CANCELLATION No 24 962 C (REVOCATION)

Overstappen.nl Holding B.V., Herengracht 440 D, 1017 BZ Amsterdam, Netherlands (applicant), represented by Landmark B.V., Nijverheidsweg-Noord 86c, 3812 PN Amersfoort, Netherlands (professional representative)

a g a i n s t

easyGroup Ltd, 10 Ansdell Street, Kensington, London W8 5BN, United Kingdom (EUTM proprietor), represented by Kilburn & Strode LLP, Laapersveld 75, 1213 VB, Hilversum, Netherlands (professional representative).

On 10/12/2019, the Cancellation Division takes the following

DECISION

1. The application for revocation is partially upheld.

2. The EUTM proprietor’s rights in respect of European Union trade mark No 1 232 909 are revoked as from 12/07/2018 for some of the contested goods and services, namely:

Class 3: Preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes; cosmetics; non-medicated toilet preparations; perfumes, fragrances, colognes and scents; soaps and cleaning preparations; shampoos, conditioners, moisturisers and rinses; tooth cleaning preparations; depilatory preparations; sun-screening and tanning preparations; anti-perspirants deodorisers and deodorants; cotton wool; essential oils; preparations and substances for use in massage and aromatherapy.

Class 9: Electric, electronic, communications, photographic, measuring, signalling, checking, scientific, optical, nautical, life-saving and surveying apparatus and instruments; computer software, hardware and firmware; computer games software; apparatus, instruments and media for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds, and images; audio and video recordings; audio recordings, video recordings, music, sounds images, text, publications, signals, software, information, data and code provided via telecommunications networks, by online delivery and by way of the internet and world wide web; sound and video recordings; sound and video recording and playback machines; coin freed apparatus; arcade games; televisions and television game apparatus and instruments; photographic and cinematographic films prepared for exhibition; photographic transparencies; non-printed publications; educational and teaching apparatus and instruments; electronic, magnetic and optical identity and membership cards; sunglasses and sunvisors; protective clothing and headgear; parts and fittings for all the aforesaid goods.

Class 16: Printed matter and publications; wrapping and packaging; books, manuals, pamphlets, newsletters, albums, newspapers, magazines and periodicals; tickets, vouchers, coupons and travel documents; identity cards; labels and tags; posters, postcards, calendars, diaries, photographs, gift cards and greeting cards; teaching and instructional materials.

Class 18: Leather and imitations of leather; goods made of leather or imitations of leather; skins and hides; trunks bags and travelling bags; purses, wallets, pouches and handbags; luggage; sports bags; bike bags; backpacks; umbrellas and parasols; harness and saddlery; parts and fittings for all the aforesaid goods.

Class 25: Clothing; headgear; footwear.

Class 29: Prepared meals; snacks and snack foods.

Class 30: Prepared meals; snacks and snack foods.

Class 32: Mineral and aerated waters; beers; non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

Class 33: Alcoholic drinks (except beer); wines, spirits, liqueurs and cocktails.

Class 34: Cigarettes, cigars, snuff, tobacco, tobacco products, smokers’ articles, lighters, matches.

Class 38: Provision of access to the internet; internet services.

Class 39: Transportation and storage; transportation of goods by land, sea and air; transportation of passengers and travellers by land and sea; shipping services; cargo and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; ambulance services; rental and hire of vehicles, boats and aircraft; travel agency and tourism services.

Class 41: Rental of electric and electronic goods, clothing, toys, games and playthings.

Class 42: Temporary accommodation; hotel, restaurant, cafe and bar services; hotel management and reservation services; non-business professional consultancy; providing facilities for exhibitions and conferences; meteorological information services; hairdressing; grooming and beauty salon services; physical, mental and emotional health-care and well-being services; counselling; nursery, kindergarten and creche; services consultancy, advice, assistance, analysis, design, evaluation and programming services relating to computer software, firmware, hardware and information technology; provision of access to computers; on-line services; consultancy and advice relating to the evaluation, choosing and implementation of computer software, firmware, hardware, information technology and of data-processing systems; rental and licensing of computer software, firmware and hardware; provision of information relating to technical matters, legal matters, information technology, and intellectual property, including that provided via telecommunications networks, by online delivery and by way of the internet and the World Wide Web.

3. The European Union trade mark remains registered for all the remaining services, namely:

Class 39: Transportation of passengers and travellers by air; airline services.

Class 42: Provision of food and drink; catering; consultancy and advice relating to travel services.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 1 232 909 ‘EASYJET’ (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 3: Preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes; cosmetics; non-medicated toilet preparations; perfumes, fragrances, colognes and scents; soaps and cleaning preparations; shampoos, conditioners, moisturisers and rinses; tooth cleaning preparations; depilatory preparations; sun-screening and tanning preparations; anti-perspirants deodorisers and deodorants; cotton wool; essential oils; preparations and substances for use in massage and aromatherapy.

Class 9: Electric, electronic, communications, photographic, measuring, signalling, checking, scientific, optical, nautical, life-saving and surveying apparatus and instruments; computer software, hardware and firmware; computer games software; apparatus, instruments and media for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds, and images; audio and video recordings; audio recordings, video recordings, music, sounds images, text, publications, signals, software, information, data and code provided via telecommunications networks, by online delivery and by way of the internet and world wide web; sound and video recordings; sound and video recording and playback machines; coin freed apparatus; arcade games; televisions and television game apparatus and instruments; photographic and cinematographic films prepared for exhibition; photographic transparencies; non-printed publications; educational and teaching apparatus and instruments; electronic, magnetic and optical identity and membership cards; sunglasses and sunvisors; protective clothing and headgear; parts and fittings for all the aforesaid goods.

Class 16: Printed matter and publications; wrapping and packaging; books, manuals, pamphlets, newsletters, albums, newspapers, magazines and periodicals; tickets, vouchers, coupons and travel documents; identity cards; labels and tags; posters, postcards, calendars, diaries, photographs, gift cards and greeting cards; teaching and instructional materials.

Class 18: Leather and imitations of leather; goods made of leather or imitations of leather; skins and hides; trunks bags and travelling bags; purses, wallets, pouches and handbags; luggage; sports bags; bike bags; backpacks; umbrellas and parasols; harness and saddlery; parts and fittings for all the aforesaid goods.

Class 25: Clothing; headgear; footwear.

Class 29: Prepared meals; snacks and snack foods.

Class 30: Prepared meals; snacks and snack foods.

Class 32: Mineral and aerated waters; beers; non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

Class 33: Alcoholic drinks (except beer); wines, spirits, liqueurs and cocktails.

Class 34: Cigarettes, cigars, snuff, tobacco, tobacco products, smokers’ articles, lighters, matches.

Class 38: Provision of access to the internet; internet services.

Class 39: Transportation and storage; transportation of goods, passengers and travellers by land, sea and air; airline and shipping services; cargo and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; ambulance services; rental and hire of vehicles, boats and aircraft; travel agency and tourism services.

Class 41: Rental of electric and electronic goods, clothing, toys, games and playthings.

Class 42: Temporary accommodation; provision of food and drink; catering; hotel, restaurant, cafe and bar services; hotel management and reservation services; non-business professional consultancy; providing facilities for exhibitions and conferences; meteorological information services; hairdressing; grooming and beauty salon services; physical, mental and emotional health-care and well-being services; counselling; nursery, kindergarten and creche; services consultancy, advice, assistance, analysis, design, evaluation and programming services relating to computer software, firmware, hardware and information technology; provision of access to computers; on-line services; consultancy and advice relating to the evaluation, choosing and implementation of computer software, firmware, hardware, information technology and of data-processing systems; rental and licensing of computer software, firmware and hardware; provision of information relating to technical matters, legal matters, information technology, and intellectual property, including that provided via telecommunications networks, by online delivery and by way of the internet and the World Wide Web; consultancy and advice relating to travel services.

The applicant invoked Article 58(1)(a) EUTMR.

GROUNDS FOR THE DECISION

According to Article 58(1)(a) EUTMR, the rights of the proprietor of the European Union trade mark will be revoked on application to the Office, if, within a continuous period of five years, the trade mark has not been put to genuine use in the Union for the goods or services for which it is registered, and there are no proper reasons for non-use.

Genuine use of a trade mark exists 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 requires actual use on the market of the registered goods and services and does not include token use for the sole purpose of preserving the rights conferred by the mark, nor use which is solely internal (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, in particular § 35-37, 43).

When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a market share for the goods or services protected by the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 38). However, the purpose of the provision requiring that the earlier mark must have been genuinely used ‘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’ (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 38).

According to Article 19(1) EUTMDR in conjunction with Article 10(3) EUTMDR, the indications and evidence of use must establish the place, time, extent and nature of use of the contested trade mark for the goods and/or services for which it is registered.

In revocation proceedings based on the grounds of non-use, the burden of proof lies with the EUTM proprietor as the applicant cannot be expected to prove a negative fact, namely that the mark has not been used during a continuous period of five years. Therefore, it is the EUTM proprietor who must prove genuine use within the European Union, or submit proper reasons for non-use.

In the present case, the EUTM was registered on 25/09/2002. The revocation request was filed on 12/07/2018. Therefore, the EUTM had been registered for more than five years at the date of the filing of the request. The EUTM proprietor had to prove genuine use of the contested EUTM during the five-year period preceding the date of the revocation request, that is, from 12/07/2013 to 11/07/2018 inclusive, for the contested goods and services listed in the section ‘Reasons’ above.

Arguments and evidence submitted by the parties

• The EUTM proprietor puts forward that the company EasyJet was established in 1995 and is a well-known airline that operates throughout Europe.

• According to the proprietor, the 2016 results highlight that EasyJet’s award-winning app had been downloaded 18.3 million times, evidencing their operation and provision of an app and use of the EasyJet mark in relation to computer software. The proprietor states that further evidence of EasyJet’s use of the mark in relation to computer software in Class 9 can be seen at exhibit 15, which demonstrates evidence of EasyJet’s mobile app from 13/09/2014 to 12/03/2018, and exhibit 7, which provides further details on downloads of the app. EasyJet offers electronic boarding cards as well as physical boarding cards.

• Exhibit 2 demonstrates EasyJet’s share price over the last five years, downloaded from the London Stock Exchange webpage and https://corporate.easyjet.com/investors/share-price.

• Exhibit 3 demonstrates awards that EasyJet has received during the relevant period, including ‘Europe’s Leading Low Cost Airline’ in 2013 and 2014. In order to win these awards, EasyJet clearly had to be an operating airline in Europe in 2013 and 2014. The information in this document was downloaded from:

• www.worldtravelawards.com

• https://corporate.easyjet.com/investors/awards

• Exhibit 4 contains an extract from https://en.wikipedia.org/wiki/EasyJet, dated 12/04/2017, and an article from a webpage, dated 21/03/2018, which demonstrates that EasyJet has 28 bases across Europe and was the second largest airline in Europe in 2014 and fifth largest airline in Europe in 2017.

• Exhibit 5 mentions the number of passengers uplifted by EasyJet, resulting in almost 6 million in July 2013 to almost 8 million in June 2018. The information was downloaded from:

• www.statista.com

• https://corporate.easyjet.com/investors/trafficstatistics

Overall in 2017, EasyJet transported 68 million passengers, which was the most uplifted by any UK airline. According to the proprietor, each of these 68 million passengers were issued with travel documents, a ticket and boarding cards and this constitutes use in relation to goods in Class 16 (tickets, vouchers, coupons and travel documents).

• Exhibit 6 contains route maps, dated 09/01/2015, 09/01/2016, 02/02/2017 and 14/03/2018, which were downloaded from www.easyjet.com, and which demonstrate the company’s operation across Europe.

• Exhibit 7 contains downloads from EasyJet’s website, dated 30/10/2015, 06/09/2016, 18/09/2017 and 22/09/2017, press releases, annual reports, shareholder presentations, examples of the EasyJet Bistro and Boutique Magazines and photographs of toy airplanes and luggage tags, all of which demonstrate, according to the proprietor, that EasyJet provides and sells food and drink including prepared meals such as baguettes, snacks, waters, soft drinks, hot beverages such as teas and coffees and wines and spirits (goods in Classes 29, 30, 32 and 33) and catering and provision of food and drink services in Class 42.

According to the proprietor, a range of cosmetics, perfumes, sunglasses, small electronic goods (e.g. headphones and chargers), toys (e.g. bears and planes), luggage tags and small leather goods (e.g. purses) are also available on board the proprietor’s planes (goods and services in Classes 3, 9, 18 and 41). According to the proprietor, these also demonstrate use in relation to non-printed publications in Class 9 and printed publications in Class 16, as these magazines are available online as well as provided in hard copy to each of their 68 million passengers a year (in 2017). Moreover, according to the proprietor, this exhibit demonstrates that customers are able to purchase bistro vouchers, which demonstrates the use of the mark in relation to vouchers and coupons in Class 16.

• Exhibit 8 contains issues of EasyJet’s Traveller magazine, dating back to August 2013. According to the proprietor, as this magazine is available to the company’s 7.2 million passengers a month, who are travelling on their flights across the EU, this is evidence of the use of the mark EASYJET in relation to their goods in Class 16.

• Exhibit 9 contains an article called Incorporatewear, dated 29/06/2017, with details about the award winning uniform, which is worn by all member of EasyJet crew. According to the proprietor, this is evidence of use of goods in Class 25.

• Exhibit 10 contains a selection of extracts from the company’s website, dated 27/06/2014, 16/04/2015, 21/04/2016, 28/04/2017 and 01/05/2017, with EasyJet’s travel guides for countries across the EU and which, according to the proprietor, constitute evidence of use for goods in Class 16 including manuals, travel agency, tourism services in Class 39 and advice relating to travel services in Class 42.

• Exhibit 11 contains Wayback Machine screenshots of the company’s homepage, dated 29/09/2013, 13/11/2014, 15/11/2015, 15/11/2016, 01/07/2017 and 12/05/2018. The proprietor puts forward that, because this website is accessible to consumers across the EU, it proves use of the mark in relation to their services in Classes 39 and 42, including transportation and airline services, arranging, operating and providing facilities for cruises, tours, excursions and vacations, rental and hire of vehicles, travel agency and tourism services, temporary accommodation services and hotel reservation services. Further evidence can be found at exhibit 7 in relation to cars and hotel bookings.

• Exhibit 12 contains Wayback Machine screenshots showing holiday booking function on www.easyjet.com, dated between 17/07/2013 and 22/03/2018, and which, according to the proprietor, demonstrate use of the mark in relation to the services in Classes 39 and 42, including transportation, airline services, arranging, operating and providing facilities for cruises, tours, excursions and vacations, travel agency and tourism services, temporary accommodation, hotel services and hotel reservation services.

• Exhibit 13 contains Wayback Machine screenshots from www.easyjet.com, dated 29/09/2013, 12/11/2016 and 03/10/2017. The proprietor puts forward that, as they demonstrate the ability to book accommodation on the company’s website, it shows use of the mark in relation to temporary accommodation, hotel services and hotel reservation services in Class 42 as well as travel agency services in Class 39.

• Exhibit 14 contains Wayback Machine screenshots showing the car rental function on www.easyjet.com and www.cars.easyjet.com, dated 29/09/2013, 01/04/2015, 10/04/2016, 03/10/2016, 07/07/2017 and 03/10/2017 and which, according to the owner, demonstrate use of the mark in relation to rental and hire of vehicles in Class 39.

According to the owner, exhibit 16 contains evidence of use in relation to arranging, operating and providing facilities for cruises, tours, excursions and vacations in Class 39, through the operation of https://activities.easyjet.com.

• Exhibit 17 contains a photograph and an extract from https://plus.easyjet.com, dated 14/11/2016, which, according to the proprietor, demonstrate use of the mark in relation to identity cards in Class 16 through their EasyJet Plus cards.

The applicant argues that convincing evidence of use has only been submitted for some services, as the documents relating to the rest of the goods and services either show different trade marks, or do not fall under the relevant period or were not ‘used to create an outlet’ for the goods and services in question.

In its last observations, the EUTM proprietor specifies that the evidence clearly shows use of transportation of goods, passengers and travellers by air; airline services in Class 39, and refers back to its prior observations in relation to the proof of use for the rest of the goods and services, stating that proof of use for all of them has been submitted.

Assessment of genuine use

Nature of use requires, inter alia, that the contested European Union trade mark is used as a trade mark, that is, for identifying origin, thus making it possible for the relevant public to distinguish between goods and services of different providers. Moreover, Article 58(1)(a) EUTMR and Article 10(3) EUTMDR require that the EUTM proprietor proves genuine use for the contested goods and services for which the European Union trade mark is registered.

The proprietor does not comment on the use of goods in Class 34 and services in Class 41, nor has it provided evidence for them. Furthermore, though the proprietor alleges having sold toys (e.g. planes and teddy bears) in its flights, as the applicant rightly contends these goods are classified in Class 28 of the Nice Classification, and the contested mark does not protect these goods, nor its retail, and, as the proprietor has not proved that it actually rents them, no use can be acknowledged for the rental of the goods in Class 41 either.

It becomes apparent from the documents submitted that the applicant is a well-known and successful airline company and, in connection with transportation of passengers and travellers by air, airline services in Class 39 and provision of food and drink; catering services, consultancy and advice relating to travel services in Class 42, the evidence supports the proprietor’s allegations that it uses all these services given that the company has 28 bases across Europe, it transported 68 million passengers in 2017 and it operates across a number of countries in the European Union. Further important information in this regard is that the company was rated the second largest airline in Europe in 2014 and the fifth largest airline in Europe in 2017, aside from meriting other awards (some of them specific to the provision of food and drink and catering, e.g. Food and Travel Reader Awards 2015), and it is included in the London Stock Market (inter alia, exhibits 1-5). Consequently, given all the direct and indirect evidence provided for these services in the documents submitted, it is obvious that the parameters of time, place and extent have been amply proved in relation to them.

‘Nature of use’ in the context of Article 10(3) EUTMDR further requires evidence of use of the mark as registered, or of a variation thereof which, pursuant to Article 18(1)(a) EUTMR, does not alter the distinctive character of the contested European Union trade mark. The mark was registered as a word mark, and in this regard account must be taken of the fact that the protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the individual graphic or stylistic characteristics which that mark might possess (22/05/2008, T‑254/06, RadioCom, EU:T:2008:165, § 43).

The mark has been used as , a variation that in no way alters the distinctive character of the mark as registered (‘EASYJET’), as the only differences are the depiction of two colours (and not a very special combination either, as one colour is seen in the background and another one is in the letters), and the letter ‘J’ being used in upper case, a fact that, as seen above, is immaterial given that the contested mark was registered as a word mark.

Therefore, the genuine use for the transportation of passengers and travellers by air, airline services (Class 39); consultancy and advice relating to travel services and provision of food and drink; catering services (Class 42) has been proved.

The proprietor argues that use of the contested mark has also been demonstrated for a number of goods as the company sells them in the course of the flights they operate: cosmetics and perfumes in Class 3, some goods in Class 9 such as glasses, some others such as leather goods in Class 18 or goods in relation to food and drink in Classes 29, 30, 32 and 33 (exhibit 6).

However, as seen in the evidence, the goods bear other trade marks different from the contested ones in these proceedings: , , , , , , , , , .

In relation to goods in Class 25 (exhibit 9), it is clear that the crews/staff of this airline company, as it is common in their field, wear a specific uniform. However, no matter how distinctive this outfit might be or the awards it might have won, EasyJet does not trade in clothing, nor does clothing appear on the market with the contested mark for customers to purchase, and there is no evidence that the mark has been affixed to the goods with the intention to establish and/or maintain an outlet for those goods in the relevant territory (09/12/2008, C‑442/07, Radetzky, EU:C:2008:696, § 17; 09/09/2011, T‑289/09, Omnicare Clinical Research, EU:T:2011:452, § 67-68). Consequently, there is no proof of genuine use for the goods in Class 25.

The same can be said about services of telecommunication in Class 38. The EUTM proprietor is not providing access to the internet; internet services as a service. Even if the webpage of the company was accessed 500 million times in 2015, as the proprietor argues, it is clear that EasyJet is not an internet provider just because it runs a webpage where its flights are advertised and subsequently sold/bought. In other words, the proprietor merely makes use of a telecommunication service developed by a third party to trade in what is actually its core business and, consequently, there is no proof of genuine use for the services in Class 38 (26/01/2018, R 890/2017‑5, Auto Bild (fig.), § 60).

The EUTM proprietor points out that, given that it offers their customers the possibility to read a magazine during the trip, or to learn about their destination, either by means of articles published in this magazine, or through the route maps and travel guides they offer online (or through their app), and because they issue the passengers with tickets, vouchers, identity cards, boarding cards, etc., the company is using the contested mark for various goods in Classes 9 and 16. Furthermore, the proprietor contends that, as EasyJet runs a webpage where passengers are provided with information about travel, cruises, tours and excursions and because through this webpage (or other platforms) the passengers can rent a car or find accommodation, for example, the mark is also being used for many services in Classes 39 and 42. The proprietor does not make any specific statements in relation to the services of transportation of goods by air.

In the documents submitted (inter alia, extracts from the company’s website as well as screenshots retrieved through the Wayback Machine tool), there are a number of photographs with the mark on goods such as boarding cards, vouchers, coupons and tags for luggage, for example, all goods in Class 16, or some goods in Class 9 such as non-printed publications and electronic boarding passes. However, the company is not affixing the mark to these goods to provide them independently of its airline services, but as part and parcel of them, just like any other airline, and does not trade in these goods in the market for third parties. Furthermore, in relation to some services in Classes 39 and 42 such as rental of cars, or arranging of cruises, or some other services connected with travel and tourism, the data found in the documents prove that the services as such are provided by third party companies (e.g. Europcar for rental of cars and Booking.com for temporary accommodation. In the latter respect refer to the documents provided for ‘Results of the company’ in exhibit 1). What the proprietor actually does is to provide consultancy and advice relating to travel services in Class 42, a fact that has been acknowledged above.

Regarding hotel reservation services, the company’s web allows EasyJet customers to book a hotel, but this is carried out as a mere ancillary service, and only once the customers have booked a flight. Furthermore, there is no evidence in relation to transportation of goods by air, and the transportation of the passenger’s luggage is a service merely ancillary to the transportation of passengers itself. In other words, there is no evidence of the proprietor transporting other goods by air for third parties and independently of the transportation of the passengers.

The proprietor refers specifically to exhibits 7 and 15 regarding the software in the form of an app (Class 9). There is information in relation to customers having the possibility to download this app for free in order to manage all circumstances relating to their flight, an act that is becoming common place nowadays in relation to many companies in different fields. However, no matter the awards that this app might have merited, nor the extraordinary number of times that it might have been downloaded, it is obvious that the offer of all this good is merely ancillary to the purchase of the flight ticket, and it becomes evident through the documents submitted that the proprietor is not trading in this good on the market independently of their passenger transportation services for third parties, but as part and parcel of them. In other words, the use is not genuine in the sense that the company is not a software developer and does not put its app on the market with the intention to establish and/or maintain an outlet for these goods in the relevant territory. What EasyJet is doing, solely, is to make their flight offer more complete and attractive, and readily available to its customers.

But even if the arguments mentioned above did not apply, there is a lack of specific and unambiguous information in relation to the extent of use of the mark in connection with the goods in Classes 9 and 16 as well as the services in Classes 39 and 42 mentioned above, given that everything indicates this line of business merely corresponds to either goods/activities ancillary to their core business or to commissions perceived from third companies for the retail of their goods or the offering of their services. The revenue mentioned in the annual reports is not broken down per product/service and the rest of the documents, even when evaluated in conjunction with each other, are not unambiguous in this sense.

In connection with this, it must be clarified, first, that 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 effective and sufficient use of the trade mark on the market concerned (18/01/2011, T‑382/08, Vogue, EU:T:2011:9, § 22). Secondly, the requirement to prove the genuine use of a mark in terms of nature of the use, the time, place and extent of use are cumulative (05/10/2010, T‑92/09, STRATEGI/ Stratégies, EU:T:2010:424, § 43), which means that the applicant is obliged not only to indicate but also to prove each of these requirements.

Conclusion

It follows from the above that the EUTM proprietor has not proven genuine use of the EUTM for the following goods and services, for which it must, therefore, be revoked, namely:

Class 3: Preparations and substances for use in the care and appearance of the hair, scalp, lips, face, skin, teeth, nails and eyes; cosmetics; non-medicated toilet preparations; perfumes, fragrances, colognes and scents; soaps and cleaning preparations; shampoos, conditioners, moisturisers and rinses; tooth cleaning preparations; depilatory preparations; sun-screening and tanning preparations; anti-perspirants deodorisers and deodorants; cotton wool; essential oils; preparations and substances for use in massage and aromatherapy.

Class 9: Electric, electronic, communications, photographic, measuring, signalling, checking, scientific, optical, nautical, life-saving and surveying apparatus and instruments; computer software, hardware and firmware; computer games software; apparatus, instruments and media for recording, reproducing, carrying, storing, processing, manipulating, transmitting, broadcasting and retrieving publications, text, signals, software, information, data, code, sounds, and images; audio and video recordings; audio recordings, video recordings, music, sounds images, text, publications, signals, software, information, data and code provided via telecommunications networks, by online delivery and by way of the internet and world wide web; sound and video recordings; sound and video recording and playback machines; coin freed apparatus; arcade games; televisions and television game apparatus and instruments; photographic and cinematographic films prepared for exhibition; photographic transparencies; non-printed publications; educational and teaching apparatus and instruments; electronic, magnetic and optical identity and membership cards; sunglasses and sunvisors; protective clothing and headgear; parts and fittings for all the aforesaid goods.

Class 16: Printed matter and publications; wrapping and packaging; books, manuals, pamphlets, newsletters, albums, newspapers, magazines and periodicals; tickets, vouchers, coupons and travel documents; identity cards; labels and tags; posters, postcards, calendars, diaries, photographs, gift cards and greeting cards; teaching and instructional materials.

Class 18: Leather and imitations of leather; goods made of leather or imitations of leather; skins and hides; trunks bags and travelling bags; purses, wallets, pouches and handbags; luggage; sports bags; bike bags; backpacks; umbrellas and parasols; harness and saddlery; parts and fittings for all the aforesaid goods.

Class 25: Clothing; headgear; footwear.

Class 29: Prepared meals; snacks and snack foods.

Class 30: Prepared meals; snacks and snack foods.

Class 32: Mineral and aerated waters; beers; non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages.

Class 33: Alcoholic drinks (except beer); wines, spirits, liqueurs and cocktails.

Class 34: Cigarettes, cigars, snuff, tobacco, tobacco products, smokers’ articles, lighters, matches.

Class 38: Provision of access to the internet; internet services.

Class 39: Transportation and storage; transportation of goods by land, sea and air; transportation of passengers and travellers by land and sea; shipping services; cargo and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; ambulance services; rental and hire of vehicles, boats and aircraft; travel agency and tourism services.

Class 41: Rental of electric and electronic goods, clothing, toys, games and playthings.

Class 42: Temporary accommodation; hotel, restaurant, cafe and bar services; hotel management and reservation services; non-business professional consultancy; providing facilities for exhibitions and conferences; meteorological information services; hairdressing; grooming and beauty salon services; physical, mental and emotional health-care and well-being services; counselling; nursery, kindergarten and creche; services consultancy, advice, assistance, analysis, design, evaluation and programming services relating to computer software, firmware, hardware and information technology; provision of access to computers; on-line services; consultancy and advice relating to the evaluation, choosing and implementation of computer software, firmware, hardware, information technology and of data-processing systems; rental and licensing of computer software, firmware and hardware; provision of information relating to technical matters, legal matters, information technology, and intellectual property, including that provided via telecommunications networks, by online delivery and by way of the internet and the World Wide Web.

The EUTM proprietor has proven genuine use for the remaining contested services: transportation of passengers and travellers by air; airline services in Class 39; providing of food and drink, catering, consultancy and advice relating to travel services in Class 42. Therefore, the application is not successful in this respect.

According to Article 62(1) EUTMR, the revocation will take effect from the date of the application for revocation, that is, as of 12/07/2018.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. According to Article 109(2) EUTMR, where each party succeeds on some heads and fails on others, or if reasons of equity so dictate, the Cancellation Division will decide a different apportionment of costs.

Since the cancellation is successful only for part of the contested goods and services, both parties have succeeded on some heads and failed on others. Consequently, each party has to bear its own costs.

The Cancellation Division

Ioana MOISESCU

María Belén IBARRA DE DIEGO

Richard BIANCHI

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.