Eveready Battery Company v EUIPO - Hussain and Others (POWER EDGE) (Judgment) [2016] EUECJ T-824/14 (18 October 2016)

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(EU trade mark — Opposition proceedings — Application for the EU figurative mark POWER EDGE — Earlier EU word mark EDGE — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 15(1) and 42(2) of Regulation No 207/2009)

Eveready Battery Company, Inc., established in Saint-Louis, Missouri (United States), represented by N. Hebeis, lawyer,

European Union Intellectual Property Office (EUIPO), represented by J. Garrido Otaola and M. Fischer, acting as Agents,

the other parties to the proceedings before the Board of Appeal of EUIPO, interveners before the General Court, being

Imran Hussain, Rizwana Hussain, Maariah Hussain, Danyaal Hussain and Zahra Hussain, residing in Leeds (United Kingdom), represented by S. Malynicz, QC,

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 6 October 2014 (Case R 38/2014-2), relating to opposition proceedings between Eveready Battery Company and the Hussains,

composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,

having regard to the application lodged at the Registry of the General Court on 19 December 2014,

having regard to the response of EUIPO lodged at the Court Registry on 14 April 2015,

having regard to the response of the interveners lodged at the Court Registry on 4 April 2015,

1 On 17 May 2010, the interveners, Mr Imran Hussain, Ms Rizwana Hussain, Ms Maariah Hussain, Mr Danyaal Hussain and Ms Zahra Hussain, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

3 The goods in respect of which registration was sought are in Classes 3 and 8 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

– Class 3: ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’;

– Class 8: ‘Hand tools and implements (hand-operated); cutlery; side arms; razors’.

4 The EU trade mark application was published in Community Trade Marks Bulletin No 127/2010 of 13 July 2010.

5 On 13 October 2010, S.C. Johnson & Son, Inc. filed a notice of opposition pursuant to Article 41(1) of Regulation No 207/2009 to registration of the mark applied for in respect of the goods in Class 3 and in respect of the ‘razors’ in Class 8 referred to in paragraph 3 above. The opposition was based on the earlier EU word mark EDGE, registered on 2 July 1999 and covering goods in Class 3 corresponding to the following description: ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’. The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation No 207/2009.

6 On 15 October 2010, EUIPO was requested to register the application for a change in ownership of the earlier mark EDGE as a result of the acquisition of that mark by the applicant, Eveready Battery Company, Inc., from S.C. Johnson & Son.

7 Following an application from the interveners seeking that the applicant provide evidence of genuine use of the earlier mark, pursuant to Article 42(2) of Regulation No 207/2009, the applicant provided several documents as evidence of such use.

8 On 22 October 2013 the Opposition Division partially upheld the opposition in respect of the goods ‘soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’ in Class 3 and ‘razors’ in Class 8.

9 On 23 December 2013, the interveners filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division, in so far as it had upheld the opposition.

10 By decision of 6 October 2014 (‘the contested decision’), the Second Board of Appeal of EUIPO upheld the interveners’ appeal on the ground that the applicant had not established genuine use of the earlier mark within the meaning of Article 15(1) and Article 42(2) of Regulation No 207/2009. The Board of Appeal accordingly annulled the decision of the Opposition Division in so far it had upheld the applicant’s opposition.

14 In their response, the interveners stated that the application contained no summary of pleas in law on which it was based, as required by Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991. At the hearing, in response to a question put by the Court, the interveners specified that they were not disputing the admissibility of the action brought by the applicant. The stated that they had understood that the applicant was challenging the Board of Appeal’s assessment that the applicant had not established genuine use of its earlier mark.

15 In order for an action to be admissible in the light of the provision referred to above, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (see judgment of 31 May 2016, Jochen Schweizer v EUIPO (Du bist, was du erlebst.), T‑301/15, not published, EU:T:2016:324, paragraph 11 and the case-law cited therein). The statements in the application must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action (see, to that effect, judgment of 9 July 2010, Exalation v OHIM (Vektor-Lycopin), T‑85/08, EU:T:2010:303, paragraph 33 and the case-law cited therein). It is clear from point 43 et seq. of the application in the present case that the applicant contests that it did not establish genuine use of its earlier mark and of what the legal and factual particulars relied upon in support of its contestation consist. Consequently, the interveners could not legitimately challenge the admissibility of the applicant’s action on that basis and the applicant’s action must be declared admissible.

16 In support of its action, the applicant puts forward a single plea, alleging an erroneous assessment of the proof of genuine use of the earlier trade mark for the purposes of Article 15(1) and Article 42(2) of Regulation No 207/2009.

17 Pursuant to Article 42(2) of Regulation No 207/2009, if the applicant so requests, the proprietor of an earlier EU trade mark who has given notice of opposition is to furnish proof that, during the period of five years preceding the date of publication of the EU trade mark application, the earlier EU trade mark has been put to genuine use in the Union in connection with the goods or services in respect of which it is registered and which he cites as justification for his opposition. In the absence of proof to this effect, the opposition shall be rejected.

18 Article 15(1) of Regulation No 207/2009 provides that if, within a period of five years following registration, the proprietor has not put the EU trade mark to genuine use in the Union in connection with the goods or services in respect of which it is registered, the EU trade mark is to be subject to the sanctions provided for in that regulation.

19 Rule 22(3) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) provides that the evidence for the furnishing of proof of use is to consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods and services in respect of which it is registered and on which the opposition is based. Rule 22(4) provides that the evidence consisting of those indications is, in principle, to be confined to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing sworn or affirmed.

20 Furthermore, according to settled case-law, there is ‘genuine use’ of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether there is real commercial exploitation of the mark in the course of trade, particularly the usages regarded as warranted in the economic sector concerned as a means of maintaining or creating market share 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 (judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 70; 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 29 and 17 July 2014, Reber v OHIM, C‑141/13 P, not published, EU:C:2014:2089, paragraph 29). However, the assessment of whether an earlier mark has been put to genuine use cannot be confined to merely establishing that there has been use of the mark in the course of trade, since it must also constitute genuine use in accordance with the wording of Article 42(2) of Regulation No 207/2009. Moreover, whether a mark is deemed to have been put to ‘genuine use’ will depend on the characteristics of the goods or service concerned on the corresponding market. Therefore, not all established commercial exploitation can be automatically qualified as genuine use of the mark at issue (see, to that effect, judgment of 17 July 2014, Reber v OHIM, C‑141/13 P, not published, EU:C:2014:2089, paragraph 32).

21 It has also been stated in the case-law that it is apparent from Article 42(2) and (3) of Regulation No 207/2009, read in the light of recital 10 in the preamble to that regulation and Rule 22(3) of Regulation No 2868/95, that the ratio legis of the provision requiring that the earlier mark must have been put to genuine use if it is to be capable of being used in opposition to an EU trade-mark application is to restrict the number of conflicts between two marks, unless there is a good commercial justification for the lack of genuine use of the earlier mark deriving from active functioning of the mark on the market. However, the purpose of those provisions is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks (see judgment of 8 July 2004, Sunrider v OHIM — Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 38 and the case-law cited).

22 As to the extent of the use to which the earlier trade mark has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use. Furthermore, to examine whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. Lastly, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraphs 41 and 42, and 8 July 2004, MFE Marienfelde v OHIM — Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraphs 35 and 36).

23 In the present case, the trade mark application was published on 13 July 2010. Therefore, pursuant to Article 42(2) of Regulation No 207/2009, the relevant period for the purposes of proving genuine use extends from 13 July 2005 to 12 July 2010 and, in so far as the earlier mark is an EU mark, the relevant territory is that of the European Union.

24 The applicant, in order to prove genuine use of the mark in respect of the goods at issue, produced during the administrative proceedings a sworn statement, six invoices and clippings and pictures of labels and displays relating to EDGE shaving gels. In the contested decision, that evidence was considered insufficient to establish genuine use of the earlier mark.

25 So far as concerns the sworn statement, the Board of Appeal held that there was no document which could confirm the veracity of the statement, according to which the turnover figure for the period between July and December 2009 was approximately EUR 140 000 and the turnover figure for the period from January to June 2010 was approximately EUR 103 000. Moreover, in so far as it is stated in that statement that in total approximately 173 000 units of EDGE shaving gel were sold in Spain between 1 December 2009 and 30 September 2010, the Board of Appeal found that the amount of units was imprecise and that the number of units sold until July 2010, the end of the relevant period, was unknown. The Board of Appeal also stated that no data provided in the sworn statement had been corroborated by means of supplementary supporting documents and that no evidence had been produced (points 28 and 29 of the contested decision).

26 The applicant considers that those findings are erroneous. According to the applicant, the fact that the sworn statement covers the fiscal year closing on 30 September 2010 and thus a period beyond the end of the relevant period, which ends on 13 July 2010, does not permit the inference that the information cannot be taken into account. There is no reason to assume that from 14 July to 30 September 2010 substantially more units of gel were sold. It follows that the monthly sales during the final year amounted to approximately 14 000 items. It also submits that it is reasonable to assume that the quantity of EDGE shaving gel units sold from July 2009 to June 2010 does not differ substantially from that sold during the fiscal year from October 2009 to September 2010, as stated in the sworn statement.

27 In the light of those arguments, it must be observed that the Board of Appeal did not fail to take the information reproduced in the sworn statement into account. It nevertheless found that the amount of units sold was imprecise and that the number of units sold until July 2010, the end of the relevant period, was unknown. Both those findings are correct. The sworn statement in fact merely gives approximations and does not enable the precise number of units sold until July 2010 to be ascertained.

28 The applicant also submits that the total turnover of EUR 240 000 and the number of items sold, approximately 170 000 in respect of the last year of the relevant period, given in that statement are sufficiently large to assume that the use of the mark was genuine. It must be recalled in this connection, first, that even where a statement has been drawn up for the purposes of Article 78(1)(f) of Regulation No 207/2009 by one of the applicant’s managers, it cannot be attributed probative value unless it is corroborated by other evidence (see judgment of 13 June 2012, Süd-Chemie v OHIM — Byk-Cera (CERATIX), T‑312/11, not published, EU:T:2012:296, paragraph 30 and the case-law cited). That statement was made by a person acting in a capacity as the applicant’s ‘senior trademark officer’ and, for the reasons set out in paragraph 29 above, the turnover and number of items sold mentioned therein are not corroborated by other evidence. Secondly, pursuant to the case-law cited in paragraph 22 above, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned.

29 The applicant also submits that the Board of Appeal incorrectly stated that the veracity of the information in the sworn statement was not supported by the documents it had produced. It must be stated in this respect that none of the documents produced by the applicant can support the fact that, in respect of the period from July to December 2009, the turnover amounted to approximately EUR 140 000 and that, in respect of the period from January to June 2010, it amounted to approximately EUR 103 000. The fact that the statement merely refers to an approximation in respect of the annual turnover for 2010 indicates that the person who had made it did not have the accounts statements at her disposition and weakens the probative force of that statement. In addition, none of the documents produced by the applicant allows the number of units of EDGE shaving gel sold in Spain until 12 July 2010 to be ascertained. The invoices produced by the applicant mention only that 1872 units of shaving gel were sold and the applicant itself states in the application that those invoices do not give any direct information as to the total sales of EDGE shaving gel. Consequently, the applicant is incorrect to claim that the Board of Appeal erred in finding that the veracity of the information in the sworn statement was not supported by the documents it had produced.

30 As regards the invoices produced by the applicant, the Board of Appeal observed that those invoices correspond to only three months within the five-year period, namely November 2009 and January and February 2010, and, moreover, to only three months during the last eight months of the relevant period. It also stated that those invoices, the issue dates of which are very close together, show that the marketing period for the products referred to in them was particularly short, less than four months. In those circumstances, the Board of Appeal held that, although it might have been possible to take those invoices into account, the duration and the frequency of the use adduced did not support the conclusion that the products bearing the name of the earlier mark were marketed continuously over the relevant period. Therefore, the Board of Appeal found, the period of use demonstrated barely represented genuine use (paragraph 33 of the contested decision).

31 The applicant contests that assessment on the ground that the fact that the period of use was, if only barely, representative of genuine use should have led the Board of Appeal to uphold the opposition. In addition, it claims that it is wrong to consider that the marketing period established covers only four months. It is clear from the evidence in its entirety, including, inter alia, the sworn statement and pictures of points of sale, that the use covers the full last year of the five-year period.

32 These arguments must be rejected. By stating that the period of use which is demonstrated by those invoices was barely representative of genuine use, the Board of Appeal merely stated that the use of the mark during that period was not sufficiently representative to demonstrate genuine use. Thus, that use alone could not be sufficient to establish that there had been genuine use during the relevant period. In any event, on the basis of those invoices alone, namely three invoices dated 17 November 2009 drawn up for the sale of a total of 228 units, one invoice dated 18 November 2009 for the sale of 18 units, one invoice of 15 January 2010 for the sale of 6 units and one invoice of 19 February 2010 for the sale of a total of 1620 units, the Board of Appeal could not find genuine use of the earlier mark. Neither the quantity of units sold, nor the frequency of invoices or the duration of the marketing demonstrated by those invoices is sufficient to establish genuine use of that mark.

33 Next, the applicant is incorrect when it claims that the Board of Appeal erred in finding at point 33 of the contested decision that the marketing period established covers only four months. The Board of Appeal did not err when it held in that point that the marketing period for the goods referred to in the invoices at issue was less than four months. Those six invoices were issued between 17 November 2009 and 19 February 2010.

34 The applicant also submits that the Board of Appeal erred in finding, at point 34 of the contested decision, that the invoices produced give information on the ‘low’ total volume of sales of the product in question. It must nevertheless be stated that the Board of Appeal did not err in finding, on reading of four of the six invoices, that they showed a small amount given the nature of the goods at issue. Even though the number of units sold according to the four invoices in question is not 48 but 54, the Board of Appeal’s assessment that those four invoices showed a small amount given the nature of the goods at issue, remains valid.

35 Furthermore, contrary to what is submitted by the applicant, the Board of Appeal at point 34 of the contested decision did not add up the volume of sales of each of the six invoices and conclude that their sum represented the total sales. That argument is based on a misreading of the contested decision. The Board of Appeal held that the sales figures deduced from the six invoices relate only to part of the last year of the relevant five-year period and therefore that they are not conclusive. It also stated that, having regard to the relevant market, that use was limited in terms of quantity. On the one hand, it is true that the six invoices cover only a limited period (see paragraph 33 above), on the other hand, the number of units of shaving gel sold during that period, as established by those invoices, that is to say 1872 units, is not particularly high for a product such as shaving gel.

36 Moreover, the applicant criticises the Board of Appeal for finding, at point 34 of the contested decision, that in four of the six invoices produced the quantity of units sold was relatively small. It is apparent from the four invoices that the quantities sold were less than 20 units, which constitutes a small quantity. Although the small quantity at issue may, as the applicant argues, be explained by the fact that the customers were probably small points of sale making relatively low volumes of sales or show a just-in-time delivery system, the fact remains that those invoices do not prove the extent of the use of the earlier mark to the requisite standard. As the Board of Appeal correctly states, the low volume apparent from those invoices is not offset by any other evidence which might, in particular, show the frequency with which such invoices were issued over a representative period. Neither the approximations of the number of units sold over a period extending beyond the date of 12 July 2010 in the sworn statement nor the clippings and pictures of labels and displays prove the extent of the use of the mark at issue.

37 The applicant also submits that the Board of Appeal was wrong to find that, as the figures in the six invoices relate only to part of the last year of the relevant period, they cannot be conclusive. It submits that the fact that it was not able to start using the mark until after the acquisition of that mark in 2009 cannot be turned against it. According to the applicant, the fact that, for objective reasons, it was able to prove the genuine use to which the earlier mark had been put only in respect of the last year of the relevant period must be taken into consideration.

38 Having regard to those arguments, the Court observes first that the Board of Appeal did not criticise the applicant for not adducing proof of the use of the earlier mark relating to the period in which it was not the proprietor of that mark.

39 Moreover, it must be pointed out that, for the purposes of establishing genuine use, the fact that an earlier mark has changed proprietor during the relevant period does not change either the duration of that period or the duration of the use required to constitute genuine use.

40 A change in the proprietor of the earlier mark does not affect the obligation under Article 42(2) of Regulation No 207/2009 for that mark to have been put to genuine use during the relevant period of five years preceding the date of publication of the EU trade mark application. The particular circumstances of the current or previous proprietors of the trade mark are irrelevant for the purposes of assessing the use to which the mark has been put, since evidence of genuine use must establish that the trade mark was effectively present on the market concerned during the five-year period at issue, irrespective of who owned it during that period (see, by analogy, judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO AIRE), T‑156/01, EU:T:2003:198, paragraph 40).

41 A change in the proprietor of the earlier mark therefore does not constitute a proper reason for non-use of that mark. The concept of ‘proper reasons’ mentioned in Article 42(2) of Regulation No 207/2009 refers to circumstances unconnected with the proprietor of a trade mark which prevent him from using the mark (see judgment of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514). A change in the proprietor of a mark does not prevent its use by its successive owners.

42 Moreover, a change in the proprietor of the mark during the relevant period does not affect the requirement that the use of the earlier mark must be genuine. The proprietor of an earlier mark who opposes registration of a mark applied for on the grounds of a likelihood of confusion to whom a request under Article 42(2) of Regulation No 207/2009 is addressed must furnish proof of the genuine use of his earlier mark during the relevant period irrespective of the point at which he became the proprietor of that mark. He is not obliged to prove the continuous use of his mark during the relevant period, but, pursuant to the case-law cited in paragraphs 20 to 22 above, to establish in respect of that period that there was real commercial exploitation of that mark in the course of trade on the basis of a set of evidence concerning, inter alia, the duration, scale and frequency of its use. Thus, if the proprietor of the earlier mark claims that he used that mark only from a certain date during the relevant period, the assessment of the genuine use of that mark is conducted over the period from that date until the end of the relevant period (see, to that effect, judgment of 8 July 2004, HIPOVITON, T‑334/01, EU:T:2004:223, paragraph 41).

43 Next, inasmuch as the applicant submits that the six invoices represent a sufficiently long period during the year in which it was the proprietor of the earlier mark to prove genuine use of that mark, it must be held that the Board of Appeal did not err in holding that, given the figures of the goods sold apparent from the invoices at issue, a duration of four months was insufficient to conclude that there had been genuine use of the mark at issue. In the light of the goods at issue, those six invoices do not show a sufficient duration and frequency of the use of the mark at issue for that use to be described as genuine. The argument that the invoices at issue constitute a sample of all the invoices, selected at random, does not affect that finding. The applicant has not adduced any evidence enabling the total number of invoices issued for that period to be evaluated and has not shown that those invoices actually constitute a representative sample of the last part of the relevant period. The sworn statement cannot call into question that latter finding since it does not enable the total number of invoices issued or their representativity to be ascertained either. The turnover and sales figures set out in that statement are approximations and the six invoices and the other documents produced in the present case (see paragraph 29 above) are not such as to corroborate that statement’s contents.

44 According to the applicant, the Board of Appeal incorrectly stated, in point 36 of the contested decision, that the copies of product offerings for the EDGE shaving gel and the images of the points of sale in Spanish supermarkets did not establish either the place, or the duration or the extent of the use. According to the applicant, that evidence does indeed contain information on the geographical extent of the use since it shows that the product was put to use in various supermarkets, not only in one. Moreover, it submits, that statement shows that the Board of Appeal did not give sufficient consideration to the principle that the evidence must be considered as a whole.

45 It should be observed in this connection that the documents provided by the applicant contain a copy of an EDGE shaving-gel can label, extracts from leaflets containing offers for EDGE shaving-gel cans, to which the names of the outlets have been added, and photos of displays in which EDGE shaving-gel cans are stocked, to which captions stating inter alia that those images are from Spain have been added.

46 Contrary to what is maintained by the Board of Appeal, those documents contain information concerning the place in which the sales of the goods concerned took place. The Board of Appeal indeed itself states in point 36 of the contested decision that the applicant produced ‘some images of points of sale ... in Spanish supermarkets and [from] other Spanish suppliers of the product concerned’. Those images therefore indicate that those goods were sold in Spain.

47 On the other hand, the Board of Appeal correctly found that that evidence does not provide any information regarding the duration or the extent of the use of the goods at issue. Those copies and images are undated and do not prove the number of products marketed or duration of marketing.

48 Furthermore, in so far as the applicant alleges that the Board of Appeal failed to make an overall assessment of that evidence, the Court considers that the copy of the EDGE shaving-gel can label, the extracts from leaflets containing offers for EDGE shaving-gel cans and the photos of displays in which EDGE shaving-gel cans were stocked, taken together, do not give any information either as to the duration or the extent of the use of the goods at issue.

49 In addition, in so far as the applicant alleges that the Board of Appeal failed to assess as a whole the evidence it produced, namely the sworn statement, the six invoices and the copy of an EDGE shaving-gel can label, the extracts from leaflets containing offers for EDGE shaving-gel cans and photos of displays in which EDGE shaving-gel cans are stocked, it must be observed that at points 35 to 38 of the contested decision the Board of Appeal assessed that evidence as a whole and correctly concluded that the evidence produced by the applicant was insufficient to establish genuine use of the earlier mark.

50 As the Board of Appeal stated in point 37 of the contested decision, it was shown that the sale of the goods in question took place over a limited territory and was of a low volume whereas the product in question was an everyday consumer product. In addition, the period in respect of which the sales figures were actually established with precision was less than four months. The Board of Appeal also notes, without being challenged on that point by the applicant, that, having regard to the relatively low standard price of shaving goods in general — the cuttings produced by the applicant show, for example, a price range for the goods covered by the mark in question which goes from EUR 2.45 to EUR 3.89 — a significant volume of sales is usually needed in order to create and maintain an effective market share. The sworn statement produced by the applicant does not call that assessment into question, since the turnover and sales figures are approximations and are not supported by the other evidence put forward. In particular, the six invoices produced are insufficient to support the figures put forward in that statement.

51 As regards the applicant’s challenge as to the relevance of the judgment of 5 June 2014, European Drinks v OHIM — Alexandrion Grup Romania (Dracula Bite and DRACULA BITE) (T‑495/12 to T‑497/12, not published, EU:T:2014:423), to the present case, the Board of Appeal referred to that judgment in point 33 of the contested decision to support its assessment that it was not a matter of examining whether the earlier mark had been put to continuous use over the course of the relevant period, but of ensuring that it had been put to genuine use during that period, and more particularly of assessing whether the scale and frequency of the use of that mark was such as to demonstrate its presence on the market in an actual and consistent manner. That abstract assessment of the scope of the review of genuine use, set out in the abovementioned case-law and reproduced by the Board of Appeal, is correct. The Board of Appeal could therefore, without erring, state it in the contested decision.

52 Moreover, inasmuch as the applicant takes the view that the facts of the judgment of 5 June 2014, Dracula Bite and DRACULA BITE (T‑495/12 to T‑497/12, not published, EU:T:2014:423) are different to those of the present case, so that no analogy can be made with it, it must be stated that the Board of Appeal in the contested decision did not make any factual analogy between the present case and the case which gave rise to the judgment of 5 June 2014, Dracula Bite and DRACULA BITE (T‑495/12 to T‑497/12, not published, EU:T:2014:423), so the applicant’s argument is based on a false premise and must therefore be rejected.

53 In so far as the applicant submits that the evidence which it submitted in the present case is more probative than that produced in the case which gave rise to the judgment of 8 July 2004, VITAFRUIT (T‑203/02, EU:T:2004:225), in which the Court held that the genuine use of the mark at issue had been established to the sufficient legal standard, it must be recalled that each case is to be judged on its own merits. In addition, as EUIPO correctly states, the case which gave rise to the judgment of 8 July 2004, VITAFRUIT (T‑203/02, EU:T:2004:225) can be distinguished from the present case inasmuch as it was held that the invoices submitted enabled a finding that the products covered by them had been marketed relatively continuously over a period of more than eleven months, a period which was neither particularly short nor particularly close to the publication of the EU trade mark application. In the present case, the invoices show marketing for only a period of less than four months and the other evidence put forward does not enable a finding that there was continuous marketing over a longer period.

54 Lastly, inasmuch as the applicant takes the view that the Board of Appeal committed errors in referring to the ‘French speaking part of the relevant public’ in its summary of the Opposition Division’s decision, counted 1 332 units instead of 1 874 units in respect of the six invoices produced during the proceedings and 48 units instead of 56 units for four of the six invoices and referred to 1 668 units in respect of the Imprex invoice instead of 1 620 units, it must be held that the applicant itself describes those errors as minor. They may not, moreover, cast doubt on the assessment of the Board of Appeal that the applicant did not establish to the requisite standard genuine use of the earlier mark. Consequently, those errors are ineffective.

55 For all of the above reasons, the plea based on the infringement of Article 15(1) and Article 42(2) of Regulation No 207/2009 must be rejected and, consequently, the action in its entirety must be dismissed.

56 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.

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

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Eveready Battery Company v EUIPO - Hussain and Others (POWER EDGE) (Judgment) [2016] EUECJ T-824/14 (18 October 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T82414.html Cite as: ECLI:EU:T:2016:614, [2016] EUECJ T-824/14, EU:T:2016:614

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