Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

28 June 2023 (*)

(EU trade mark – Opposition proceedings – Application for EU word mark Hofmag – Earlier non-registered word mark HOFMAG – Relative ground for refusal – No use in the course of trade of a sign of more than mere local significance – Article 8(4) and Article 60(1)(c) of Regulation (EU) 2017/1001)

In Case T‑452/22,

Hofmeir Magnetics Ltd, established in Witney (United Kingdom), represented by S. Baur, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,

defendant,

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

Healthfactories GmbH, established in Saaldorf-Surheim (Germany), represented by C. Vischer, lawyer,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and J. Schwarcz, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Hofmeir Magnetics Ltd, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 May 2022 (Case R 1367/2021‑5) (‘the contested decision’).

 Background to the dispute

2        On 13 August 2019, the intervener, Healthfactories GmbH, filed an application with EUIPO for registration of an EU trade mark in respect of the word sign Hofmag.

3        The mark applied for covered goods in Classes 9 and 10 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 corresponding, for each of those classes, to the following description:

–        Class 9: ‘Magnetic field generators, other than for medical use’;

–        Class 10: ‘Electromagnetic apparatus for conducting non-invasive magnetic field therapies by means of electromagnetic pulses; magnetic field generators for medical use’.

4        On 5 December 2019, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5        The ground relied on in support of the opposition in the opposition form was that referred to in Article 8(4) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

6        It is also apparent from the opposition form that that opposition was based on a ‘non-registered trade mark’, namely the word mark HOFMAG used in the course of trade, inter alia, in Germany and in Austria for a ‘device [using] high intensity pulsed magnetic waves to penetrate injured tissues using PEMF (pulsed electromagnetic field therapy) technology providing a drug free, non-invasive treatment for pain relief’ (‘the device’).

7        On 9 June 2021, the Opposition Division rejected the opposition.

8        On 5 August 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that the evidence submitted by the applicant was insufficient to demonstrate the economic impact of the earlier sign in Germany and Austria during the relevant period.

10      The Board of Appeal found that, although the file contained evidence showing use of the earlier sign for promotional activities undertaken before the filing date of the application at issue, namely 13 August 2019, that evidence was not sufficient to demonstrate that there was a significant presence in Germany and Austria on that date. In the absence of evidence relating to sales, it considered that it was impossible to ascertain that that sign had been used in trade in a continuous period of time starting before that filing.

11      The Board of Appeal also noted that the invoices referring to sales made by the applicant were dated after 13 August 2019. It also found that, even taking into account the narrowness of the market in question, the sales evidenced by those invoices were not sufficient to demonstrate use that was quantitatively sufficient to prove that the earlier sign had been used in the course of trade and was of more than mere local significance.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs incurred in the present proceedings and in the proceedings before the Board of Appeal.

13      EUIPO contends that the Court should:

–        dismiss the action;

–        in the event that an oral hearing is scheduled, order the applicant to pay the costs.

14      The intervener contends, in essence, that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs incurred in the present proceedings and in the proceedings before the Board of Appeal.

 Law

15      The applicant relies, in essence, on two pleas in law. The first plea alleges infringement of Article 8(4) of Regulation 2017/1001, in that the Board of Appeal did not take sufficient account of the narrowness of the market in question and thus erred in finding that the earlier sign was not used in the course of trade. The second plea alleges that the Board of Appeal did not take the sign Hofmag into account as a commercial designation in its assessment.

 Admissibility of an annex to the application and the possibility of relying on matters mentioned therein

16      The applicant submitted, in Annex A.1 to the application, an email sent by an employee of an auditing company setting out the number of sales of the device in 2019, 2020 and 2021, namely, 5 in Germany and 7 in Austria in 2019; 14 in Germany, 5 in Austria, 13 in Switzerland and 34 to its sales agent in Austria in 2020; and 23 in Germany, 6 in Austria, 42 in Switzerland and 77 to its sales agent in Austria in 2021.

17      EUIPO submits that the annex at issue and the arguments relating to it are inadmissible, since the document contained in that annex was submitted for the first time before the Court.

18      In the present case, it should be noted that Annex A.1 to the application reproduces, in part, data already submitted during the proceedings before EUIPO in respect of the period between 16 September 2019 and 4 May 2020. During those proceedings, the applicant had provided information concerning sales of the device according to which, in 2019, five sales had been made in Germany and seven in Austria. As regards 2020, the applicant produced, before EUIPO, data on the sales of the device until 4 May 2020. It is apparent from those documents that it made 9 sales in Germany and 11 sales to its sales agent in Austria up until 4 May 2020.

19      For the period between 16 September 2019 and 4 May 2020, Annex A.1 to the application and the arguments relating to it do not therefore alter the factual and legal context of the dispute or its subject matter.

20      That information must therefore be declared admissible in so far as it relates to the period between 16 September 2019 and 4 May 2020.

21      By contrast, for the period after 4 May 2020, the information relating to sales of the device was not produced before the Board of Appeal.

22      According to the case-law, the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO in accordance with Article 72 of Regulation 2017/1001, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, the abovementioned documents must be excluded, without it being necessary to assess their probative value (see judgment of 29 June 2022, Hijos de Moisés Rodríguez González v EUIPO – Ireland and Ornua (La Irlandesa 1943), T‑306/20, EU:T:2022:404, paragraph 18 and the case-law cited).

23      That information must therefore be declared inadmissible in so far as it relates to the period after 4 May 2020.

 First plea in law, concerning use of the sign in the course of trade

24      In essence, the applicant submits that, in its assessment of the conditions laid down in Article 8(4) of Regulation 2017/1001, the Board of Appeal should have taken into account the narrowness of the market in question in order to assess the criterion that the sign must be used in the course of trade and be of more than mere local significance. Thus, the Board of Appeal did not take sufficient account of the invoices subsequent to the filing date of the application for registration at issue, even though those sales are linked to promotional activities that took place before that date. In the light of the characteristics of the market in question, the evidence provided is sufficient to show use of the earlier sign in the course of trade and that it is of more than mere local significance.

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

26      As a preliminary point, it should be noted that, by virtue of Article 8(4) of Regulation 2017/1001, read in conjunction with Article 46(1)(c) of that regulation, the proprietor of a non-registered mark or of a sign other than a mark may oppose the registration of an EU trade mark if that non-registered mark or that sign satisfies all of four conditions: (i) it must be used in the course of trade; (ii) it must be of more than mere local significance; (iii) the right to that mark or sign must have been acquired in accordance with EU law or the law of the Member State in which it was used prior to the date of application for registration of the EU trade mark; and (iv) the sign must confer on its proprietor the right to prohibit the use of a subsequent trade mark. Those conditions are cumulative; thus, where a non-registered trade mark or a sign does not satisfy one of those conditions, the opposition based on the existence of a non-registered trade mark or of other signs used in the course of trade within the meaning of Article 8(4) of Regulation 2017/1001 cannot succeed (see judgment of 24 October 2018, Bacardi v EUIPO – Palírna U zeleného stromu (42 BELOW), T‑435/12, EU:T:2018:715, paragraph 43 and the case-law cited).

27      It should be noted that the applicant’s action relates only to the first two conditions for the application of Article 8(4) of Regulation 2017/1001, namely those according to which the sign must be used in the course of trade and must be of more than mere local significance. Since the Board of Appeal concluded that those conditions were not satisfied, it did not consider it necessary to examine the other two conditions set out in paragraph 26 above.

28      First of all, it must be borne in mind that, in order to prevent registration of an EU trade mark, the sign relied on in opposition must actually be used in a sufficient manner in the course of trade and its geographical extent must not be merely local, which implies, where the territory in which that sign is protected may be regarded as other than local, that the sign must be used in a substantial part of that territory. In order to determine whether that is the case, account must be taken of the economic dimension of the sign’s significance, which is assessed in light of the length of time for which it has fulfilled its function in the course of trade and the degree to which it has been used, in the light of the group of addressees among which the sign in question has become known as a distinctive element, namely consumers, competitors or indeed suppliers, and also in the light of the exposure given to the sign, for example, through advertising or on the internet (see, to that effect, judgment of 15 May 2017, Morton’s of Chicago v EUIPO – Mortons the Restaurant (MORTON’S), T‑223/15, not published, EU:T:2017:333, paragraphs 59 and 60 and the case-law cited).

29      Furthermore, in the context of Article 8(4) of Regulation 2017/1001, the use of an earlier sign cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the sign (see judgment of 19 November 2014, Out of the blue v OHIM – Dubois and Another (FUNNY BANDS), T‑344/13, not published, EU:T:2014:974, paragraph 24 and the case-law cited).

30      Moreover, it is necessary to apply to the requirement for use in the course of trade of the sign relied on in opposition the same temporal condition as that expressly laid down in Article 8(4)(a) of Regulation 2017/1001 with regard to acquisition of the right to the sign, that is to say, that of the date of application for registration of the EU trade mark or, where applicable, the date of the priority claimed for the application for registration of the EU trade mark (see, to that effect, judgments of 29 March 2011, Anheuser-Busch v Budějovický Budvar, C‑96/09 P, EU:C:2011:189, paragraph 166, and of 14 September 2011, Olive Line International v OHIM – Knopf (O-live), T‑485/07, not published, EU:T:2011:467, paragraph 50).

31      In the present case, the parties agree that the relevant date is 13 August 2019.

32      In the contested decision, the Board of Appeal held that the evidence submitted by the applicant was not sufficient to prove that the earlier sign had been used sufficiently in the course of trade in Germany and Austria before the relevant date and that it was of more than mere local significance. It stated, inter alia, that the only evidence submitted by the applicant referring to the sales of the device post-dated the relevant date. Furthermore, and in any event, such evidence was not quantitatively sufficient, even taking into account the narrowness of the market.

33      As a preliminary point, it should be recalled that it is not disputed that the applicant did not make any sales of the device before the relevant date. Nor is it disputed that, shortly before that date, the applicant carried out a number of promotional activities from July 2019, which subsequently resulted in sales of the device from September 2019 onwards.

34      In the first place, with regard to the applicant’s claim that the Board of Appeal failed to take the narrowness of the market into account, it must be borne in mind that, pursuant to Article 95(1) of Regulation 2017/1001, in proceedings relating to relative grounds for refusal of registration, EUIPO’s examination is to be restricted to the facts, evidence and arguments provided by the parties and the relief sought. It follows from that provision that it is also for the parties to provide the facts and evidence in support of the relief sought (see, to that effect, judgment of 11 April 2019, Inditex v EUIPO – Ansell (ZARA TANZANIA ADVENTURES), T‑655/17, not published, EU:T:2019:241, paragraph 37 and the case-law cited). It is clear from that provision that it was therefore for the applicant to prove the narrowness of the market in question.

35      In that regard, the applicant asserts that it had argued that the intervener, despite being the ‘market leader’, had extremely low sales figures, which reflected the narrowness of the market. It submits that the intervener, according to its own press release of 22 August 2018, sold 200 units of its device in 16 countries. It infers from this that EUIPO incorrectly relied on the intervener’s statement according to which it sold approximately 540 units between 2014 and 2021, even though it is not stated whether those sales relate to devices for veterinary or human use, and that, in any event, that would lead to an average of 75 to 80 products sold per year.

36      For its part, the intervener maintains that the statements concerning it are incorrect. First of all, it states that it does not claim to be the ‘market leader’, but rather a ‘technological market leader’. Moreover, average sales are not decisive in the present case in so far as those figures, which were initially low, increased steadily over the years. In essence, the average established by the applicant is not indicative of the market for the years 2019 to 2021. The intervener therefore disputes the narrowness of the market and submits, moreover, that there are 3 890 000 horse riders in Germany and 120 000 horses in Austria. Since horses are exposed to a high risk of injury, the products in question appeal to a large number of horse owners.

37      It should be noted, first, that the intervener’s press release of 22 August 2018 is not sufficient to prove the narrowness of the market in question. That press release does not provide information on the number of potential customers or possible competitors. Moreover, the applicant relies on that press release in order to calculate the average sales of the intervener, even though the data used for that purpose are not sufficiently detailed, since, in particular, they do not provide any precise information about the European Union, and even less concerning Germany and Austria. In that regard, the applicant’s argument that the Board of Appeal did not understand that that press release was produced in order to prove the narrowness of the market must be rejected, since, in the present case, that document is not capable of proving such narrowness.

38      Secondly, it must be held that a high price is not sufficient, in itself, to conclude that a market is narrow. The applicant has not adduced any evidence to show that there is a ‘limited group of purchasers’, such as, hypothetically, data on the number of horse riders, the number of professional equestrian centres in Germany and Austria and the number of horses used for professional competitions or on what its sales and the impact of its promotional activities actually represent in relation to the number of potential customers.

39      Furthermore, it is not for EUIPO to speculate about the characteristics of a relevant market in the absence of evidence submitted in that regard.

40      Consequently, the applicant cannot criticise the Board of Appeal for not having taken sufficient account of the narrowness of the market in question in its assessment when the applicant did not provide sufficient evidence for it to be taken into account.

41      In any event, it is apparent from paragraph 101 of the contested decision that the Board of Appeal held that, even taking into account the narrowness of the market in question, the use of the earlier sign did not appear to be quantitatively sufficient to prove that that sign had been used in the course of trade and that it was of more than mere local significance.

42      In the second place, the applicant disputes the assessments of the evidence relating to the use of the earlier sign in the course of trade and its being of more than mere local significance contained in the contested decision.

43      In that regard, it should be noted that it is apparent from the file submitted to EUIPO that the applicant used a sales agent, who attended four equestrian competitions between 18 July 2019 and 11 August 2019, in Austria and Italy, which brought together participants from all over Europe. That agent stated that he had handed out, on those occasions, brochures on the device on which the earlier sign was affixed. He also demonstrated the device on horses of professional riders who then posted photos to their social media accounts. The applicant produced screenshots from those social media, a copy of the brochures distributed, and information on those competitions. It is also apparent from EUIPO’s file that, following those promotional initiatives, the applicant made a number of sales of the device, in particular in Germany and Austria.

44      As is apparent from paragraphs 30 and 31 above, in order to establish use of the earlier sign in the course of trade, within the meaning of Article 8(4) of Regulation 2017/1001, account must be taken of the evidence submitted by the applicant relating to the period prior to the relevant date, namely 13 August 2019.

45      It follows, a contrario, that the evidence concerning facts relating to the period after 13 August 2019 are not relevant in the present case for the examination of the condition of use of the earlier sign in the course of trade, as is apparent from the case-law cited in paragraph 30 above (see, to that effect, judgment of 6 April 2022, Dorit-DFT v EUIPO – Erwin Suter (DORIT), T‑208/21, not published, EU:T:2022:228, paragraph 30).

46      In any event, even if, as the Board of Appeal acknowledged in the contested decision, such evidence could be taken into account to corroborate evidence predating the relevant date, in particular because of the proximity in time between the promotional activities and the sales, in the present case, that evidence and the applicant’s arguments relating thereto are not sufficient to demonstrate use of the earlier sign in the course of trade.

47      First, as regards promotional activities, in addition to its criticism that the Board of Appeal did not sufficiently take into account the narrowness of the market in question, the applicant refers to the social media posts and the Board of Appeal’s assessment that 121 and 354 positive reactions to those posts did not allow the number of corresponding users to be inferred therefrom. However, that criticism is based on a misreading of the contested decision in so far as the Board of Appeal did not assess the number of positive reactions, but stated that the number of persons who had viewed those pages was unknown and, moreover, that those initiatives had been undertaken for a very limited period before the relevant date. That argument must therefore be rejected.

48      Secondly, the applicant contests the assessment of the number of sales of the device. In that regard, it should be recalled that the applicant submitted to EUIPO 26 invoices relating to customers established in Germany and in Austria from which it is possible to identify 31 sales of the device in total between 16 September 2019 and 4 May 2020. The applicant also submitted tables showing its sales and statements from its director and its sales agent that repeat the data on those invoices.

49      In that regard, first of all, in its arguments, the applicant uses its own sales during the last four months of 2019 as a starting point and extrapolates those sales to a calendar year, in order to calculate the hypothetical annual sales for 2019, that is to say, the sale of 39 units of the device. Applying the same method to the first three months of 2020, the applicant gets the sale of 68 units of the device for 2020.

50      However, according to the case-law referred to in paragraph 29 above, the use of an earlier sign cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the sign. The applicant’s calculations are based on probabilities and cannot be regarded as probative. That is all the more so since there is no information from which it is possible to measure or assess what those estimates represent in relation to the market in question in Germany and Austria in 2019.

51      Furthermore, as regards the applicant’s actual sales, since it is not possible to rely on evidence proving that those sales are sufficient because of the characteristics specific to the market in question, the 31 sales of the device during the last four months of 2019 and the first three months of 2020 cannot be considered to be quantitatively sufficient to prove that the earlier sign was used in the course of trade and that it was of more than mere local significance.

52      Consequently, in the absence of evidence showing sufficiently significant use of the earlier sign in the course of trade in Germany and Austria prior to the relevant date, the first plea must be rejected as unfounded.

 Second plea in law, concerning the sign Hofmag as a commercial designation

53      The applicant submits that its opposition was also based on the commercial designation Hofmag and not solely on the word sign HOFMAG. First, in the opposition form, it had stated, under the heading ‘Grounds for opposition’, that it was relying on an ‘earlier … trade mark or sign’, which covers both non-registered trade marks and commercial designations. Secondly, as regards the annex accompanying the opposition form referring to the commercial designation Hofmag, EUIPO should have inferred from that that its opposition was also based on that commercial designation. Thirdly, in its observations submitted in support of the opposition dated 8 July 2020, it referred to Austrian law concerning the protection of a commercial sign.

54      EUIPO disputes the applicant’s arguments.

55      Article 46(1) of Regulation 2017/1001 provides that, within a period of three months following the publication of an EU trade mark application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 of that regulation. In addition, in accordance with Article 46(3) of that regulation, the opposition must state the grounds on which it is based.

56      It follows from the case-law that, on expiry of the deadline for filing an opposition, set out in Article 46 of Regulation 2017/1001, the applicant may no longer rely on new earlier rights or new grounds of opposition (order of 8 June 2018, Lupu v EUIPO – Dzhihangir (Djili soy original DS), T‑456/17, not published, EU:T:2018:342, paragraph 43).

57      Furthermore, Article 2(2)(b) 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) provides that the notice of opposition is to contain a clear identification of the earlier mark or right on which the opposition is based. That provision states, in point (iv), that where the opposition is based on an earlier mark or another sign within the meaning of Article 8(4) of Regulation 2017/1001, the notice of opposition is to contain an indication of its kind or nature, a representation of the earlier mark or sign, and an indication of whether the right to the earlier mark or sign exists in the whole European Union or in one or more Member States and, if so, an indication of those Member States.

58      In the present case, in the contested decision, the Board of Appeal held that the opposition form did not contain any indication relating to the commercial designation Hofmag. In that document, the applicant relied only on the non-registered trade mark HOFMAG as the basis for the opposition. The commercial designation was not invoked before the Opposition Division until 8 July 2020, that is to say after the opposition period expired on 9 December 2019, and cannot constitute a ground of opposition.

59      In the first place, it must be stated that, in the opposition form, under the heading ‘Basis of opposition’, the opponent has the choice of selecting ‘non-registered trade mark’ and/or ‘other sign used in the course of trade’, from which it is possible to choose ‘trade name’. The opponent may therefore add both a non-registered trade mark, as the applicant did in the present case, and another sign used in the course of trade.

60      However, in the present case, the applicant did not select ‘other sign used in the course of trade’. The opposition form refers only to the word mark HOFMAG. As stated in paragraph 57 above, the notice of opposition must contain a clear identification of the earlier mark or earlier right on which the opposition is based. Consequently, the applicant cannot infer from the mere statement made in the opposition form that it relies on Article 8(4) of Regulation 2017/1001 that the commercial designation Hofmag also constitutes a basis for the opposition when it should have added that basis of opposition if it intended to rely on it.

61      Furthermore, it must be stated, as EUIPO correctly pointed out, that the indication of the choice of basis, in the opposition form, then enables the opponent to indicate more specifically what that basis consists of and, thus, allows EUIPO and the applicant for the trade mark to take cognisance of it. The opponent must therefore indicate the type of mark, its description and the territories covered. In the present case, by failing to indicate that it intended to rely on the commercial designation Hofmag, the applicant deprived the intervener of the information necessary to put forward its arguments.

62      Consequently, the applicant cannot validly claim that it also intended to rely on an ‘other sign used in the course of trade’ when it did not mention it in the opposition form, under the heading ‘Basis of opposition’.

63      In the second place, in the annex attached by the applicant to the opposition form, the commercial designation Hofmag appears only in the applicant’s contact details and takes up very limited space in relation to the non-registered trade mark HOFMAG, which is clearly visible. Since that brochure is the annex to the opposition form, which solely invokes a non-registered trade mark, it cannot clearly follow that the applicant also intended to rely on the commercial designation. That mere reference cannot therefore constitute a separate basis for opposition.

64      In the third place, the applicant complains that the Board of Appeal failed to take into account some of its observations submitted in support of the opposition dated 8 July 2020 in which it referred to Austrian law concerning the protection of a commercial sign.

65      It must be stated that those observations were submitted after the expiry of the opposition period. The Board of Appeal therefore correctly found that the ground of opposition based on the commercial designation Hofmag in Germany and Austria was inadmissible.

66      As regards the applicant’s references to the Guidelines for the Examination of European Union Trade Marks, adopted by EUIPO, it is to be noted that they are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48).

67      It follows from the foregoing that the Board of Appeal correctly held that the opposition was based solely on the use of the word sign HOFMAG in the course of trade, and not on the commercial designation Hofmag. The second plea in law must therefore be rejected as unfounded.

68      In view of all of the foregoing considerations, since none of the pleas relied on by the applicant in support of the form of order which it seeks can be upheld, the action must be dismissed.

 Costs

69      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.

70      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is scheduled, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.

71      As regards the intervener’s claim regarding the costs of the proceedings before the Board of Appeal, it is sufficient to point out that, since the present judgment is dismissing the action brought against the contested decision, it is the operative part in the contested decision which continues to determine the costs in question (see, to that effect, judgment of 4 October 2017, Intesa Sanpaolo v EUIPO – Intesia Group Holding (INTESA), T‑143/16, not published, EU:T:2017:687, paragraph 74).

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Hofmeir Magnetics Ltd to bear its own costs and to pay those incurred by Healthfactories GmbH;

3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

Delivered in open court in Luxembourg on 28 June 2023.

*      Language of the case: English.

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