14 January 2025 (*)

( Action for annulment – EU trade mark – Opposition proceedings – Application for EU figurative mark fluff – Earlier EU word mark FLUFF – Disregard of procedural requirements – Manifest inadmissibility )

In Case T‑170/24,

Ghost – Corporate Management SA,

applicant,

European Union Intellectual Property Office (EUIPO),

defendant,

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

Nacomi Group sp. z o.o.,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli, President, V. Tomljenović and L. Spangsberg Grønfeldt (Rapporteur), Judges,

Registrar: V. Di Bucci,

makes the following

By its action based on Article 263 TFEU, the applicant, Ghost – Corporate Management SA, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 January 2024 (Case R 1609/2023-2) (‘the contested decision’).

Background to the dispute

On 21 January 2020, the intervener, Nacomi Group sp. z o.o., filed an application for registration of an EU trade mark with EUIPO for the following figurative sign:

Following the restriction made in the course of the proceedings before EUIPO, the mark applied for covered goods in Class 3 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponding, in essence, to cosmetic products in that class.

On 24 April 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

The ground relied on in support of the opposition was that referred to in Article 8(1)(a) and (b) 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).

The opposition was based on the earlier EU trade mark No 10 940 666 for the word sign FLUFF, filed on 5 June 2012, registered on 16 November 2012 and duly renewed. The goods in respect of which the earlier mark is registered and on which the opposition is based are goods in Class 3 corresponding to the following description: ‘Preparations for perfumery, essential oils, cosmetics, hair lotions; Bleaching preparations and other substances for laundry use; Cleaning, polishing, scouring and abrasive preparations; Soaps; Dentifrices; Products and preparations for the cleaning, care, beautification and treatment of the skin; Toilet preparations, cosmetics and perfumery; Tissues impregnated with cosmetic lotions; Cloths or tissues impregnated with a skin cleanser; Cleaning wipes for infants.’

Following the request made by the intervener, EUIPO invited the applicant to furnish proof that the earlier mark has been put to genuine use in the European Union for the goods in respect of which it was registered and on which the opposition was based. The applicant replied to that request within the prescribed period.

On 1 June 2023, the Opposition Division rejected the opposition on the ground that there was no proof that the earlier mark had been put to genuine use within the meaning of Article 47(2) of Regulation 2017/1001 and Article 10(3) 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).

On 28 July 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

By the contested decision, the Board of Appeal dismissed the appeal.

The Board of Appeal first noted that, in accordance with Article 10(3) of Delegated Regulation 2018/625, the indications and evidence of use must establish the place, time, extent and nature of use of the opposing mark for the goods and services in respect of which it is registered and on which the opposition is based.

According to the Board of Appeal, even if all the documents produced by the applicant were taken into consideration, it is apparent, in any event, that proof of use of the earlier mark had not been furnished for the registered goods in Class 3 on which the opposition is based.

Thus, the Board of Appeal pointed out in that regard that the documents produced by the applicant refer to use for specific goods described as ‘training mats for animals’ or ‘underpads’, namely toilet mats/pads for young or incontinent pets, which are designed to absorb and neutralise moisture and odours. According to the Board of Appeal, those goods do not fall within Class 3, but should rather be regarded as ‘sanitary preparations for medical purposes’, namely ‘absorbent articles for personal hygiene’, covered by Class 5.

Consequently, inasmuch as the applicant had based its opposition on the earlier mark in so far as it covered the goods in Class 3 referred to in paragraph 6 above and as that list of goods could no longer be changed after the expiry of the opposition period, the Board of Appeal concluded that genuine use of the earlier mark had not been established.

Forms of order sought

The applicant claims that the Court should:

–annul the contested decision;

–reject the application for registration of the mark applied for;

–order EUIPO and the intervener to pay the costs, including those incurred for the purposes of the proceedings before the Board of Appeal.

EUIPO contends that the Court should:

–dismiss the application;

–order the applicant to pay EUIPO’s costs in the event that a hearing is to be held.

The intervener contends that the Court should:

–dismiss the application;

–order the applicant to pay the costs.

Law

Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court is of the opinion that it has sufficient information from the documents in the file and decides, pursuant to that article, to give judgment without taking further steps in the proceedings.

It must be borne in mind that, under Article 177(1)(d) of the Rules of Procedure, the application must contain the subject matter of the proceedings, the pleas in law and arguments relied on, and a brief summary of those pleas. Those particulars must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without other supporting information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself (see, to that effect, order of 5 May 2022, Aziz v EEAS, T‑789/21, not published, EU:T:2022:288, paragraph 5 and the case-law cited).

It follows that the applicant is required to set out in a sufficiently clear and precise manner the main elements on which its action is based, and the Court cannot be obliged, due to a lack of rigour on the part of the applicant, to reconstruct the legal structure intended to support the pleas and arguments relied on by bringing together various diffuse elements of the application or by seeking to adapt those elements to the content of the contested measure. To decide otherwise would be contrary to the principle of the sound administration of justice, to the principle that the subject matter of an action is delimited by the parties, and to the defendant’s rights of defence (see, by analogy, order of 5 May 2022, Aziz v EEAS, T‑789/21, not published, EU:T:2022:288, paragraph 6 and the case-law cited).

In the present case, although the application states that it seeks the annulment of the contested decision, a copy of which was only appended to the application following it being put in order upon the Registry’s request, pursuant to Article 177(6) of the Rules of Procedure, no reference is made, in the body of the application to the Board of Appeal, to any passage of the contested decision or to the reasoning set out therein for dismissing the appeal against the decision of the Opposition Division.

In that regard, it must be noted, as EUIPO and the intervener point out, that the arguments set out in the application merely reproduce, often verbatim, the arguments previously set out by the applicant before the Board of Appeal in its statement of 29 September 2023 stating the grounds of appeal against the decision of the Opposition Division.

As set out in paragraph 11 of the contested decision, the arguments put forward in that statement are based, in essence, first, on the lack of information given on the documents considered to be inconclusive and on the fact that almost all the documents contain information relating to sales volume (first and fourth indents of paragraph 10 of the contested decision); second, on the fact that, at the very least, documents 10, 12, 16 to 18, 21 and 22 should have been taken into account in order to demonstrate genuine use of the earlier mark; third, the fact that the documents not falling within the period of use would still have probative value; and, fourth, the fact that, under certain conditions, indirect or circumstantial evidence may also be suitable to demonstrate genuine use. Those four arguments constitute the four pleas in law in the application.

Furthermore, it is apparent from the contested decision that the Board of Appeal defined its position on the arguments put forward by the applicant in its statement of 29 September 2023 (see paragraphs 11 to 14 above). For the Board of Appeal, the reason for rejecting the opposition was no longer, as was apparent from the Opposition Division’s decision, within the question as to whether the documents provided by the applicant related to the relevant period of use, but in the fact that, even if all the documents provided were relevant as regards time, they still did not make it possible to establish genuine use in so far as they did not concern the goods in Class 3 on which the opposition is based, but goods unrelated to cosmetic products.

There is nothing in the present action to call into question the reasoning set out by the Board of Appeal in the contested decision for dismissing the appeal against the decision of the Opposition Division.

In such a situation, it is not for the General Court to attempt to deduce, from arguments to which the Board of Appeal responded in the contested decision, new pleas in law and arguments which may be submitted against the response given in the contested decision. Since the text of the application is neither coherent nor intelligible in that regard, it clearly does not satisfy the minimum requirements of Article 177(1)(d) of the Rules of Procedure as regards the setting out of the subject matter of the proceedings, the pleas in law and arguments relied on.

The present action must therefore be dismissed as manifestly inadmissible.

Costs

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.

Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as a hearing has not been organised, be ordered to bear its own costs.

On those grounds,

hereby orders:

1.The action is dismissed as manifestly inadmissible.

2.Ghost – Corporate Management SA shall pay the costs incurred by Nacomi Group sp. z o.o.

3.The European Union Intellectual Property Office (EUIPO) shall bear its own costs.

Luxembourg, 14 January 2025.

Registrar

President

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Language of the case: English.