CANCELLATION No 19326 C (REVOCATION)

Fashion Energy S.r.l., Via Zezon 4, 20124 Milano, Italy (applicant), represented by Ipser S.R.L., Via Macedonio Melloni, 32, 20129 Milano, Italy (professional representative)

a g a i n s t

Retail Royalty Company Corporation, 101 Convention Center Drive Suite 850, Las Vegas, Nevada 89109, United States of America (EUTM proprietor), represented by D Young & Co LLP, Theatinerstraße 11, 80333 München, Germany (professional representative).

On 10/10/2019, 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 5 066 113 are revoked as from 19/01/2018 for some of the contested goods and services, namely:

Class 3: After-shave lotions, non-medicated lip balm, bath oil, bath powder, non-medicated bath salts, bubble bath, beauty masks, body cream, body oil, body powder, cosmetic pencils, hand cream, eye cream, night cream, shaving cream, skin cleansing cream, skin cream, deodorant soap, personal deodorants, antiperspirants, and combination deodorants/antiperspirants, emery boards, essential oils for personal use, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils, eyeliners, face powder, facial scrubs, foundation makeup, bath gel, shaving gel, shower gel, lip gloss, lipstick, hair conditioners, hair gel, hair rinses, hair spray, skin lotion, facial lotion, body lotion, makeup, facial makeup, mascara, massage oil, skin moisturizer, nail enamel, nail polish, rouge, sachets, hair shampoo, shaving balm, shaving lotion, skin cleansing lotion, skin soap, skin tonners, liquid soaps for hand, face, and body, and cosmetics, including compacts.

Class 18: Athletic bags, all-purpose athletic bags, all-purpose sports bags, backpacks, barrel bags, beach bags, book bags, clutch bags, duffel bags, gym bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, clutch purses, coin purses, drawstring pouches, waist packs, knapsacks, luggage, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases.

Class 25: Robes; ski pants and ski jackets, snowboarding pants and jackets; footwear, namely, slippers, rubber boots, insoles, clogs and slides and hosiery; athletic footwear, namely, athletic shoes, trail and hiking shoes and boots and roller skates; headwear, namely hats (except caps), hoods, visor, sun visors, babushkas, wrist sweatbands; headscarves, berets.

Class 35: Retail store services, electronic retail commerce over the Internet/worldwide web, catalogue retail sales, mail order and phone order retail services, all for a wide range of after-shave lotions, non-medicated lip balm, bath oil, bath powder, non-medicated bath salts, bubble bath, beauty masks, body cream, body oil, body powder, cologne, perfume, toilet water, cosmetic pencils, hand cream, eye cream, night cream, shaving cream, skin cleansing cream, skin cream, deodorant soap, personal deodorants, antiperspirants, and combination deodorants/antiperspirants, emery boards, essential oils for personal use, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils, eyeliners, face powder, facial scrubs, foundation makeup, bath gel, shaving gel, shower gel, lip gloss, lipstick, hair conditioners, hair gel, hair rinses, hair spray, skin lotion, facial lotion, body lotion, makeup, facial makeup, mascara, massage oil, skin moisturizer, nail enamel, nail polish, rouge, sachets, hair shampoo, shaving balm, shaving lotion, skin cleansing lotion, skin soap, skin tonners, liquid soaps for hand, face, and body, and cosmetics, sunglasses, handbags, purses, shoulder bags, and luggage, school bags, backpacks, daypacks, waist packs, duffel bags, general purpose sport bags, laundry bags, and portfolios, and umbrellas, and a wide range of wearing apparel and clothing accessories, including clothing, headwear and footwear, athletic bags, all-purpose athletic bags, all-purpose sports bags, barrel bags, beach bags, book bags, clutch bags, gym bags, leather shopping bags, tote bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, coin purses, drawstring pouches, leather key fobs, knapsacks, luggage, luggage tags, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases, and wallets.

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

Class 3: Cologne, perfume, toilet water.

Class 18: Business card cases, calling card cases, credit card cases, key cases, overnight cases, passport cases, passport wallets, passport holders, credit card holders, leather key fobs, luggage tags and wallets, leather shopping bags, shoulder bags, tote bags, handbags.

Class 25: Clothing and accessories, namely, blazers, vests, sweaters, turtleneck sweaters, sweater coats, skirts, skorts (combination skirt and shorts), pants, jeans, shorts, shirts, t-shirts, sport shirts, pull-overs, overalls, blouses, shortalls, polo shirts, rugby shirts, halters, halter tops, sweatshirts, sweatpants, and fleece-wear; swimwear; beach cover-ups; underwear, namely bras, panties, boxer shorts, shell bra tanks, and undershirts; outerwear, namely, jackets, vests, parkas, coats, pea coats, 3-in-1 system coats, anoraks, gloves, ear muffs, scarves and mittens; ties; belts; footwear, namely, socks; sleep-wear; pyjamas; footwear, namely, shoes, leather boots, sandals, flip flops, sneakers; athletic footwear, namely canvas shoes, headwear, namely, caps, baseball caps, headbands, head sweatbands.

Class 35: Retail store services, electronic retail commerce over the Internet/worldwide web, catalogue retail sales, mail order and phone order retail services, all for a wide range of fragrances, compacts candles, jewellery and wristwatches, stationery, posters, pictorial, art and colour prints, calendars and travel diaries, pens, pencils, portfolios, notepads, greeting cards, and note cards, including wallets, business card cases, calling card cases, credit card cases, key cases, overnight cases, passport cases, passport wallets, passport holders, credit card holders.

4. Each party bears its own costs.

REASONS

The applicant filed a request for revocation of European Union trade mark registration No 5 066 113 (figurative mark) (the EUTM). The request is directed against some of the goods and services covered by the EUTM, namely:

Class 3: After-shave lotions, non-medicated lip balm, bath oil, bath powder, non-medicated bath salts, bubble bath, beauty masks, body cream, body oil, body powder, cosmetic pencils, hand cream, eye cream, night cream, shaving cream, skin cleansing cream, skin cream, deodorant soap, personal deodorants, antiperspirants, and combination deodorants/antiperspirants, emery boards, essential oils for personal use, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils, eyeliners, face powder, facial scrubs, foundation makeup, bath gel, shaving gel, shower gel, lip gloss, lipstick, hair conditioners, hair gel, hair rinses, hair spray, skin lotion, facial lotion, body lotion, makeup, facial makeup, mascara, massage oil, skin moisturizer, nail enamel, nail polish, rouge, sachets, hair shampoo, shaving balm, shaving lotion, skin cleansing lotion, skin soap, skin tonners, liquid soaps for hand, face, and body, and cosmetics, including compacts.

Class 18: Athletic bags, all-purpose athletic bags, all-purpose sports bags, backpacks, barrel bags, beach bags, book bags, clutch bags, duffel bags, gym bags, leather shopping bags, shoulder bags, tote bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, clutch purses, coin purses, drawstring pouches, waist packs, handbags, knapsacks, luggage, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases.

Class 25: Sleep-wear; pyjamas; robes; ski pants and ski jackets, snowboarding pants and jackets; footwear, namely, shoes, slippers, leather boots, rubber boots, insoles, sandals, flip flops, sneakers, clogs and slides, and hosiery; athletic footwear, namely, athletic shoes, trail and hiking shoes and boots, canvas shoes, and roller skates, headwear, namely, hats, hoods, caps, baseball caps, visors, sun visors, headbands, babushkas, head and wrist sweatbands, headscarves, berets.

Class 35: Retail store services, electronic retail commerce over the Internet/worldwide web, catalogue retail sales, mail order and phone order retail services, all for a wide range of after-shave lotions, non-medicated lip balm, bath oil, bath powder, non-medicated bath salts, bubble bath, beauty masks, body cream, body oil, body powder, cologne, perfume, toilet water, cosmetic pencils, hand cream, eye cream, night cream, shaving cream, skin cleansing cream, skin cream, deodorant soap, personal deodorants, antiperspirants, and combination deodorants/antiperspirants, emery boards, essential oils for personal use, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils, eyeliners, face powder, facial scrubs, foundation makeup, bath gel, shaving gel, shower gel, lip gloss, lipstick, hair conditioners, hair gel, hair rinses, hair spray, skin lotion, facial lotion, body lotion, makeup, facial makeup, mascara, massage oil, skin moisturizer, nail enamel, nail polish, rouge, sachets, hair shampoo, shaving balm, shaving lotion, skin cleansing lotion, skin soap, skin tonners, liquid soaps for hand, face, and body, and cosmetics, sunglasses, handbags, purses, shoulder bags, and luggage, school bags, backpacks, daypacks, waist packs, duffel bags, general purpose sport bags, laundry bags, and portfolios, and umbrellas, and a wide range of wearing apparel and clothing accessories, including clothing, headwear and footwear, athletic bags, all-purpose athletic bags, all-purpose sports bags, barrel bags, beach bags, book bags, clutch bags, gym bags, leather shopping bags, tote bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, coin purses, drawstring pouches, leather key fobs, knapsacks, luggage, luggage tags, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases, and wallets.

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

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the contested EUTM has not been put to genuine use in the EU within a continuous period of five years in connection with the contested goods and services.

The EUTM proprietor files evidence of use that will be analysed later in the decision and argues that it has made extensive use of the contested mark within the UK and the EU since 2004 in relation to a wide range of clothing and accessories items and to retail services connected with these goods. It refers to previous decisions either from the Office or from the UK IPO that recognised the well-known character of the Eagle mark.

In reply, the applicant challenged the evidence of use provided by the proprietor. It argues that the proprietors’ website is under the trade mark AE and only the trademarks AMERICAN EAGLE and AERIE are clearly visible on the top of the page. It also points out that, from 2017 onwards, there were no shops in the EU.

Having analysed all the evidence provided by the proprietor, the applicant states that it can be seen that in the period between 2004 and 2014, the EUTM proprietor made few sales in the EU and before 2012 there were no shops in the EU. Moreover, the contested trade mark has not been used in Poland where the first shop opened in 2012. The applicant reasoned that the figures shown in the evidence are clearly a very small amount of sales especially for goods with a low price.

Moreover, most of the evidence does not refer to the contested mark. Therefore, no clear link can be established between the use of the mark and the relevant goods and services.

Finally, the applicant argues that the contested mark has not been used for goods in the entire classes 3 and 18 and for all goods of class 25 except for jeans, flip flops, t-shirts, sweaters, socks of any kind and baseball hats.

In support of its observations, it filed the following documents. It is noted that there is a confidentiality request for the documents filed. In this regard, it is recalled that where a claim for confidentiality has been submitted by the party by use of a standard ‘confidential’ stamp on the cover page of the submission, or by ticking the ‘confidential’ tick-box when using the electronic communication platform, yet the documents enclosed contain no explanation nor indication of any special interest nor any attempt on behalf of the party to justify the confidential nature or status of the submission (as in the case at hand), the Office will remove this indication. The evidence consist on the following:

• Annex 1: An extract from the EUIPO e-Search Plus showing registered marks with AE or Eagles.

• Annex 2: An extract from the USPTO showing the registration details of several marks owned by the EUTM proprietor.

• Annex 3: An extract from www.ae.com showing that the EU and UK websites and stores are closed.

• Annex 4: Several extracts from the Wayback Machine www.ae.com in the EU and the UK.

• Annex 5: Facebook and Twitter pages of the American Eagle Outfitters.

• Annex 6: Several extracts from the Wayback Machine www.ae.com dated 2013.

• Annex 7: Several extracts from www.ae.com dated 2013.

Finally, the proprietor counteracts some of the arguments raised by the applicant. It rejects the applicant's argument that use of the Eagle Mark alongside the wording AMERICAN EAGLE OUTFITTERS is use as a "unitary whole". Trade marks can be used together with other elements provided the distinctive character of the mark as registered is not altered as it is the case here. In any case, the proprietor argues that it has produced evidence of use of the Eagle Mark alone, as well as in combination with other elements which supports use of the Eagle mark.

The proprietor points out that it has provided substantial evidence showing that the website www.ae.com has been used to offer goods for sale to consumers on a worldwide basis and not only the US market. Moreover, the goods have been sold and shipped to consumers based on EU countries. It also explains that it operates stores in Greece.

The proprietor alleges that there is no way of corroborating certain information via external sources. The only means of giving this evidence is via internal records and a witness statement from the proprietor. This position is not unusual amongst trade mark holders which operate their own stores. Furthermore, it states that there is a distinction between internal use of the mark and the production of internal documents.

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 10/06/2010. The revocation request was filed on 19/01/2018. 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 19/01/2013 to 18/01/2018 inclusive, for the contested goods and services listed in the section ‘Reasons’ above.

On 25/05/2018 the EUTM proprietor submitted evidence as proof of use. As the EUTM proprietor requested to keep certain commercial data contained in some of the evidence confidential vis-à-vis third parties, the Cancellation Division will describe the evidence only in the most general terms without divulging any such data.

The evidence consists on the following:

• A Witness Statement signed by Mr. Alexander Walsh, Corporate Counsel of American Eagle Outfitters on 25/05/2018. It explains the background of the company, the development of the mark and the market in which it operates.

1. The Fashion United article, “American Eagle to launch in the UK with three stores”, dated 01/07/2014. The American retailer has more than 1,000 stores in the US, Canada, Mexico, China and Hong Kong, and through its e-commerce websites it ships to 81 countries worldwide. American Eagle Outfitters and Aerie merchandise is available at 82 licensed international franchise stores in 13 countries. The sign is displayed on a T-shirt.

2. The Guardian article, “‘Normcore’ goes mainstream as American Eagle lands in the UK”, dated 26/10/2014.

3. EUIPO Opposition decision B 2 752 965 (Eagle mark) which states a reputation of the contested mark in the UK for at least pants, jeans, shorts, shirts, t-shirts.

4. UK IPO decision, O-068-13 (LET IT ROCK) in which the contested mark was the opposed mark. It recognises substantial sales of the mark in the UK.

5. BrandZ 2007 Ranking report Top Most Powerful Brands by Millward Brown. It ranks American Eagle Outfit in the 10^th position among the apparel brands. A Fashion United article showing the statistics of the UK fashion industry in billion pounds. An extract from the Eurostat news release showing the figures of the EU population.

6. Several printouts showing AEO websites available in GBP and EUR. The contested mark is not shown only .

7. Several printouts showing www.ae.com shipping locations (inter alia, Finland, France, Austria, Germany), taken from Wayback Machine web archive dated 2013, 2014, 2015, 2016 and 2017. In some of the extracts the sign is shown.

8. Several printouts showing use of the mark on various products (caps, body spray, flip flops) and product packaging available via www.ae.com between 2013 and 2016 taken from Wayback Machine web archive. Some of the products show the contested mark together with American Eagle Outfitters but others show ‘American Eagle’ or ‘AE’ and are shown in US dollars.

9. Several printouts showing fragrances and beauty products available via www.ae.com between 2013 and 2017, taken from Wayback Machine web archive. Some of the products bear the sign AE, AEO or AERIE whilst few of them show the signs and . The prices of the products are shown in US dollars.

10. Printouts showing various types of bags and backpacks available via www.ae.com between 2013 and 2017 taken from Wayback Machine web archive where the sign is shown. The prices of the products are shown in US dollars.

11. Printouts showing clothing (denim jackets, kimonos, sleepwear), hats, sunglasses, wallets, bags and footwear (sandals, flip flops, boots, sneakers), hair accessories available via www.ae.com between 2013 and 2017, taken from Wayback Machine web archive. Some of the products show the sign and are in USD.

12. Examples of packaging (non-dated) for goods such as socks, gloves, underwear, legwarmers, tights, billfolds featuring the sign .

13. Pictures of products (non-dated) such as perfumery, make up, bags, underwear, sleepwear, socks, hats, flipflops, sneakers, footwear and headbands showing the signs and applied to the products themselves or to labels, tags and packaging.

14. Several news reports and articles published in, inter alia, The Telegraph (2017), Fashion United (2014), LDN Fashion, Fashion Beans, Retail Week, Daily Mail, Standard relating to the opening of AEO’s UK stores. The proprietor provides figures of the numbers of visits of the online editions.

15. American Eagle Outfitters UK Limited, Directors’ report and Audited Financial Statements 31/01/2015 to 30/01/2016 by Ernst & Young LLP.

16. Extracts in Greek and in English dated 2015 and 2016 which correspond to several news reports and articles published in, inter alia, Vipnews, Kathimerini, The Sugar Plum Fairy, Mononews, Boxnews, Fayscontrol relating to the opening of AEO’s Greece stores. The photo-call and the products show

17. Printouts showing Eagle Mark on www.ae.com between 2013 and 2016, taken from Wayback Machine web archive.

18. EU online sales figures from 2006 to 2011 including a breakdown of Units and sales in Euros. The document does not include a date or the source. According to the proprietor, all purchases were made by EU consumers online.

19. A document showing EU online sales details from 2013 to 2018 per country. They include a description of the products, the code number and the amounts in US dollars. Several extracts from the page www.ae.com are enclosed showing the information of the products. The code of the product is included which could be cross referenced with the list of sales. Only one item bears the contested mark.

20. Printouts from www.ebay.co.uk showing results of the search American Eagle in The UK. Only some products (clothing) bear the Eagle Mark.

21. Extracts from several sources dated 2014, 2015 showing retail stores in the UK, Greece and Poland.

22. Photographs showing swing tags/labels on clothing items bearing the sign .

23. A document showing the insertion of the contested mark in Poland.

24. Pictures of products (scarves, bags, glasses, dresses, shirts, perfume, socks, headbands, purse, sneaker, hat, sandals, key chain) bearing the sign .

25. UK and EU sales figures from 2006 to 2014 including a breakdown of Units and sales in Euros. The document does not include a date or the source. According to the proprietor, all purchases were made by EU consumers online. UK stores sales figures, 2014.

26. Greece sales figures in 2016 breaking down total sales in Euros and average units.

27. Greece (from 2013-2018) and Poland (2012-2015) stores sales figures generated by IBM Cognos software.

28. A spreadsheet. According to the proprietor, it shows details of EU customer orders placed via www.ae.com during 2015. It includes a description of the products and the amounts as well as the country. The contested mark is not mentioned.

29. Fifteen orders from 2013 to 2016 and addressed to several EU countries showing AEO products.

30. Worldwide advertising spend from 2002-2014 in Euros and in US dollars. The document does not include a date or the source. According to the proprietor, they advertise products sold under the Eagle mark.

31. Examples of mail shots from 2012 sent to consumers showing the sign on clothing items.

32. Examples of press materials and billboard campaigns dated 2012, 2013, 2014 of American Eagle Outfitters. Some of the clothing items show the contested mark.

33. Photographs of banners, ticket gates on tube stations showing . According to the proprietor, they correspond to AEO UK “Underground Takeover” dated 22/09/2015.

34. Photographs showing in advertising materials in Greece. Sample of invoices which, according to the proprietor, refer to the placement of advertisements and photographer of store opening.

35. A table which, according to the proprietor, shows consumer visits to www.ae.com between 2011 and 2015. It contains a breakdown per country and year and the total visits. The source is not included.

36. Details of total website hits to www.ae.com between 2013 and 2018. It specifies the country, the page visits and the visits. The information has been compiled by Adobe Analytics.

37. Details of internet web traffic statistics for www.aeo.com generated by Alexa showing the monthly unique visitor metrics, global ranking and site visitors.

38. A sheet which according to the proprietor refer to details of calls to UK and EU Customer Services lines in 2015 and 2016 respectively. Screenshots of the www.aeo.com showing the telephone numbers for the customer service lines in the EU countries.

39. Screenshots of the AEO smart phone app downloaded from the iTunes store and Google Play taken from the Wayback Machine in 2015. The app shows the sign .

40. A Euro-monitor article, “Teen Fashion Coming of Age?” dated 30/03/2016 mentioning the success of American Eagle.

41. Printouts from the AEO Facebook page and a table detailing the number of ‘likes’ per EU countries.

42. Printouts from the AEO Facebook page dated 2013 -2016 showing the products bearing .

43. Printouts from social networking sites (Instagram, Twitter or Pinterest) showing the sign .

44. Articles (FashionUnited, RetailWeek) relating to the launch of a UK-specific online store dated 2015. They show a photograph of stores in the UK.

45. Articles published in UK fashion magazines such as Glamour, Vogue, Cosmopolitan, Look, 2014-2015 featuring in relation to clothing.

46. Fashion blog posts 2014-2016 featuring in relation to clothing (denim).

47. Decision of the Boards of Appeal of 24/10/2016, R 1741/2015-2, FOX.

On 14/02/2019, the proprietor filed further evidence:

48. A screenshot from www.alexa.com. According to the proprietor, it consists of a screen shot taken from the Alexa Rank website which confirms the nature of the 'bounce rate' and other metrics. The metrics are updated daily based on the trailing 3 months. It is important to note that the data produced at Exhibit AW39 provides a 'snapshot' of web user activity for a limited period of time, and subject to change on a daily basis. The bounce rate data shown relates to the 3-month period from 13 November 2016 - 13 February 2017 (which is within the Relevant Period). Whilst the bounce rate for that particular period is noted as 61%, the figure shown in red (37%) alongside the 61% figure indicates an increase in bounce rate when compared with the preceding 3 month period. In other words, the bounce rate for the aeo.com website for the period between August — November 2016 was significantly lower (i.e. 24%).

Preliminary remarks

On further arguments submitted by the applicant after the closure of the cancellation proceedings

On 15/02/2019, the Office sent a letter to the parties informing them about the closure of the adversarial part of the proceedings. It further informed them that, unless further examination of the file revealed that submission of observations or evidence was needed, the Office would rule on the application on the evidence before it and that no further observations should be submitted.

However, after the closure of the proceedings, the applicant submitted further arguments. In said argument, it merely clarifies some immaterial clerical errors and reiterates its previous allegations about the nature and extent of use of the contested mark.

The Cancellation Division considers that the applicant’s last submission of observations reiterates its previous arguments. Since they do not add any relevant argument that modifies the outcome of this decision it is therefore not necessary to re-open the proceedings in order to invite the proprietor to comment upon it.

On the belated evidence

On 14/02/2019, after expiry of the time limit, the applicant submitted additional evidence.

Even though, according to Article 19(1) EUTMDR, the EUTM proprietor has to submit proof of use within a time limit set by the Office, Article 10(7) EUTMDR (applicable to cancellation proceeding by virtue of Article 19(1) EUTMDR) expressly invites the Office to exercise its discretionary power if relevant evidence was submitted in time and, after the expiry of the time limit, supplementary evidence was filed.

According to Article 10(7) EUTMDR, where, after the expiry of the time limit set by the Office, indications or evidence is filed that supplement prior relevant indications or evidence submitted within the time limit, the Office may take into account the evidence submitted out of time as a result of exercise of the discretion conferred on it by Article 95(2) EUTMR. When exercising its discretionary power, the Office must take into account, in particular, the stage of proceedings and whether the facts or evidence are, prima facie, likely to be relevant for the outcome of the case and whether there are valid reasons for the late submission of the facts or evidence.

The factors to be evaluated when exercising this discretion are, first, whether the material that has been produced late is, on the face of it, likely to be relevant to the outcome of the proceedings and, second, whether the stage of the proceedings at which that late submission takes place, and the circumstances surrounding it, do not argue against these matters being taken into account (18/07/2013, C‑621/11 P, Fishbone, EU:C:2013:484, § 33). The acceptance of additional belated evidence is unlikely where the EUTM proprietor or IR holder has abused the time limits set by knowingly employing delaying tactics or by demonstrating manifest negligence (18/07/2013, C‑621/11 P, Fishbone, EU:C:2013:484, § 36).

As regards the remaining additional annex submitted by the EUTM proprietor on 14/02/2019, the issue of whether or not the Office may exercise the discretion conferred on it by Article 95(2) EUTMR to take it into account can remain open, as the evidence previously submitted within the time limit is sufficient to prove the required genuine use of the EUTM for some of the goods for which it is registered, and the additional evidence does not contain any reference to the remaining goods and services. Since they do not modify the outcome of this decision, it is therefore not necessary to re-open the proceedings in order to invite the applicant to comment upon it.

Use by a third party

The proprietor argues in the witness statement signed by the Corporate Counsel of American Eagle Outfitters that said entity is a parent company of the proprietor.

According to Article 18(2) EUTMR, use of the European Union trade mark with the consent of the proprietor is deemed to constitute use by the proprietor.

The fact that the EUTM proprietor submitted evidence of use of its marks by a third party shows that it consented to this use (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225).

Consequently, the evidence filed by the EUTM proprietor is an indication that the use was with its consent.

To this extent, and in accordance with Article 18(2) EUTMR, the Cancellation Division considers that the use by those other companies was with the EUTM proprietor’s consent and, therefore, is equivalent to use by the EUTM proprietor itself.

On the probative value of the affidavit

As far as the affidavit is concerned, Article 10(4) EUTMDR (applicable to cancellation proceedings by virtue of Article 19(2) EUTMDR) expressly mentions written statements referred to in Article 97(1)(f) EUTMR as admissible means of proof of use. Article 97(1)(f) EUTMR lists, as means of giving evidence, sworn or affirmed written statements or other statements that have a similar effect under the law of the State in which they were drawn up. As far as the probative value of this kind of evidence is concerned, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. This is because the perceptions of a party involved in a dispute may be more or less affected by its personal interests in the matter.

However, this does not mean that such statements do not have any probative value at all.

The final outcome depends on the overall assessment of the evidence in the particular case. The probative value of such statements depends on whether or not they are supported by other types of evidence (labels, packaging etc.) or evidence originating from independent sources.

In view of the foregoing, the remaining evidence must be assessed in order to see whether or not the contents of the declaration are supported by the other items of evidence.

As regards the exhibits attached to the affidavit, they are independent pieces of evidence which back up the statements made in said affidavit, and therefore, the Cancellation Division considers that they are valid evidence which must be duly considered.

Assessment of genuine use – factors

Time of use

The evidence must show genuine use of the European Union trade mark within the relevant period.

The applicant argues that some documents are far from the relevant period.

Indeed, although some documents are not dated (documents nº12-13) or are dated outside of the relevant period (document nº5), it must be noted that the extracts from the Wayback Machine (documents nº7-10) and the articles and press releases published in the main newspapers in the UK and Greece (documents nº14 and 16), provide sufficient indications as to the use of the contested mark during the relevant time period, namely, from 19/01/2013 to 18/01/2018 inclusive.

In its observations, the applicant states that the UK stores closed in 2017; however, the proprietor considers that the closure of the UK stores in 2017 does not affect the fact that genuine use of the Eagle mark was made in connection with retailing services and sales of a wide range of goods from those stores during the relevant period.

The Cancellation Division considers that even if there is evidence that the UK stores closed from 2017 onwards, there is also enough evidence to consider that the contested mark was put on the relevant market during the relevant period, therefore the applicant’s claim is rejected as unfounded.

According to case-law, it is sufficient that a trade mark has been put to genuine use during a part of the relevant period for it not to be subject to sanctions (25/03/2009, T‑191/07, Budweiser, EU:T:2009:83, § 108).

Therefore, the evidence filed by the EUTM proprietor contains sufficient indications concerning the time of use.

Place of use

The evidence must show that the contested European Union trade mark has been genuinely used in the European Union (see Article 18(1) EUTMR and Article 58(1)(a) EUTMR).

The applicant argues that the documents refer to territories outside the EU. Indeed, in the present case, some of the documents show that the products are offered in the USA. Moreover, the Cancellation Division concurs with the applicant that the prices of the products are, in some documents, displayed in US dollars (extracts from the proprietor’s website www.aeo.com ).

However, there are extracts showing the contested mark in several markets such as the UK or Greece (document nº21). Moreover, the orders show that American Eagle Outfitters products were shipped to various EU countries such as Belgium, Bulgaria, France, Germany, Hungary, Ireland and the amounts are in Euros or in their local currency (document nº29). The extracts from the Facebook page show insertions in the UK or Poland.

Moreover, extracts and marketing initiatives have been provided in different languages showing the contested mark in several EU countries (Poland, Greece and the UK).

In the Cancellation Division’s view, the evidence provided shows that the contested mark has reached customers in many countries within the European Union and not only the US market.

Therefore, the evidence relates to the relevant territory and is sufficient to show place of use of the contested trade mark. The applicant’s claim is rejected as unfounded.

Nature of use: use as a trade mark

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.

In the present case, the majority of the documents show that the signs and are used in connection with certain goods and services to indicate the commercial origin and therefore it is used as a trade mark. Consequently, the consumers can distinguish the goods and services from those of different manufacturers.

Nature of use: use of the mark as registered

‘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 applicant argues that the contested EUTM has never been used as registered but only used as , , AERIE not complying with Article 18(1)(a) EUTMR.

In contrast, the EUTM proprietor considers that trade marks can be used together with other elements provided the distinctive character of the mark as registered is not altered as it is the case here. In any case, the proprietor has produced evidence of use of the Eagle Mark alone, as well as in combination with other elements which supports use of the Eagle mark.

In the present case, it has to be noted that the contested mark is a figurative mark which consists of the silhouette of a flying eagle.

The applicant points out that the use is deemed to be of one composite mark rather than two or more marks where the different elements appear as a unitary whole.

In this case, some of the evidence show the signs as follows:

It is quite common in some market areas for goods and services to bear not only their individual mark, but also the mark of the business or product group (‘house mark’). In these cases, the registered mark is not used in a different form, but the two independent marks are validly used at the same time.

There is no legal precept in the European Union trade mark system that obliges the opponent to provide evidence of the earlier mark alone when genuine use is required within the meaning of Article 47 EUTMR. Two or more trade marks may be used together in an autonomous way, or with the company name, without altering the distinctive character of the earlier registered trade mark (T-463/12, MB, EU:T:2014:935, § 43). It is common practice in the trade to depict independent marks in different sizes and typeface, so these clear differences, which emphasise the house mark, indicate that two different marks are used jointly but autonomously (decision of 07/08/2014, R 1880/2013-1, HEALTHPRESSO/PRESSO, § 42).

The Court has confirmed that the condition of genuine use of a registered trade mark may be satisfied both where it has been used as part of another composite mark or where it is used in conjunction with another mark, even if the combination of marks is itself registered as a trade mark (judgment of 18/04/2013, C-12/12, SM JEANS/LEVI‘S, EU:C:2013:253, § 36.). Similarly, the Court has clarified that use can be genuine where a figurative mark is used in conjunction with a word mark superimposed over it, even if the combination of those two marks is itself registered, to the extent that the differences between the form in which that trade mark is used and that in which it was registered do not change the distinctive character of that trade mark as registered (judgment of 18/07/2013, C-252/12, Specsavers, EU:C:2013:497, § 31).

In the present case, the silhouette of a flying eagle and the expression ‘AMERICAN EAGLE OUTFITTERS’ are clearly recognized as independent elements. The Eagle appears on its own or above the elements ‘AMERICAN EAGLE OUTFITTERS’. Therefore, they will be seen as two independent trade marks.

Therefore, the evidence submitted shows use of the mark as registered or in a form essentially the same as that registered and, therefore, such use constitutes use of the contested registration under Article 18 EUTMR contrary to the applicant‘s claim.

Extent of use

Concerning extent of use, it is settled case-law that 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 (e.g. 08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 35).

The General Court went further to point out that “to examine, in a particular case, 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. In addition, the turnover and the volume of sales of the product under the earlier trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the products or services on the relevant market” (08/07/2004, T‑203/02, Vitafruit, EU:T:2004:225, § 41 and 42).

The extracts from the websites do not give any indication as regards sales figures or commercial volume.

However, some extracts show advertising campaigns through digital media (Facebook, Twitter and Instagram) showing millions of followers. Moreover, the evidence also show banners in public transports in as well as insertions in a newspaper in the UK.

Furthermore, several news reports and articles published in, inter alia, The Telegraph (2017), Fashion United (2014), LDN Fashion, Fashion Beans, Retail Week, Daily Mail, Standard relate to the opening of AEO’s UK stores. The proprietor provides figures of the numbers of visits of the online editions (document nº14). The proprietor also shows details of total website hits to www.ae.com between 2013 and 2018. It specifies the country, the page visits and the total visits. The information has been compiled by Adobe Analytics (document nº36).

According to case-law, although the advertising campaigns and the extracts from the websites do not add any information about the extent of use in terms of sale volumes, there are references to the presence of the goods and services on the market in some European countries such as the UK. It is true that those websites provide no information on the quantity of goods and services actually sold under the trade mark however they provide the number of users of the publications. It is necessary to take into account, in that regard, the fact that a large number of items designated by the trade mark were offered and that those items were available for a significant part of the relevant period. Those factors support the conclusion, in the context of a global assessment of whether the use to which the mark was put was genuine, that the extent of its use was fairly significant. In that regard, it must also be remembered that the purpose of the requirement for genuine use of the mark is not to assess the commercial success of the undertaking in question (08/07/2010, T‑30/09, Peerstorm, EU:T:2010:298, § 43).

In its observations, the proprietor explains that the fashion industry is a form of oligopoly and the remaining market share claimed by the remaining companies will appear to be relatively small. Furthermore, the proprietor argues that in the context of the specific marketplace in question, as outlined above, a relatively small market share does not mean that sales are not genuine or should be considered to be insignificant or negligible.

Indeed, the orders from 2013 to 2016 and addressed to several EU countries show modest amounts taking into account the relevant products. The turnover and volume of sales of the product must always be assessed in relation to all the other relevant factors, such as the volume of business, production or marketing capacity, or the degree of diversification of the undertaking using the trade mark, and the characteristics of the products or services on the relevant market. Use need not always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods or services concerned on the corresponding market (11/03/2003, C-40/01, Minimax, EU:C:2003:145, § 39; 08/07/2004, T-203/02, Vitafruit, EU:T:2004:225, § 42).

Therefore, taking into account all the evidence provided, the Cancellation Division considers that the evidence, taken as a whole, is sufficient to prove the extent of use of the registered mark, and exceeds mere token use, in respect of certain goods and services.

Consequently, the Cancellation Division finds that the documents filed provide sufficient information concerning the commercial volume, the duration and the frequency of use at least for some of the contested goods and services.

Use in relation to the registered goods and services

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 contested EUTM is registered for the abovementioned contested goods and services in Classes 3, 18, 25 and 35. However, the evidence filed by the EUTM proprietor does not show genuine use of the trade mark for all the contested goods and services for which it is registered.

According to Article 58(2) EUTMR, where there are grounds for revocation in respect of only some of the goods or services for which the contested mark is registered, the proprietor’s rights will be revoked for those goods and services only.

According to case-law, when applying the abovementioned provision the following should be considered:

… if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of subcategories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the subcategory or subcategories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition.

Although the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. The Court observes in that regard that in practice it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or subcategories.

[Furthermore,] allowing an earlier trade mark to be deemed to be registered only in relation to the part of the goods or services in respect of which genuine use has been established … must be reconciled with the legitimate interest of the proprietor in being able in the future to extend his range of goods or services, within the confines of the terms describing the goods or services for which the trade mark was registered, by using the protection which registration of the trade mark confers on him.

(14/07/2005, T‑126/03, Aladin, EU:T:2005:288)

Since consumers are searching primarily for a product or service to meet their specific needs, the purpose of the product or service in question is vital for determining their choice. Consequently, it is of fundamental importance when defining a subcategory of goods or services (13/02/2007, T‑256/04, Respicur, EU:T:2007:46, § 29).

Each class of goods and services will be dealt with separately.

Contested Goods in Class 3

In the Cancellation Division’s view, the relevant extracts mainly show the contested mark in relation to fragrances and colognes however those goods have not been contested and they do not fall within any of the categories of the contested goods in Class 3.

As for the remainder goods that have been contested in this class, the Cancellation Division considers that only few extracts (pictures, extracts from the proprietor’s website) are insufficient to show genuine use of these goods since it does not provide enough indications that the proprietor has seriously tried to acquire a commercial position in the relevant market for those goods.

Therefore, genuine use has not been proved as regards the contested goods in Class 3.

Goods in Class 18

In connection with Class 18, the evidence shows sufficient indications of use of the contested mark for a large variety of bags. It is clear that the evidence shows genuine use in relation to leather shopping bags, shoulder bags, tote bags, handbags.

However, the evidence does not contain any indications of use or only few extracts for the contested athletic bags, all-purpose athletic bags, all-purpose sports bags, backpacks, barrel bags, beach bags, book bags, clutch bags, duffel bags, gym bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, clutch purses, coin purses, drawstring pouches, waist packs, knapsacks, luggage, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases.

Goods in Class 25

The evidence suffices for satisfying the requirements of use in connection with Sleep-wear; pyjamas; footwear, namely, shoes, leather boots, sandals, flip flops, sneakers, athletic footwear, namely, canvas shoes, headwear, namely, caps, baseball caps, headbands, head sweatbands.

However, the evidence does not contain sufficient indications of extent of use in connection with robes; ski pants and ski jackets, snowboarding pants and jackets; footwear, namely, slippers, rubber boots, insoles, clogs and slides and hosiery; athletic footwear, namely, athletic shoes, trail and hiking shoes and boots and roller skates; headwear, namely hats (except caps), hoods, visor, sun visors, babushkas, wrist sweatbands; headscarves, berets.

Services in Class 35

The evidence does not contain any indications regarding use for any of the services in this class.

Admittedly, there is evidence showing that the signs and are displayed inside and outside the stores and in the headers of online shopping websites. Whilst it is clear that those stores are outlets for the American Eagle Outfitters or goods, there is no evidence that would even remotely suggest that goods of other brands are sold in those stores. Such use does not constitute use in connection with retail store services. That is because the activity of retailing consists of the bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods. It must be emphasised that the mere fact that American Eagle Outfitters or goods obviously are offered for sale does not lead to the finding of genuine use of the EUTM in relation to retailing services which must be interpreted as services rendered for third parties.

Overall assessment

In order to examine, in a given case, whether use of the earlier mark is genuine, an overall assessment must be made taking account of all the relevant factors in the particular case. That assessment implies a certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under that trade mark may be compensated for by high intensity of use or a certain constancy regarding the time of use of that trade mark or vice versa (08/07/2004, T‑334/01, Hipoviton, EU:T:2004:223, § 36).

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:

Class 3: After-shave lotions, non-medicated lip balm, bath oil, bath powder, non-medicated bath salts, bubble bath, beauty masks, body cream, body oil, body powder, cosmetic pencils, hand cream, eye cream, night cream, shaving cream, skin cleansing cream, skin cream, deodorant soap, personal deodorants, antiperspirants, and combination deodorants/antiperspirants, emery boards, essential oils for personal use, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils, eyeliners, face powder, facial scrubs, foundation makeup, bath gel, shaving gel, shower gel, lip gloss, lipstick, hair conditioners, hair gel, hair rinses, hair spray, skin lotion, facial lotion, body lotion, makeup, facial makeup, mascara, massage oil, skin moisturizer, nail enamel, nail polish, rouge, sachets, hair shampoo, shaving balm, shaving lotion, skin cleansing lotion, skin soap, skin tonners, liquid soaps for hand, face, and body, and cosmetics, including compacts.

Class 18: Athletic bags, all-purpose athletic bags, all-purpose sports bags, backpacks, barrel bags, beach bags, book bags, clutch bags, duffel bags, gym bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, clutch purses, coin purses, drawstring pouches, waist packs, knapsacks, luggage, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases.

Class 25: Robes; ski pants and ski jackets, snowboarding pants and jackets; footwear, namely, slippers, rubber boots, insoles, clogs and slides and hosiery; athletic footwear, namely, athletic shoes, trail and hiking shoes and boots and roller skates; headwear namely hats (except caps), hoods, visor, sun visors, babushkas, wrist sweatbands; headscarves, berets.

Class 35: Retail store services, electronic retail commerce over the Internet/worldwide web, catalogue retail sales, mail order and phone order retail services, all for a wide range of after-shave lotions, non-medicated lip balm, bath oil, bath powder, non-medicated bath salts, bubble bath, beauty masks, body cream, body oil, body powder, cologne, perfume, toilet water, cosmetic pencils, hand cream, eye cream, night cream, shaving cream, skin cleansing cream, skin cream, deodorant soap, personal deodorants, antiperspirants, and combination deodorants/antiperspirants, emery boards, essential oils for personal use, eye makeup, eye makeup remover, eye pencils, eye shadow, eyebrow pencils, eyeliners, face powder, facial scrubs, foundation makeup, bath gel, shaving gel, shower gel, lip gloss, lipstick, hair conditioners, hair gel, hair rinses, hair spray, skin lotion, facial lotion, body lotion, makeup, facial makeup, mascara, massage oil, skin moisturizer, nail enamel, nail polish, rouge, sachets, hair shampoo, shaving balm, shaving lotion, skin cleansing lotion, skin soap, skin tonners, liquid soaps for hand, face, and body, and cosmetics, sunglasses, handbags, purses, shoulder bags, and luggage, school bags, backpacks, daypacks, waist packs, duffel bags, general purpose sport bags, laundry bags, and portfolios, and umbrellas, and a wide range of wearing apparel and clothing accessories, including clothing, headwear and footwear, athletic bags, all-purpose athletic bags, all-purpose sports bags, barrel bags, beach bags, book bags, clutch bags, gym bags, leather shopping bags, tote bags, travel bags, billfolds, briefcases, attaché cases, document cases, cosmetic cases sold empty, toiletry cases sold empty, vanity cases sold empty, change purses, coin purses, drawstring pouches, leather key fobs, knapsacks, luggage, luggage tags, pocketbooks, briefcase-type portfolios, purses, rucksacks, satchels, suitcases, and wallets.

The EUTM proprietor has proven genuine use for the remaining contested goods; 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 19/01/2018.

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

Ana MUÑIZ RODRIGUEZ

Carmen SÁNCHEZ PALOMARES

Michaela SIMANDLOVA

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.