that regard, as was observed in paragraph 45 above, the brochure contains images of women’s clothing, in particular tops and scarves. It is also apparent from the invoices produced by the intervener that, among other items, T-shirts, shirts or scarves were sold under that mark to undertakings - intermediaries in the fashion sector - with an address in Germany. In addition, the fact that the brochure is written in German means that it may be considered that the brochure was aimed at a German-speaking public, in particular the public in Germany. It follows that that brochure corroborated the other items of evidence and could legitimately be taken into account by the Board of Appeal in the overall assessment of the evidence of genuine use of the contested mark, in particular as regards the place of such use. It follows that the arguments put forward by the applicant do not call into question the Board of Appeal’s conclusion, in paragraph 39 of the contested decision, that the place of use of the contested mark was Germany. Nature of use The Board of Appeal considered, in the contested decision, that the items of evidence produced by the intervener, in particular the pictures, brochure and invoices, showed that the contested mark had been used outwardly as a trade mark and that it had been used as registered in so far as its use as a word mark did not alter its distinctive character. In addition, the Board of Appeal observed that it followed from the items of evidence produced that the contested mark had been used for some of the goods in Class 25 in respect of which it had been registered and more particularly for clothing, namely T-shirts, sweatshirts and scarves. The applicant, in essence, disputes those findings of the Board of Appeal, claiming, first, that none of the invoices taken into account by the Board of Appeal shows the contested mark in the figurative form in which it was registered. In that regard, it must be borne in mind that, under point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of that mark in the form in which that mark was registered, in particular because of their ancillary position in the sign and their weak distinctive character (see judgment of 11 January 2023, Gufic , T‑346/21, EU:T:2023:2 , paragraph 62 (not published) and the case-law cited). In the present case, as the Board of Appeal rightly observed in paragraphs 51 and 52 of the contested decision, the use of the contested mark as a word mark, in particular on the invoices in question, does not alter its distinctive character. The word element ‘celebriti’ is the most distinctive element of that mark, as the stylisation of the letters is not particularly striking and has a purely decorative function. In those circumstances, the use of the contested mark as a word mark does not alter its distinctive character. In addition, as EUIPO observes, in essence, it is common commercial practice that invoices do not contain graphical elements of the trade marks and that the identification of the goods is limited to verbal indications (see, to that effect, judgment of 27 April 2022, LG Electronics v EUIPO - Anferlux-Electrodomésticos (SmartThinQ) , T‑181/21, not published, EU:T:2022:247 , paragraph 91). Last, on a number of items of evidence, notably on the pictures, the contested mark appears in its figurative form, as registered, in particular on the actual goods and on their packaging. In so far as the applicant calls into question the probative value of the pictures produced by the intervener on the ground that they are undated and do not show that the goods which they represent were actually sold on the EU market, it should be pointed out, as the Board of Appeal observes in paragraph 31 of the contested decision, that those pictures are part of a body of evidence which also includes the invoices dated during the relevant period, namely 2019 and 2020, and also the brochure dated 2018, also within the relevant period, which is not disputed by the applicant. The invoices also show that the goods were actually sold in Germany (see paragraphs 45 and 55 above). Consequently, the Board of Appeal was correct to accept the pictures as items of the body of evidence. Accordingly, the fact that the invoices contain the word ‘celebriti’ and not the stylised form in which the contested mark had been registered is not capable of calling into question the Board of Appeal’s finding in relation to the nature of the use of that mark. Second, the applicant claims that the items of evidence produced by the intervener do not prove that the contested mark was used for the goods in respect of which it had been registered. He places particular emphasis on the fact that the invoices do not describe a specific product. In that regard, it should be observed that, contrary to the applicant’s contention, it is easy to identify on the invoices produced by the intervener the specific products to which they relate, namely, inter alia, T-shirts, sweatshirts and scarves. Those invoices therefore show that the contested mark was used for some of the goods in respect of which it had been registered. Even though certain goods mentioned on the invoices are not clearly identifiable, it is appropriate to assess those items of evidence together with the other items of evidence produced by the intervener, in particular with the brochure and the pictures of the goods covered by the contested mark and bearing that mark. Accordingly, the overall assessment of the items of evidence makes it possible to conclude, as the Board of Appeal does in paragraph 73 of the contested decision, that they prove use of the contested mark for ‘clothing, namely T-shirts, sweatshirts and scarves’ in Class 25, for which that trade mark had been registered. Extent of use In the overall assessment of the items of evidence produced by the intervener, and taking account in particular of the invoices and of the affidavit as supported by the invoices and the brochure, the Board of Appeal considered, in paragraphs 57 and 64 of the contested decision, that the intervener had made efforts to be present in the market with the serious intention to use the contested mark for some of the goods in Class 25 for which the mark had been registered. In that context, the Board of Appeal observed that the evidence produced showed quantitatively significant sales of articles reaching quite significant amounts for the clothing sector. The applicant disputes that assessment and maintains that the items of evidence produced by the intervener, even when assessed as a whole, establish at most a token use of the contested mark in the light of the relevant market and the vast variety of goods covered by the contested mark. He disputes, in particular, the affidavit of the licensee of the contested mark. As regards the assessment of the extent of the use made of the contested mark, account must be taken, in particular, of the commercial volume of all the acts of use, on the one hand, and of the duration of the period in which those acts of use occurred, and the frequency of those acts, on the other (judgments of 8 July 2004, MFE Marienfelde v OHIM - Vétoquinol (HIPOVITON) , T‑334/01, EU:T:2004:223, paragraph 35, and of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 41). ‘Genuine use’ must therefore be understood to denote use that is not merely token, serving solely to preserve the rights conferred by the mark (judgment of 11 March 2003, Ansul , C‑40/01, EU:C:2003:145 , paragraph 36). However, the use of the earlier mark need not always be quantitatively significant for it to be deemed genuine (judgments of 8 July 2004, HIPOVITON , T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 42). Even minimal use may therefore be sufficient to be deemed genuine, provided that it is considered to be justified, in the economic sector concerned, to maintain or create market share for the goods or services protected by the mark. Thus, it is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether use is genuine or not, and a de minimis rule, which would not allow EUIPO or, on appeal, the Court to appraise all the circumstances of the dispute before it, cannot therefore be laid down (judgment of 11 May 2006, Sunrider v OHIM , C‑416/04 P, EU:C:2006:310 , paragraph 72). Although the concept of genuine use excludes all minimal and insufficient use as the basis for a finding that a mark is being put to real and effective use on a given market, nevertheless the requirement of genuine use does not seek to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (see judgment of 15 September 2011, centrotherm Clean Solutions v OHIM - Centrotherm Systemtechnik (CENTROTHERM) , T‑427/09, EU:T:2011:480 , paragraph 26 and the case-law cited). In the present case, the intervener has admittedly produced only three invoices attesting to the sale of clothing products under the contested mark, dated October 2019, December 2019 and March 2020. According to settled case-law, however, a low frequency or regularity in time of the use may be offset, as in the present case, by a high volume of goods marketed under the contested mark (see, to that effect, judgments of 8 July 2004, HIPOVITON , T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 42). In the present case, the volume of sales, as regards T-shirts, sweatshirts and scarves, as shown in the invoices produced, namely around 4 000 articles sold under the contested mark in a six-month period, from October 2019 to March 2020, for an amount in excess of EUR 57 000, is relatively significant in the light of the clothing sector concerned, unlike the factual circumstances underlying the case that gave rise to the judgment of 30 April 2008, Rykiel création et diffusion de modèles v OHIM - Cuadrado (SONIA RYKIEL) (T‑131/06, not published, EU:T:2008:135, paragraph 22), on which the applicant relies in support of his argument. The volume and value of the sales, as shown in the three invoices produced, are therefore sufficient to satisfy the condition relating to the extent of use, as interpreted by the case-law referred to in paragraphs 72 to 75 above, irrespective of the turnover stated in the affidavit of the licensee of the contested mark, the probative value of which is disputed by the applicant. As regards the latter submission, it should be observed that the Board of Appeal placed limited significance on the affidavit, pointing to its limited probative value and stating that it could be accepted only in so far as it was supported by the invoices. However, as is clear from paragraph 77 above, those invoices are sufficient to demonstrate the extent of the use of the contested mark. Consequently, the arguments put forward by the applicant with the aim of calling into question the probative value of the affidavit, even if well founded, are not capable of calling into question the Board of Appeal’s finding in relation to the extent of the use of the contested mark. Accordingly, it must be concluded, as the Board of Appeal, in essence, found, that in the present case the use of the contested mark was not merely a token use for the purpose of maintaining the right to the mark, but that the intervener has demonstrated a genuine and serious commercial effort attesting to her intention to create and maintain market share for the goods in question. It follows from all of the foregoing that the Board of Appeal was correct to conclude, in the context of the overall assessment of the items of evidence produced by the intervener, including the invoices, supported, inter alia, by the brochure and the pictures, that the contested mark was put to genuine use during the relevant period for the goods ‘clothing, namely T-shirts, sweatshirts and scarves’ in Class 25, for which that mark had been registered. Accordingly, the single plea raised by the applicant must be rejected and the action must therefore be dismissed. Costs 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 a hearing took place and since the applicant has been unsuccessful, he 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 (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Lucien Haddad to pay the costs. Kowalik-Bańczyk Buttigieg Dimitrakopoulos Delivered in open court in Luxembourg on 4 December 2024. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII