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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

1 March 2023 (*)

(EU trade mark – Revocation proceedings – EU word mark CAMEL – Evidence submitted for the first time before the Board of Appeal – Article 95(2) of Regulation (EU) 2017/1001 – Article 27(4) of Delegated Regulation (EU) 2018/625 – Genuine use of the mark – Article 58(1)(a) of Regulation 2017/1001 – No assessment of some of the evidence submitted)

In Case T‑552/21,

Worldwide Brands, Inc. Zweigniederlassung Deutschland, established in Cologne (Germany), represented by J.L. Gracia Albero, R. Ahijón Lana and B. Tomás Acosta, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by R. Raponi and D. Hanf, acting as Agents,

defendant,

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

Eric Guangyu Wan, residing in Vancouver, British Columbia (Canada), represented by V. Piccarreta and G. Romanelli, lawyers,

THE GENERAL COURT (Third Chamber),

composed, at the time of the deliberations, of G. De Baere, President, K. Kecsmár and S. Kingston (Rapporteur), Judges,

Registrar: G. Mitrev, Administrator,

having regard to the written part of the procedure,

further to the hearing on 20 September 2022,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Worldwide Brands, Inc. Zweigniederlassung Deutschland, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 July 2021 (Case R 1548/2020-1) (‘the contested decision’).

 Background to the dispute

2        On 14 December 1998, a predecessor in law to the intervener, Mr Eric Guangyu Wan, filed an application for registration of an EU trade mark with EUIPO in respect of the word sign CAMEL.

3        The mark applied for covered goods in Class 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, corresponding to the following description: ‘Clothing, headgear’.

4        The trade mark application was published in Community Trade Marks Bulletin No 63/1999 of 9 August 1999. The mark was registered on 23 October 2003 under the number 1015593.

5        On 19 November 2018, the applicant filed an application for revocation of the contested trade mark pursuant to Article 58(1)(a) 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), in respect of all the goods referred to in paragraph 3 above, on the ground that that mark had not been put to genuine use in the European Union within a continuous period of five years.

6        On 26 March 2019, the intervener submitted before EUIPO various items of evidence, numbered 1 to 11, in order to prove use of the contested mark.

7        By decision of 28 May 2020, the Cancellation Division revoked the contested mark on the ground of lack of genuine use in respect of all of the goods covered by that mark.

8        On 27 July 2020, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the Cancellation Division’s decision. On 28 September 2020, the statement of grounds for the appeal reached EUIPO. At the same time as he submitted that document, the intervener submitted additional items of evidence, numbered 1 to 10.

9        By the contested decision, the Board of Appeal partially annulled the Cancellation Division’s decision. In the first place, as regards the evidence submitted for the first time during the appeal proceedings, it found that the conditions for accepting the evidence submitted belatedly by the proprietor of the EU trade mark, at the stage of the appeal, had been met, since that evidence was, prima facie, relevant for the outcome of the case and was complementary and supplementary with regard to the evidence which the intervener had already submitted before the Cancellation Division. The Board of Appeal observed that there was nothing to suggest that the intervener had, in that regard, been negligent or had used delaying tactics. In the second place, as regards the proof of genuine use, the Board of Appeal found that, contrary to what the Cancellation Division had decided, genuine use had been proved in connection with the subcategory of goods ‘shirts’ in Class 25, in particular in Spain, France and Italy. It thus annulled the Cancellation Division’s decision to that extent. By contrast, it upheld the Cancellation Division’s finding that no genuine use of the contested mark had been proved in connection with the other goods in the general category of ‘clothing’ in Class 25 and in connection with the items of ‘headgear’ in that class.

 Forms of order sought

10      The applicant claims that the Court should:

–        partially annul the contested decision, in so far as the Board of Appeal rejected the application for revocation of the contested mark in relation to ‘shirts’ in Class 25;

–        order EUIPO to pay the costs, including those incurred before the Cancellation Division and the Board of Appeal.

11      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

12      The intervener contends that the Court should:

–        confirm the contested decision;

–        order the applicant to pay the costs.

 Law

13      It must be pointed out at the outset that, by his first head of claim, the intervener requests that the Court confirm the contested decision.

14      However, given that ‘confirming’ the contested decision is tantamount to dismissing the action, the intervener’s first head of claim must be understood as seeking, in essence, the dismissal of the action (see judgment of 13 December 2016, Apax Partners v EUIPO – Apax Partners Midmarket (APAX), T‑58/16, not published, EU:T:2016:724, paragraph 15 and the case-law cited).

 The issue of whether the evidence submitted at the hearing is admissible

15      At the hearing, the applicant submitted new evidence consisting of:

–        first, a printout of the result of the hyperlink which is referred to by the intervener in paragraph 64 of the statement of grounds for the appeal which he submitted before the Board of Appeal, in order to show that it did not correspond to the result which the intervener had submitted as additional exhibit No 1 before the Board of Appeal;

–        secondly, a document reproducing invoices which were issued by the intervener’s predecessor in law to customers established in Spain, France and Italy and were submitted by the intervener before the Cancellation Division, in which certain particulars have been highlighted or had an outline drawn around them by the applicant;

–        thirdly, an invoice mentioning the sign CAPRI in the header, which was issued by the intervener’s predecessor in law;

–        fourthly, a decision of the First Board of Appeal of EUIPO of 20 July 2022 (Case R 1879/2021-1), relating to opposition proceedings between a third party and the intervener’s predecessor in law.

16      The parties were asked to express their views on the admissibility and content of that evidence at the hearing. The applicant claimed, in essence, that the submission of that evidence was justified in the circumstances of the present case. EUIPO and the intervener contended that it was belated and was, in any event, inconclusive.

17      In that regard, it must be pointed out that, under Article 85(1) of the Rules of Procedure of the General Court, evidence produced or offered must be submitted in the first exchange of pleadings. Article 85(3) of those rules provides that the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.

18      In the present case, the first two items of evidence submitted are documents compiled by the applicant, which have been submitted for the purpose of disputing the authenticity of items of evidence produced by the intervener during the proceedings before EUIPO.

19      However, those documents cannot be allowed at this stage, as the applicant has not put forward any convincing argument which serves to justify the delay in their submission. They are therefore inadmissible.

20      That said, it must be pointed out, as regards the second item of evidence submitted, which consists of a compilation, for the purposes of comparison, of a number of invoices issued by the intervener’s predecessor in law, that the inadmissibility of that new document in no way affects the Court’s taking into account the invoices in question which, as EUIPO acknowledged at the hearing, are an integral part of EUIPO’s case file.

21      The third item of evidence submitted is an invoice that was drawn up by the intervener’s predecessor in law, which mentions the sign CAPRI in the header and was, according to the applicant, submitted in the context of other proceedings before EUIPO, which related to the EU figurative mark CAPRI and were closed by a decision of the Cancellation Division of 27 May 2013 (Case 6339 C).

22      According to the applicant, that invoice makes it possible to refute the Board of Appeal’s finding that the shirts listed in the invoices produced by the intervener, which mention the mark CAMEL in their headers, are shirts which bear that mark, because the new invoice provided shows that the same goods, which have the fashion product code No 62052000, were claimed to bear the mark CAPRI in the other proceedings.

23      The line of argument which the applicant put forward at the hearing in order to justify the belated submission of that evidence cannot succeed.

24      It stated, in essence, that it had realised that the same goods had been claimed to bear the mark CAPRI in the other proceedings, after it had read paragraph 44 of the response, in which EUIPO refers to product code No 62052000, which appears on some of the invoices bearing the mark CAMEL which the intervener had submitted during the proceedings before EUIPO. However, in paragraph 44 of that response, EUIPO merely describes evidence which was already included in the case file relating to the administrative proceedings and with regard to which the applicant could previously have adopted a position.

25      Lastly, as regards the fourth document submitted, it does not, strictly speaking, constitute evidence, within the meaning, in particular, of Article 85 of the Rules of Procedure, but relates to EUIPO’s decision-making practice, to which, even if that practice postdates the procedure before EUIPO, as is the case here, a party has the right to refer for the first time at the hearing (see, to that effect, judgments of 14 March 2018, Crocs v EUIPO – Gifi Diffusion (Footwear), T‑651/16, not published, EU:T:2018:137, paragraph 17, and of 24 March 2021, Lego v EUIPO – Delta Sport Handelskontor (Building block from a toy building set), T‑515/19, not published, EU:T:2021:155, paragraph 21 and the case-law cited).

26      For those reasons, it must be held that the submission of the first three items of evidence which the applicant produced at the hearing was belated for the purposes of Article 85(3) of the Rules of Procedure and that the decision of EUIPO which was produced as the fourth item of evidence is admissible.

 Substance

27      The applicant puts forward two pleas in law in support of the action.

28      The first plea alleges infringement of Article 95(2) of Regulation 2017/1001, read in conjunction with Article 27(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), in that the Board of Appeal erred in accepting the evidence which the intervener had submitted for the first time at the stage of the appeal.

29      The second plea alleges infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18(1)(a) of that regulation, in that the Board of Appeal made errors in the examination of the arguments and evidence which had been submitted for the purposes of the assessment of whether there had been genuine use of the contested mark.

 The first plea, alleging infringement of Article 95(2) of Regulation 2017/1001, read in conjunction with Article 27(4) of Delegated Regulation 2018/625

30      The applicant claims that the Board of Appeal erred in accepting the evidence which the intervener had submitted for the first time at the stage of the appeal.

31      EUIPO and the intervener contend that the first plea should be rejected.

32      In that regard, it must be stated that it is apparent from the case file relating to the proceedings before EUIPO that, in the context of its appeal against the decision of the Cancellation Division which revoked the contested mark, the intervener submitted a statement of grounds for its appeal and annexes (see paragraph 8 above). It is common ground between the parties that those annexes contain evidence which the intervener submitted for the first time before the Board of Appeal.

33      According to Article 95(2) of Regulation 2017/1001, EUIPO ‘may disregard facts or evidence which are not submitted in due time by the parties concerned’.

34      It follows from the wording of that article that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time limits to which such submission is subject under the provisions of that regulation, and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced late (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 42; of 19 April 2018, EUIPO v Group, C‑478/16 P, not published, EU:C:2018:268, paragraph 34; and of 2 June 2021, Franz Schröder v EUIPO – RDS Design (MONTANA), T‑854/19, EU:T:2021:309, paragraph 24).

35      In stating that EUIPO ‘may’, in such a case, decide to disregard such evidence, Article 95(2) of Regulation 2017/1001 grants EUIPO a broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take it into account (see, to that effect, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 43; of 24 January 2018, EUIPO v European Food, C‑634/16 P, EU:C:2018:30, paragraph 56; and of 2 June 2021, MONTANA, T‑854/19, EU:T:2021:309, paragraph 25).

36      Furthermore, Article 27(4) of Delegated Regulation 2018/625 circumscribes the exercise of the discretion which is provided for in Article 95(2) of Regulation 2017/1001, as regards facts and evidence submitted for the first time before the Board of Appeal. That provision reads as follows:

‘In accordance with Article 95(2) of Regulation … 2017/1001, the Board of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence meet the following requirements:

(a)      they are, on the face of it, likely to be relevant for the outcome of the case; and

(b)      they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.’

37      In the first place, the applicant claims that the Board of Appeal erred in finding that the requirement laid down by Article 27(4)(b) of Delegated Regulation 2018/625 for accepting that evidence which was produced for the first time before it was met, namely that the evidence in question could, for the purposes of that provision, be regarded as ‘supplementary’ with regard to the evidence which had already been filed.

38      The applicant submits, in that regard, that the Cancellation Division found that the reference to the contested mark in the header of the invoices submitted was not sufficient to prove genuine use of that mark, since, first, no link could be made between that mark and the goods which appeared in the invoices and, secondly, the remaining evidence provided did not help to prove such a link. Accordingly, in the applicant’s view, the additional evidence submitted by the intervener should, in order to be classified as supplementary for the purposes of Article 27(4)(b) of Delegated Regulation 2018/625, have focused on proving the link between the contested mark and the goods listed in the invoices.

39      In that regard, it must be pointed out that, in the present case, the intervener submitted, within the time limit set by EUIPO, various items of evidence, which have been referred to in paragraph 6 above, were intended to prove use of the contested mark and consisted of several hundred invoices issued by his predecessor in law between 2014 and 2018 to customers located in Spain, France and Italy (exhibits Nos 1 to 7); of invoices issued between 2014 and 2018 by third-party companies to the intervener’s predecessor in law in respect of the purchase of labels bearing the contested mark, which were intended to be affixed to clothing (exhibit No 8), in respect of the purchase of price tags (exhibit No 9) and in respect of the purchase of boxes (exhibit No 10); and also of a photograph of a shirt bearing a CAMEL label and an undated printout from a website of the intervener’s predecessor in law showing six shirts bearing a CAMEL label (exhibit No 11).

40      The Cancellation Division found that the evidence submitted was insufficient to prove genuine use of the contested mark. It therefore revoked that mark with regard to all the goods in respect of which it had been registered.

41      In the context of the appeal which he brought against the Cancellation Division’s decision, the intervener submitted, as annexes to his statement of grounds for the appeal, the additional evidence referred to in paragraph 8 above, which consists of a dated printout from the website of his predecessor in law showing six shirts bearing a CAMEL label (additional exhibit No 1), various declarations by third parties (additional exhibits Nos 2 to 6) and invoices issued by his predecessor in law in respect of the purchase of goods covered by other marks of which it is the proprietor, in order to illustrate the predecessor in law’s business practice of issuing separate invoices in respect of each of its marks (additional exhibits Nos 7 to 10).

42      Those additional items of evidence, which were submitted before the Board of Appeal, are in addition to those which had already been submitted before the Cancellation Division. They were intended as a response to the Cancellation Division’s findings regarding the insufficient nature of the proof of genuine use of the contested mark. Consequently, not only did those items of evidence prove to be relevant for the outcome of the case, but they were capable, for the purposes of Article 27(4)(b) of Delegated Regulation 2018/625, of validly supplementing the evidence which had already been submitted. The Board of Appeal was therefore right in finding that the requirements laid down by that provision had been met.

43      The applicant’s first argument must therefore be rejected.

44      In the second place, the applicant submits that the Board of Appeal did not, in the contested decision, provide any statement of reasons as regards the way in which it specifically exercised its discretion in order to allow the evidence which the intervener had submitted for the first time at the stage of the appeal.

45      In that regard, it must be borne in mind that the first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. It has two purposes: (i) to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights and (ii) to enable the Courts of the European Union to exercise their power to review the legality of the decision. It is not necessary for the reasoning to address all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgment of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65).

46      As regards, in particular, the situation in which EUIPO decides whether or not to take into account facts or evidence submitted belatedly, it has been pointed out, in the case-law, that any taking into account by EUIPO of those facts or that evidence does not in any way constitute a ‘favour’ granted to one party or the other, but must be the result of an objective and reasoned exercise of the discretion conferred on EUIPO by Article 95(2) of Regulation 2017/1001, the statement of reasons thus required being all the more necessary when EUIPO decides to reject evidence submitted out of time (see judgment of 24 September 2019, Pink Lady America v CPVO – WAAA (Cripps Pink), T‑112/18, EU:T:2019:679, paragraph 100 and the case-law cited).

47      In the present case, in accordance with the case-law referred to in paragraph 45 above, the Board of Appeal set out the reasons why it found that it was necessary, for the purposes of giving the decision it was required to take, to take into account the additional items of evidence which the intervener had submitted at the stage of the appeal.

48      In paragraph 20 of the contested decision, after having referred to the provisions in Article 95(2) of Regulation 2017/1001 and Article 27(4) of Delegated Regulation 2018/625 and described the additional items of evidence which had been submitted, the Board of Appeal stated that the conditions for accepting belated evidence had been met, because:

–        the evidence related to genuine use and to the other requirements laid down by Article 58(1)(a) of Regulation 2017/1001;

–        the evidence was complementary and supplementary to the documents submitted before the Cancellation Division;

–        that supplementary evidence was, prima facie, relevant for the outcome of the case.

49      In paragraph 21 of the contested decision, the Board of Appeal found that there was, moreover, nothing to suggest negligence or delaying tactics on the intervener’s part, since both parties had already filed some evidence in the proceedings before the Cancellation Division.

50      The applicant’s second argument must therefore be rejected.

51      In the third place, the applicant claims that there was a lack of diligence on the intervener’s part, which should have precluded the Board of Appeal from exercising its discretion in favour of that party. In that context, first, it points out that the intervener filed the additional evidence for the first time before the Board of Appeal, that is to say, a considerable time after the time limit which had initially been set by EUIPO for the purpose of providing proof of use. Secondly, it submits that the intervener also failed to submit that evidence in the observations which he submitted on 15 November 2019 before the Cancellation Division. Furthermore, it contends that the intervener has provided no explanation as to the reasons for the belated submission of the additional evidence.

52      In that regard, it must be pointed out that the applicant’s claim that the intervener did not explain why he had not submitted, within the time limit set, the evidence which he produced for the first time before the Board of Appeal cannot succeed.

53      Indeed, the intervener explained, at the same time as he submitted the additional evidence before the Board of Appeal, that he had found himself in the situation of having to collect and present evidence of use before the Cancellation Division only a few months after having acquired the contested mark.

54      Furthermore, the case file does not show that the intervener abused the time limits set by knowingly employing delaying tactics or by demonstrating manifest negligence. He merely produced supplementary evidence after the evidence which he had initially produced was deemed insufficient by the Cancellation Division (see, to that effect, judgment of 4 June 2015, Stayer Ibérica v OHIM – Korporaciya ‘Masternet’ (STAYER), T‑254/13, not published, EU:T:2015:362, paragraph 42).

55      The applicant’s third argument must therefore be rejected and, consequently, the first plea must be rejected in its entirety.

 The second plea, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18(1)(a) of that regulation

56      The applicant claims that the Board of Appeal erred in proceeding on the basis of a mere assumption, namely that the goods listed in the invoices submitted by the intervener were goods covered by the contested mark. It submits that the reference to the contested mark in the header of the invoices is not, on its own, sufficient to prove genuine use of that mark. According to the applicant, the intervener should have submitted other items of evidence which served to corroborate the link between the goods listed in the invoices and the contested mark. It argues that the other items of evidence which that party submitted did not, however, serve to establish that link.

57      It submits that the Board of Appeal also made a number of errors in assessing the evidence submitted by the parties. It argues, inter alia, that the Board of Appeal did not weigh certain documents submitted by the intervener against the investigators’ report which the applicant had submitted before the Cancellation Division and which cast doubt on the evidence provided by the intervener. It submits that the Board of Appeal does not even refer to that report in the contested decision, although it ought to have compared all the documents in order to assess their probative value.

58      EUIPO contends that the applicant’s arguments should be rejected. The intervener considers the second plea to be inadmissible and, in the alternative, unfounded.

–       The issue of whether the second plea is admissible

59      The intervener submits, in essence, that, by the second plea, the applicant seeks to have the Court carry out a re-examination of the evidence which was submitted before the Board of Appeal for the purposes of proving genuine use of the contested mark, a plea which is inadmissible.

60      In that regard, it must be pointed out that Article 72(2) of Regulation 2017/1001 provides that an action against decisions of the Boards of Appeal may be brought on grounds of, inter alia, infringement of that regulation.

61      As has been stated in paragraph 29 above, the second plea alleges infringement of a provision of Regulation 2017/1001, namely Article 58(1)(a) of that regulation, read in conjunction with Article 18(1)(a) thereof.

62      Furthermore, it is apparent from the case-law that, under Article 72(2) of Regulation 2017/1001, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal by reviewing their application of EU law, having regard, in particular, to the facts which were submitted to them (judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 38, and order of 28 March 2011, Herhof v OHIM, C‑418/10 P, not published, EU:C:2011:187, paragraph 47).

63      In particular, the General Court is entitled to carry out a full review of the legality of the decisions of the Boards of Appeal of EUIPO, if necessary examining whether those boards have made a correct legal classification of the facts of the dispute or whether their assessment of the facts submitted to them was flawed (judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 39).

64      Consequently, contrary to what the intervener claims, the applicant is entitled to ask the Court to examine, in the context of its full review of the legality of the contested decision, the items of evidence submitted by the parties before EUIPO, in order to check whether the Board of Appeal took sufficient account thereof and correctly assessed their relevance and evidential value and whether, on that basis, it was right in finding that genuine use of the contested mark had been proved (see, to that effect, judgment of 23 May 2019, Holzer y Cia v EUIPO – Annco (ANN TAYLOR and AT ANN TAYLOR), T‑3/18 and T‑4/18, EU:T:2019:357, paragraph 30).

65      For those reasons, the second plea is admissible.

–       The merits of the second plea

66      Article 58(1)(a) of Regulation 2017/1001 provides that 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 are no proper reasons for non-use.

67      As regards the criteria for assessing genuine use, Article 10(3) of Delegated Regulation 2018/625, applicable to revocation proceedings in accordance with Article 19(1) of that regulation, provides that proof of use must relate to the place, time, extent and nature of use of the contested mark.

68      It must be borne in mind that, in proceedings for revocation of a trade mark, it is, in principle, for the proprietor of the mark to prove genuine use of that mark (see judgment of 23 January 2019, Klement v EUIPO, C‑698/17 P, not published, EU:C:2019:48, paragraph 57 and the case-law cited).

69      In that regard, it is apparent from the case-law that 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 and services for which it is registered, in order to create or preserve an outlet for those goods and services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 39 and the case-law cited).

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

71      In order to examine whether a contested trade mark has been put to genuine use, a global assessment must be carried out, which takes into account all the relevant factors of the particular case (see judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42 and the case-law cited).

72      Lastly, genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned (see judgment of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28 and the case-law cited).

73      It is in the light of those considerations that the second plea must be examined.

74      It is important to point out at the outset that the contested mark was registered on 23 October 2003 and that the application for revocation was filed on 19 November 2018. Consequently, since the contested mark had been registered for more than five years at the time when that application for revocation was filed, the intervener had to prove genuine use of that mark in connection with the goods in respect of which it was registered in the course of the five years preceding the date on which the application for revocation was filed, namely from 19 November 2013 to 18 November 2018 inclusive (‘the relevant period’).

75      That having been said, it must be examined whether, as the applicant claims, the evidence which the intervener submitted could not be regarded as sufficient to prove genuine use of the contested mark during the relevant period in connection with ‘shirts’ in Class 25.

76      Most of the evidence submitted by the intervener concerns invoices which contain the contested mark in their headers and refer to sales of clothing listed in each invoice. The following were thus submitted:

–        161 invoices addressed to customers located in Italy regarding orders made in 2014 (exhibit No 1); 119 invoices in respect of the year 2015 (exhibit No 2); 145 invoices in respect of the year 2016 (exhibit No 3); 163 invoices in respect of the year 2017 (exhibit No 4) and 174 invoices in respect of the year 2018 (exhibits Nos 5, 5bis and 5tris);

–        42 invoices addressed to customers located in Spain in respect of orders made in the period 2014 to 2018 (exhibit No 6);

–        5 invoices addressed to customers located in France in respect of orders made in the period 2014 to 2018 (exhibit No 7).

77      Regarding that evidence, first, the applicant claims that the intervener has not sufficiently proved that the goods listed in those invoices were goods covered by the contested mark. According to the applicant, the intervener should have provided catalogues, price lists and photographs of goods bearing the contested mark which bore one of the references mentioned in the invoices provided or other means of evidence that could have allowed the references of the goods listed in the invoices to be cross-checked against the references of the goods covered by the contested mark. At the hearing, the applicant submitted that, considering that genuine use of the contested mark had been established on the basis of such invoices and there was no other evidence such as that referred to above, the Board of Appeal had departed from its decision-making practice in the decision of the First Board of Appeal of 22 July 2022 (Case R 1879/2021-1), which has been referred to in paragraph 15, fourth indent, above.

78      In that regard, it must be pointed out that, as stated by EUIPO, the mere fact that invoices do not include the mark at issue next to the name of each of the goods listed therein is not sufficient to deprive them of all relevance. The purpose of the invoices is to itemise the goods sold, so that the name of the item concerned must appear on the invoice, possibly together with a reference (judgment of 16 September 2013, Avery Dennison v OHIM – Dennison-Hesperia (AVERY DENNISON), T‑200/10, not published, EU:T:2013:467, paragraph 43; see also, judgment of 5 October 2017, Versace 19.69 Abbigliamento Sportivo v EUIPO – Gianni Versace (VERSACCINO), T‑337/16, not published, EU:T:2017:692, paragraph 43 and the case-law cited).

79      However, for such invoices to be capable of constituting relevant evidence of use of the contested mark in connection with the goods in respect of which it has been registered, they must actually concern those goods and it must be established that those goods bore the contested mark or, at least, that that mark was used, in accordance with its essential function, publicly and outwardly, for the purpose of selling those goods to consumers (see judgment of 5 October 2017, VERSACCINO, T‑337/16, not published, EU:T:2017:692, paragraph 44 and the case-law cited).

80      In that regard, first of all, it must be pointed out that, as the Board of Appeal stated in paragraph 58 of the contested decision, the many invoices in exhibits Nos 1 to 7, which date from the relevant period and concern sales made in three Member States (Spain, France and Italy), actually relate to ‘shirts’, that is to say, to goods in Class 25 in respect of which the contested mark was registered.

81      Furthermore, the intervener explained, before the Board of Appeal, in submitting additional exhibits Nos 7 to 9, that his predecessor in law’s business practice consisted of issuing separate invoices in respect of each of its product lines and that, in each invoice, the sign mentioned on the left-hand side in the header referred to all the goods mentioned on the invoice, whereas the particulars in the right-hand part corresponded to the trade name and the contact details of the intervener’s predecessor in law.

82      Consequently, the invoices submitted by the intervener, accompanied by the supplementary evidence which he provided in order to show the group’s business practice as regards the references appearing in those invoices and considered together with the other items of evidence provided by the intervener, such as the photograph and the printouts from the website (exhibit No 11 and additional exhibit No 1), were capable of enabling the Board of Appeal, in the context of the global assessment which has been referred to in paragraph 71 above, to make a link between the contested mark, which appeared on the top left-hand side of those documents, and all the goods listed in those invoices.

83      As regards the applicant’s argument that the intervener should have provided catalogues, price lists and photographs of goods bearing the contested mark which bore one of the references mentioned in the invoices provided or other means of evidence that could have allowed the references of the goods listed in the invoices to be cross-checked against the references of the goods covered by the contested mark, it must be pointed out that Article 10 of Delegated Regulation 2018/625 gives examples of acceptable evidence by referring to packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements and statements in writing. The proprietor of the contested mark cannot therefore be required, in all cases, to submit each of the items of evidence which are referred to as examples in that provision.

84      Lastly, it must be pointed out that the decision of the First Board of Appeal of 22 July 2022 (Case R 1879/2021-1), on which the applicant relies, does not make it possible to identify any decision-making practice of the Boards of Appeal of EUIPO which refuses to acknowledge that there has been genuine use of a mark if there are no items of evidence such as catalogues, price lists and photographs of the goods. The applicant has not mentioned the passage in that decision which could support such an argument. Furthermore, the fact that, in that case, the proprietor of the earlier mark provided invoices, but also other items of evidence, such as price lists and newspaper articles, in order to prove genuine use of its mark, does not make it possible to deduce from that decision that such items of evidence ought to be provided in each case. In any event, it must be pointed out that, according to the case-law, EUIPO is required to decide on the basis of the circumstances of each individual case, as it is not bound by previous decisions taken in other cases. The legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation 2017/1001 and not on the basis of any previous decision-making practice. Furthermore, in its review of legality, the Court is not bound by the decision-making practice of EUIPO (see judgment of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 39 and the case-law cited).

85      The applicant’s first claim must therefore be rejected.

86      Secondly, the applicant claims that the invoices regarding the Italian territory are mainly addressed to undertakings, and not to end consumers, and that they do not therefore prove that the goods which are listed in them were offered for sale to end consumers.

87      In that regard, it must be pointed out that genuine use of the mark presupposes that the mark is used publicly and outwardly, and not just within the undertaking concerned. The protection the mark confers and the consequences of registering it in terms of enforceability vis-à-vis third parties cannot continue to operate if the mark loses its commercial raison d’être, which is to create or preserve an outlet for the goods or services that bear the sign of which it is composed, as distinct from the goods or services of other undertakings. Use of the mark must therefore relate to goods or services already marketed or which are about to be marketed and for which preparations by the undertaking to secure customers are under way, particularly in the form of advertising campaigns. Such use may be either by the trade mark proprietor or by a third party with authority to use the mark (see, to that effect, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37).

88      However, outward use of a mark does not necessarily mean use aimed at end consumers. Genuine use of the mark relates to the market on which the proprietor of that mark pursues its commercial activities and on which it hopes to put its mark to use. Accordingly, taking the view that outward use of a mark, within the meaning of the case-law, must consist of use aimed at end consumers would effectively mean that marks used only in inter-corporate relations cannot enjoy the protection of Regulation 2017/1001. The relevant public to which marks are addressed does not comprise only end consumers, but also specialists, industrial customers and other professional users (see judgment of 10 November 2021, AC Milan v EUIPO – InterES (ACM 1899 AC MILAN), T‑353/20, not published, EU:T:2021:773, paragraph 26 and the case-law cited).

89      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 concerned and particularly at resellers. Thus, it cannot be ruled out, 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 69 above (judgment of 7 July 2016, Fruit of the Loom v EUIPO – Takko (FRUIT), T‑431/15, not published, EU:T:2016:395, paragraph 50).

90      It follows from the foregoing considerations that the invoices submitted as evidence of use of the contested mark which are directed at various undertakings established in Italy cannot be excluded merely because they are not addressed to end consumers.

91      The applicant’s second claim must therefore be rejected.

92      Thirdly, the applicant claims that the invoices relating to Spain are addressed to the same undertaking, Detecami SAU, an undertaking that forms part of the group of the intervener’s predecessor in law, which does not serve to show that there have been external sales.

93      EUIPO claims that the invoices addressed to Detecami cannot be disregarded. It submits that, according to the case-law, where goods are produced by the proprietor of a mark, but are subsequently placed on the market by distributors at wholesale or retail level, that practice must be considered to be use of the mark.

94      In that regard, it must be pointed out that the invoices provided with regard to the Spanish territory as exhibit No 6 are addressed to Detecami, a company which is part of the group of companies of the intervener’s predecessor in law, a point which is not disputed either by EUIPO or by the intervener.

95      It is apparent from the case-law relied on by EUIPO that invoices submitted by a party, which were addressed by it to a distribution company which is part of the same group and which appear to be authentic and honest, must not be disregarded where it is clear from the case file that the goods at issue, which are produced by the proprietor of the mark and invoiced by it to the distribution company at issue, are sold by that company on the market. That is a method of business organisation which is common in the course of trade, implying use of the mark which cannot be regarded as purely internal use by a group of companies, since the mark is also used outwardly and publicly. In such a context, the use of the mark of a production company by a distribution company which is economically linked to it is presumed to be use of that mark with the consent of the proprietor and is therefore to be deemed to constitute use by the proprietor, in accordance with Article 18(2) of Regulation 2017/1001 (judgments of 17 February 2011, J & F Participações v OHIM – Plusfood Wrexham (Friboi), T‑324/09, not published, EU:T:2011:47, paragraph 32, and of 5 March 2020, Dekoback v EUIPO – DecoPac (DECOPAC), T‑80/19, not published, EU:T:2020:81, paragraph 53).

96      As regards the evidence in the case file which serves to prove that the goods at issue are sold by the distribution company linked to the proprietor of the mark, the Court pointed out, in the judgment of 17 February 2011, Friboi (T‑324/09, not published, EU:T:2011:47, paragraph 32), that ‘the brochures show that the goods at issue, which are produced by the intervener and invoiced by it to the distribution company which is part of the same group, are sold by that company on the market’. In a similar vein, in the judgment of 5 March 2020, DECOPAC (T‑80/19, not published, EU:T:2020:81, paragraph 53), the Court pointed out the following:

‘The 78 invoices bearing the heading “DECOPAC” that DecoPac sent to Culpitt (exhibit 13, see paragraph 9 above) make it possible to deduce, in the light of the other items of evidence submitted, including the excerpts from Culpitt’s catalogues referred to in paragraph 52 above, the affidavits from the chief executive officer of DecoPac (exhibits 1, 25 and 26) and the photographs of packaging for edible and inedible decorations (exhibits 6, 21 and 22), that the goods concerned, which were delivered by DecoPac and invoiced by it to the distribution company that is part of the same group, are sold by that distribution company on the European Union market.’

97      In the present case, by contrast, as was confirmed by the intervener at the hearing, there is nothing in the case file that shows that sales of goods covered by the contested mark, which were manufactured by the intervener’s predecessor in law and invoiced by it to Detecami, were sold by Detecami on the market, thus implying use of the mark which cannot be regarded as purely internal use by a group of companies, since the mark is also used outwardly and publicly.

98      In the light of that finding, the Court holds that the applicant’s third claim is well founded, since the Board of Appeal erred as regards the assessment of the evidential value of the invoices concerning the sale of clothing which related to Spain.

99      It must also be pointed out that, before the Cancellation Division, the applicant submitted an investigators’ report that had been drawn up by an undertaking which had, inter alia, approached Detecami in Barcelona (Spain) and questioned one of its employees and also one of its representatives for central and north Spain in order to ascertain whether that company actually used the contested mark in connection with the sale of shirts.

100    In that report, it is, inter alia, stated that the employee questioned declared that the contested mark did not belong to them and that they did not sell goods bearing that mark; that the representative stated that he was aware of a trade mark CAMEL which was represented by an undertaking based in the Basque Country; that the employee and the representative both knew the mark and associated it with a casual style of clothing; that no reference to the contested mark was found on the company’s website, in the company’s profiles on social networks and in the catalogues and advertisements and on the clothing labels which were to be found at the company’s headquarters in Barcelona; and that the only reference to the sign CAMEL in the textile industry corresponds to the trade mark CAMEL ACTIVE, a German clothing brand which belongs to the applicant. The investigators’ report concludes that the mark CAMEL to which the two persons questioned referred is the mark CAMEL ACTIVE which belongs to the applicant, since no other proof could be collected in order to establish which CAMEL mark they were referring to.

101    In response, the intervener submitted additional exhibit No 6, in which the employee questioned stated, inter alia, that the words which she had spoken and which had been recorded in the investigators’ report submitted by the applicant had been taken out of context and that, as an employee of that company since September 1976 and the person in charge of the commercial management of the company’s clothing sector since June 2015, she had never personally had to deal with the marketing of the contested mark in Spain.

102    In that regard, it must be pointed out that the Board of Appeal stated, in paragraphs 72 and 73 of the contested decision, that it had taken into consideration that an overall assessment of the evidence had to be carried out taking into account all the relevant factors in the particular case and that, when making that assessment as to genuine use, it had to consider the evidence in its entirety and could not disregard some of it.

103    However, as is submitted by the applicant, the Board of Appeal did not state anywhere in the contested decision whether and how it had taken the investigators’ report into account, just as it also did not, in the context of its assessment of the evidence, examine the declaration which the intervener had submitted in response (additional exhibit No 6).

104    The Board of Appeal was, however, required to base its decision on all the matters of fact and of law which the parties had submitted during the proceedings (judgment of 6 June 2018, Uponor Innovation v EUIPO – Swep International (SMATRIX), T‑264/17, not published, EU:T:2018:329, paragraph 80).

105    On account of the continuity in terms of functions between the various departments of EUIPO, when the Boards of Appeal conduct the required review of decisions taken by the departments of EUIPO at first instance, they must base their decision on all the matters of fact and of law which the parties put forward either in the proceedings before the department which heard the application at first instance or in the appeal (see judgment of 26 March 2020, Armani v EUIPO – Asunción (le Sac 11), T‑654/18, not published, EU:T:2020:122, paragraph 22 and the case-law cited).

106    The Board of Appeal was therefore required to take into account the investigators’ report which had been relied on by the applicant and the doubt which that report was capable of casting on the evidence submitted by the intervener. That error means that the Board of Appeal failed to examine a factor which was potentially relevant in the global assessment of the evidence of use of the contested mark. All the invoices submitted in respect of Spain, of which there are 42, are addressed to Detecami. The investigators’ report was therefore capable of calling into question all the invoices which had been submitted in order to prove genuine use of the contested mark in Spain, invoices which are not, moreover, substantiated by any evidence in the case file which permits the inference that the goods in them, which were invoiced to Detecami by the intervener’s predecessor in law, were sold by Detecami on the market, as has been pointed out in paragraphs 94 to 98 above.

107    When questioned at the hearing on the issue of the Board of Appeal’s failure to take account of the investigators’ report in question, EUIPO relied on the judgment of 29 June 2022, bet-at-home.com Entertainment v EUIPO (bet-at-home) (T‑640/21, not published, EU:T:2022:408), in order to claim that the Board of Appeal was not required to mention that evidence in the contested decision.

108    However, the judgment of 29 June 2022, bet-at-home (T‑640/21, not published, EU:T:2022:408) does not make it possible to alter the conclusion which the Court has reached in paragraph 106 above.

109    It is true that, in the judgment of 29 June 2022, bet-at-home (T‑640/21, not published, EU:T:2022:408), the Court rejected the line of argument of the applicant in that case which claimed that the Board of Appeal had carried out an incomplete assessment of the facts, in spite of the fact that it had initially stated that the Board of Appeal had not expressly adopted a position on an argument which that party had put forward during the administrative proceedings, regarding the question of whether the figurative element in the mark applied for was capable of conferring distinctive character on that mark.

110    However, it was after pointing out, in paragraph 31 of the judgment of 29 June 2022, bet-at-home (T‑640/21, not published, EU:T:2022:408), that the facts of the case contained a series of indicia, indicia which do not feature in the present case, that the Court reached that conclusion.

111    First, the Court pointed out, in paragraphs 24, 25 and 29 of the judgment of 29 June 2022, bet-at-home (T‑640/21, not published, EU:T:2022:408), that the examiner had, in her decision, analysed the figurative element of the mark applied for, that the Board of Appeal had, in the summary of the grounds for the examiner’s decision, set out her position regarding that question, that the Board of Appeal had upheld the examiner’s decision in its entirety and that it had therefore implicitly confirmed the examiner’s position relating to the figurative element and rejected the applicant’s arguments challenging that position.

112    However, the same could not be true in the present case, as the Cancellation Division did not provide any assessment of the investigators’ report which had been submitted by the applicant. The Cancellation Division revoked the contested mark in its entirety, relying essentially, first, on the fact that the invoices submitted which only referred to the contested mark in their headers did not make it possible to establish that that mark had been used in conjunction with specific goods and, secondly, on the fact that the other evidence did not serve to prove that goods bearing the contested mark had actually been distributed or offered for sale. In the context of the appeal brought against that decision, the Board of Appeal partially annulled that decision as regards ‘shirts’ in Class 25, without referring to the investigators’ report.

113    Secondly, the Court pointed out, in paragraphs 26 and 27 of the judgment of 29 June 2022, bet-at-home (T‑640/21, not published, EU:T:2022:408), that the Board of Appeal had referred, in the summary of the applicant’s submissions, to all of the applicant’s arguments, including that relating to the figurative element of the mark, and that it had, moreover, referred, at the beginning of its own reasoning relating to the non-distinctiveness of the mark applied for, to the fact that that mark consisted, inter alia, of a green arc underlining the word elements ‘bet at home’. The Court added that that description of the mark applied for showed that the Board of Appeal had not disregarded the presence of the figurative element.

114    However, in the present case, the investigators’ report and the doubt which that report is capable of casting on the evidence submitted by the intervener are neither referred to in the contested decision nor examined by the Board of Appeal in its assessment of the relevant factors. Only the existence of additional exhibit No 6, namely the declaration by Detecami’s employee which the intervener submitted in response to the submission, by the applicant, of the investigators’ report, is referred to in paragraphs 9 and 32 of that decision.

115    Consequently, in the present case, in the light of the differences which have been identified, it cannot be held, as in the judgment of 29 June 2022, bet-at-home (T‑640/21, not published, EU:T:2022:408), that the Board of Appeal took the investigators’ report that had been submitted by the applicant into consideration and that it implicitly denied that it had any evidential value.

116    As regards the effect of the Board of Appeal’s errors on the legality of the contested decision, EUIPO submits that those errors concern only the invoices relating to Spain, with the result that they cannot, in any event, call into question the other invoices submitted regarding other clients located in other Member States, which, nevertheless, constitute the great majority of the invoices submitted by the intervener.

117    In that regard, it must be pointed out that, by not taking into consideration the investigators’ report submitted by the applicant, the Board of Appeal failed to examine a factor which is potentially relevant in the global assessment of the evidence of use of the contested mark (see paragraph 106 above) and, moreover, failed to do so in a context in which no other item of evidence provided by the intervener served to prove that sales of goods covered by the contested mark, which had been manufactured by the intervener’s predecessor in law and invoiced by that predecessor in law to Detecami, had been sold by Detecami on the market (see paragraph 97 above).

118    Where the Board of Appeal fails to examine a factor which is potentially relevant with regard to its assessment, the Court does not have all the information necessary in order to determine whether the global assessment carried out by the Board of Appeal in the contested decision was well founded (see judgment of 6 June 2018, SMATRIX, T‑264/17, not published, EU:T:2018:329, paragraph 84 and the case-law cited).

119    It cannot be ruled out that the examination of an item of evidence in the course of the proceedings before EUIPO could have led the Board of Appeal to adopt a decision with a content which is different from that of the contested decision (judgment of 6 June 2018, SMATRIX, T‑264/17, not published, EU:T:2018:329, paragraph 85).

120    It must be pointed out, in that context, that the territorial scope of the use is also one of the factors determining genuine use, which must be included in the overall analysis to be carried out by the Board of Appeal and examined at the same time as other such factors (see, to that effect, judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 76; of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 36; and of 7 November 2019, Intas Pharmaceuticals v EUIPO – Laboratorios Indas (INTAS), T‑380/18, EU:T:2019:782, paragraph 74). Consequently, the errors made by the Board of Appeal could be capable of calling its conclusion as regards the scope of the use into question.

121    In the light of those considerations, the Court holds that the Board of Appeal did not carry out an appropriate examination of all of the relevant factors and that the erroneous examination carried out by the Board of Appeal affects the contested decision and constitutes a sufficient basis for annulling it, without it being necessary to rule on the applicant’s other claims.

122    It follows that the applicant’s second plea must be upheld and the contested decision must be annulled.

 Costs

123    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay the costs which the applicant has incurred in the present proceedings, in accordance with the form of order sought by the applicant.

124    Furthermore, the applicant has claimed that EUIPO should be ordered to pay the costs relating to the proceedings before the Cancellation Division and the Board of Appeal. In that regard, it must be borne in mind that, pursuant to Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. That does not, however, apply to costs incurred for the purposes of the proceedings before the Cancellation Division. Accordingly, the applicant’s claim regarding the costs relating to the proceedings before the Cancellation Division, which do not constitute recoverable costs, is inadmissible. As regards the applicant’s claim relating to the costs of the proceedings before the Board of Appeal, it will be for the Board of Appeal to decide, in the light of the present judgment, on the costs relating to those proceedings (see, to that effect, judgment of 11 February 2020, Dalasa v EUIPO – Charité – Universitätsmedizin Berlin (charantea), T‑732/18, not published, EU:T:2020:43, paragraph 91 and the case-law cited).

125    In addition, in accordance with Article 138(3) of the Rules of Procedure, the intervener must bear his own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 July 2021 (Case R 1548/2020-1) in so far as it maintained the registration of the EU trade mark in respect of ‘shirts’;

2.      Orders EUIPO to bear its own costs and to pay those incurred by Worldwide Brands, Inc. Zweigniederlassung Deutschland in the course of the proceedings before the Court;

3.      Orders Mr Eric Guangyu Wan to bear the costs he has incurred in the course of the proceedings before the Court.

Delivered in open court in Luxembourg on 1 March 2023.

*      Language of the case: English.

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