30.1.2023

Official Journal of the European Union

C 35/56

(Case T-747/21) (*)

(EU trade mark - Revocation proceedings - EU word mark Fohlenelf - Genuine use of the mark - Article 58(1)(a), Article 94(1) and Article 97(1)(d) of Regulation (EU) 2017/1001)

(2023/C 35/67)

Language of the case: German

Parties

Applicant: Borussia VfL 1900 Mönchengladbach GmbH (Mönchengladbach, Germany) (represented by: R. Kitzberger, lawyer)

Defendant: European Union Intellectual Property Office (represented by: A. Söder and E. Nicolás Gómez, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: David Neng (Brüggen, Germany) (represented by: D. Breuer, lawyer)

Re:

By its action based on Article 263 TFEU, the applicant seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 September 2021 (Case R 2126/2020-4).

Operative part of the judgment

The Court:

1.Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 September 2021 (Case R 2126/2020-4) in so far as proof of genuine use of EU word mark Fohlenelf was rejected in relation to ‘soaps’ in Class 3, ‘self-adhesive films of paper or plastic, self-adhesive labels’ in Class 16, ‘porcelain and earthenware’ in Class 21, as well as in relation to ‘drinking bottles’, in so far as they constitute a subcategory of goods within ‘household or kitchen containers’ also in Class 21, ‘bath towels of textile’ in Class 24 and ‘games, toys’ in Class 28;

2.Dismisses the action as to the remainder;

3.Orders each party to bear its own costs.

* Language of the case: German.

(1) OJ C 37, 24.1.2022.