DECISION

of the Fifth Board of Appeal

of 19 November 2020

In case R-530/2020-5

About You GmbH
Domstraße 10 20095 Hamburg Germany	Revocation Applicant / Appellant

represented by Geistwert - Kletzer Messner Mosing Schnider Schultes Rechtsanwälte OG, Linke Wienzeile 4/2/3, 1060 Wien, Austria

v

Safe-1 Immobilieninvest GmbH
Amstettner Straße 34 3362 Mauer Austria	EUTM Proprietor / Defendant

represented by Martin Platte, Lothringerstrasse 3/12, 1010 Wien, Austria

APPEAL relating to Cancellation Proceedings No 30 684 C (European Union trade mark registration No 10 226 918)

The Fifth Board of Appeal

composed of V. Melgar (Chairperson), C. Govers (Rapporteur) and A. Pohlmann (Member)

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. SAFE-1 Immobilieninvest GmbH (‘the EUTM proprietor’) is the proprietor of the figurative mark below filed on 30 August 2011 and registered on 16 September 2012 for various goods and services in Classes 16, 20, 25 and 41.

The goods at issue in the appeal proceedings are:

Class 25 - Clothing.

2. On 7 December 2018, About You GmbH (‘the revocation applicant’) filed an application for a declaration of revocation on the ground that the EUTM had not been put to genuine use in the European Union for all the goods for which it was registered, pursuant to Article 58(1)(a) EUTMR.

3. On 21 February 2019, the EUTM proprietor submitted the following evidence:

   1. Exhibits 1 and 2: extracts from the Austrian companies register relating to the EUTM proprietor, Safe-1 Immobilieninvest GmbH, and to Y/O/U Label GmbH which explains that the latter company is a subsidiary of the EUTM proprietor;

   2. Exhibit 3: affidavit of the EUTM proprietor’s CEO;

   3. Exhibit 4: undated leaflet with the sign describing the fashion label’s concept (eco-friendly and high-quality ‘clothing’),

   4. Exhibit 5: undated illustration of the use of the above mark on T-shirts;

   5. Exhibit 6: undated brochure depicting the use of the sign on T-shirts, shirts, trousers and dresses;

   6. Exhibit 7: pictures of skirts bearing labels with the sign ;

   7. Exhibits 8 and 9: two billboards with the figurative sign and a billboard placement invoice issued by an Austrian company dated 18 June 2012 for 300 billboards in the period from 28 June 2012 and 25 July 2012;

   8. Exhibits 10 and 11: images of the free cards with the figurative sign ‘MAKES Y/O/U REAL’ (same visual as in the billboards in exhibits 8 and 9) and an invoice rendered by an Austrian undertaking dated July 2012 for the distribution of cards from 29 June 2012 to 12 July 2012;

   9. Exhibit 12: TV advertisement invoices dated 4 June 2012 and 2 July 2012;

   10. Exhibits 13-15: press articles on the opening of ‘Y/O/U’ stores in Vienna and Berlin (Woman magazine dated 11 July 2012; Die Presse dated 15 July 2012 and Wiener Zeitung Online dated 21 August 2012), and disclosing the figurative sign ‘MAKES Y/O/U REAL’. Wiener Zeitung Online dated 21 August 2012 mentions the Austrian fashion label ‘Y/O/U’;

   11. Exhibit 16: pictures of the opening event of the shops in Vienna and Berlin on 13 July 2012. The signs and are depicted in some pictures including on clothing worn by performers;

   12. Exhibit 17: invoice dated 30 December 2013 rendered by the EUTM proprietor to the German retailer Kleidungsladen on the sale of 170 items of ‘clothing’ (capsule collection of skirts, dresses, trench coats, jeans blousons) for the total amount of EUR 12 000. The sign is depicted at the top of the invoice;

   13. Exhibit 18: monthly usage statistics on the website www.you-label.com for the periods July-December 2012, and 2013 and 2014;

   14. Exhibits 19 and 20: email correspondence dated August 2014 with the Austrian company ‘He Brands Agency for Brand Management’ and confirmation sent by the EUTM proprietor dated 14 August 2014 for the sample delivery of three skirts and two trench coats;

   15. Exhibit 21: letter dated 14 January 2017 sent by Leinenweberei Vieböck GmbH relating to the manufacture of linen denim;

   16. Exhibit 22: excerpt from the Austrian companies register on the company Napalm Records Handels GmbH;

   17. Exhibit 23: a letter from Napalm Records Handels GmbH declaring an agreement concluded between the Austrian Record Company, Napalm Records Handels GmbH and Y/O/U Label GmbH in May 2018 for the supply of T‑shirts, by which the former will act as a distributor for Y/O/U Label GmbH’s products and confirming that on 7 May 2018 Napalm Records Handels GmbH purchased a sample batch of 880 T‑shirts for EUR 2 640;

   18. Exhibits 24 and 25: undated picture of a meeting with Napalm Records Handels GmbH as well as image of a T‑shirt bearing on the inner collar the label . One of the persons in the picture wears a T-shirt with logo on the top left of the chest. According to the EUTM proprietor, that T‑shirt with the label is the same as the ones sold to Napalm Records Handels GmbH;

   19. Exhibit 26: invoice issued by the EUTM proprietor to Napalm Records Handels GmbH dated 3 December 2018 on the sale of 880 T‑shirts for EUR 2 640. The sign is depicted at the top of the invoice;

   20. Exhibits 27 and 28: screenshots from the EUTM proprietor’s new website www.youpster.com (available from 10 November 2018) where the signs , the word sign ‘Y/O/U — YOUR ORIGINAL U!’ and the figurative sign ‘MAKES Y/O/U REAL’ are depicted on ‘clothing’ and usage statistics for that website for November 2018 and December 2018;

   21. Exhibit 29: invoice rendered by the clothing manufacturer Leinenweberei Vieböck GmbH to Y/O/U Label GmbH dated 21 November 2018 on the sale 36 meters of linen denim for EUR 1 213.92;

   22. Exhibit 30: screenshots from the website www.hm.at showing that ‘H&M’ sustainable mass products are much cheaper than the EUTM proprietor’s products manufactured in limited quantities.

The affidavit explained as follows:

• The subsidiary Y/O/U Label GmbH has used the EUTM with the EUTM proprietor`s consent.

• The first product line made out of eco-friendly and locally sourced cotton and linen was launched in 2012.

• With a view to entering the German and Austrian markets with a ‘big bang’ in the second half of 2012, a significant amount of money was spent on an extensive impact marketing campaign with billboards, free cards distributed in bars, restaurants, clubs, YouTube broadcasts and on the Austrian youth-culture channel ‘GOTV’, which culminated in the opening of the stores in Berlin and Vienna on 13 July 2012.

• There was media coverage in local newspapers of the opening of the stores as well as the organisation of events at the stores with live-streamed performances from artists.

• The anticipated success failed to materialise; the shops in Berlin and Vienna were closed in 2013 because the high start-up costs could not be covered by store retail sales.

• Efforts were made to look for distributors rather than sell directly to the consumer.

• On 30 December 2013, 170 items of a limited capsule collection of clothing were sold to Kleidungsladen, a shop focusing on eco-friendly fashion. The products were advertised and resold in local stores in Bavaria and on the website www.kleidungsladen.de.

• In August 2014, with a view to a cooperation agreement, a sample delivery of clothing items were sent to the Austrian company He Brands Agency for Brand Management. This agreement did not materialise.

• In 2017, it was decided to focus on linen denim and jeans, distributed by third parties, and the manufacturer Leinenweberei Vieböck GmbH was instructed to produce those products.

• In May 2018, a cooperation agreement was concluded with the record label Napalm Records Handels GmbH in which the latter would act as distributor of T‑shirts that would be supplied in the context of the record label’s marketing and promotion activities.

• On 21 November 2018, the Leinenweberei Vieböck GmbH sent the EUTM proprietor the first batch of the newly produced linen denim.

4. On 6 May 2019, the revocation applicant argued that the period after 7 November 2018 had to be excluded because in response to the EUTM proprietor’s cease-and-desist letter of 29 October 2018, the revocation applicant had requested proof of use of the EUTM on 7 November 2018, which is the date the EUTM proprietor became aware that an application for revocation would be filed. The revocation applicant also disputed the evidence arguing that it did not show use of the EUTM but of a sign without the element and for insufficient quantities. The revocation applicant claimed that its company founded in 2014, and its trade mark ‘ABOUT YOU’ were well known in the entire European online and fashion world since ‘ABOUT YOU’ was one of the largest online fashion retailers in Germany.

5. On 19 July 2019, the EUTM proprietor replied that use after 7 November 2018 had not been triggered by the dispute between the parties and maintained that genuine use had been proven of the EUTM for clothing on a scale that was sufficient.

6. By decision of 16 January 2020 (‘the contested decision’), the Cancellation Division found genuine use of the EUTM for clothing in Class 25 and partially dismissed the application for revocation to that extent. The EUTM proprietor’s rights in respect of European Union trade mark No 10 226 918 were revoked as from 7 December 2018 for the remaining goods, namely, headgear, footwear in Class 25 and all the goods and services in Classes 16, 20 and 41. The partial revocation of the EUTM for those goods and services is not at issue on appeal. The parties were ordered to bear their own costs. The contested decision in material part is summarised as follows:

• The EUTM was registered on 16 September 2012. The revocation request was filed on 7 December 2018. The EUTM proprietor had to prove genuine use of the contested EUTM from 7 December 2013 to 6 December 2018 inclusive, for the contested goods.

• The present case does not concern a situation where there was a commencement or resumption (after five years) of genuine use during the three months preceding the filing of the contested EUTM but rather one where the earlier EUTM was used before those three months and within five years of the filing of the revocation application.

• The Cancellation Division must consider the evidence in its entirety. Even if some relevant factors are lacking in some items of evidence, the combination of all the relevant factors in all the items of evidence may still indicate genuine use.

• Article 10(4) 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 regards the probative value, statements drawn up by the interested parties themselves or their employees are generally given less weight than independent evidence. 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.

• Although some documents are dated before the relevant period (Exhibits 8‑16), the remaining documents are dated within the relevant period. The provisions on the use requirement do not require continuous use. Therefore, the time of use has been sufficiently demonstrated.

• The documents show use in Germany and Austria. This can be inferred from the language of the documents (German), the currency mentioned (Euros) and from the invoices that show sales to clients in Germany (exhibit 17) and Austria (Exhibit 26). Therefore, the evidence relates to the relevant territory.

• Although ‘Y/O/U’ is part of the company name Y/O/U Label GmbH (the EUTM proprietor’s subsidiary that uses the EUTM), the documents show that it is used as a trade mark to identify the EUTM proprietor’s goods. The sign or its acceptable variant, has been used on leaflets, inside labels and on the goods themselves (T‑shirts) to indicate commercial origin.

• The contested mark is the figurative mark . As pointed out by the revocation applicant, the sign is very often used as .

• The omission lies in the figurative element , a bold dash. Although this element is not a secondary element, as a banal sign it is nontheless very weak, which will not be perceived as an indication of origin. Therefore, its omission does not alter the distinctive character of the EUTM.

• The items in support of the extent of use consist of two invoices: one dated 30 December 2013 sent to a client in Germany for 170 items of ‘clothing’ for a total amount of EUR 12 000 (Exhibit 17) and one dated 7 May 2018 sent to a client in Austria for 880 T‑shirts for EUR 2 640 (Exhibit 26). Both fall within the relevant period and cover, respectively, the beginning (December 2013) and the end of the relevant period (May 2018). As mentioned before, use does not have to be continuous during the relevant period of five years. It is sufficient if the use had been made at the very beginning or end of the period, provided that the use was genuine.

• Outward use does not necessarily imply use targeted at end consumers. Where goods are produced by the trade mark proprietor (or with its consent), but subsequently placed on the market by distributors at wholesale or retail level, this is to be considered as use of the mark. The invoices are addressed to two distributors located in Germany and Austria.

• Token use can be excluded in view of the territorial scope (sales took place in two large countries), and the length of use (between 2013 and 2018). Furthermore, the EUTM proprietor manufactures expensive sustainable, eco-friendly and locally sourced clothing which constitutes a more restrictive market.

• Genuine use does not require commercial success but just real exploitation on the market. The evidence reached the minimum level necessary to establish genuine use of the EUTM. The volume of sales, in relation to the period of use, is not so low that it might be concluded that the use is merely token, minimal or notional for the sole purpose of preserving the rights conferred by the mark. The extent of use is proven.

• The evidence shows use for jeans, dresses, working clothes and T‑shirts, which do not constitute independent subcategories within the broad category of ‘clothing’.

7. On 13 March 2020, the revocation applicant filed an appeal against the contested decision to the extent that the EUTM was maintained for ‘clothing’ in Class 25 and that the parties had to bear their own costs of the proceedings. The statement of grounds of the appeal was received on 14 May 2020.

8. The EUTM proprietor replied on 10 July 2020 with observations and additional evidence consisting of:

   1. Exhibit 31: excerpts of Otto Group’s annual report reporting losses;

   2. Exhibit 32: summary of invoices issued to the EUTM proprietor in 2012 relating to the launch of its label;

   3. Exhibit 33: delivery note for an invoice dated 30 December 2013 listing the items;

   4. Exhibit 34: various invoices issued by Kleidungsladen.de for sales to end consumers from 21 January 2014 to 7 June 2017;

   5. Exhibit 35: archived extracts from the Wayback Machine of the website www.avocadostore.de dated 30 September 2013 disclosing the EUTM proprietor’s products;

   6. Exhibit 36: screenshots of the websites www.avocadostore.de and www.avocadostore.at showing that the EUTM proprietor`s products were still offered on 23 June 2000;

   7. Exhibit 37: affidavit of the CEO of Napalm Records Handels GmbH.

Submissions and arguments of the parties

9. The revocation applicant argues as follows:

• The relevant period for the assessment of genuine use cannot include the period after 7 November 2018, the date when the EUTM proprietor became aware that the request for revocation might be filed. The relevant period of time to actually be considered in the present case is 7 December 2013 to 7 November 2018. There was no genuine use before 7 November 2018. This is apparent from the circumstances leading up to the revocation application.

• On 29 October 2018, the EUTM proprietor sent a cease-and-desist letter requesting that the revocation applicant refrain from using the ‘ABOUT YOU’ brand. On 7 November 2018, the revocation applicant requested proof of genuine use of the EUTM proprietor’s trade marks (Exhibit A7). The EUTM proprietor did not provide that evidence but proposed a ‘settlement-idea’ for the sale of the EUTM proprietor’s trade marks, which the revocation applicant rejected. On 30 November 2018, the EUTM proprietor filed an infringement action before the Vienna Commercial Court (54 Cg 134/18m) against the revocation applicant, demanding a Union-wide cease-and-desist order (Exhibit A8). Unaware yet of the Austrian infringement proceedings, revocation applications against the EUTM proprietor’s marks were filed. The proceedings before the Vienna Commercial Court have been suspended until the present proceedings are closed.

• None of the documents filed by the EUTM proprietor show the EUTM but different signs.

• The contested decision took into account documents that did not show the EUTM as evidence for (i) the alleged time (ii) the alleged place (iii) the alleged nature and (iv) the alleged extent of use.

• The use of alters the distinctive character of the EUTM. nearly vanishes as an element in the EUTM. The bold dash is the predominant sign in the EUTM. In any case, even if the use of does not alter the distinctive character of the EUTM, there is still insufficient evidence of use. Only a few documents show the use of .

• Evidence before the reference period and undated evidence cannot be taken into account.

• In relation to the extent of use, the contested decision only refers to two invoices: one dated 30 December 2013 sent to a client in Germany for 170 items of ‘clothing’ for a total amount of EUR 12 000 (Exhibit 17) and one dated 7 May 2018 sent to a client in Austria for 880 T‑shirts for EUR 2 640 (Exhibit 26). Those documents do not evidence genuine use of the EUTM .

• Exhibits 17 and 26 show the sign on top of an invoice. The use of that sign on the invoices is as a company name or logo and not as a trade mark.

• Exhibit 26, page 1 is a delivery notice (Lieferschein) for the free delivery of black shirts. Again, the EUTM proprietor has not proved use of the sign on shirts.

• There is only evidence of token, minimal or notional use for the sole purpose of preserving the rights conferred by the trade mark.

• The contested decision contradicts the basic principle 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.

10. The EUTM proprietor contends as follows:

• The revocation applicant’s remarks on business size and success manifestly contradict the essence of trade mark protection.

• The EUTM proprietor registered the EUTM in 2012 and invested substantial financial resources and manpower to establish its business two years before the revocation applicant was founded.

• It is not denied that the EUTM proprietor sent a warning letter to the revocation applicant, which was met with a request for proof of genuine use. The representatives agreed to initiate settlement negotiations, at the initiative of the revocation applicant’s representative. Given the substantial investments that had been made, the EUTM proprietor was not inclined to settle. The negotiations, however, never took place, as the revocation applicant failed to make any proposal and rejected a possible settlement a limine without further substantiation. The EUTM proprietor filed an infringement action against the revocation applicant on 30 November 2018 before the Commercial Court in Vienna, which has been suspended.

Relevant five-year period

• The EUTM proprietor presented three pieces of proof of genuine use for the period after 7 November 2018: (i) the publishing of the remodelled web page (Exhibits 27 and 28) and (ii) the delivery of the first batch of the newly produced linen-denim (Exhibit 29). Neither of these were triggered by the potential claim for revocation. The development and production of a newly invented linen denim was discussed and set in motion beforehand (Exhibit 21). Furthermore, the design and remodelling of a new web page takes – in particular for smaller companies such as the EUTM proprietor – a considerable amount of time and had, thus, been initiated well before 7 November 2018.

• Furthermore, the Cancellation Division took into account two invoices, one dated 30 December 2013 (Exhibit 17) and the other dated 7 May 2018 (Exhibit 26) and found that the EUTM had been put to genuine use before 7 November 2018. Therefore, the use of the trade mark after 7 November 2018 does not constitute the commencement or resumption of use.

Exhibits 1 to 16

• The revocation applicant errs in arguing that Exhibits 1 to 16 should be disregarded:

• Exhibits 1 and 2 are excerpts of Austria’s official companies register. Exhibit 3 is an affidavit of the CEO of the EUTM proprietor, which explicitly relates to the relevant period of time, and as a valid piece of evidence is not totally devoid of all probative value;

• Exhibits 4 to 7 show the design of the marketed products and the use of the mark to designate the registered goods;

• Exhibits 8 to 16 – even if they might not, taken on their own, establish genuine use – they complement the other evidence. Activities before and after the time period can indicate genuine use in the relevant period. Even advertising (catalogues, press notes, advertisements) in advance of the actual marketing of goods, if it is with a view to establishing a market for the goods, will generally be considered to constitute genuine use.

Evidence of use

• Not every single piece of evidence has to individually indicate the place, time and nature of use.

• It is sufficient if the evidence as a whole proves time of use. Even material submitted without any indication of a date of use may, in the context of an overall assessment, still be relevant and taken into consideration in conjunction with other pieces of evidence that show a date (17/02/2011, T‑324/09, Friboi, EU:T:2011:47, § 33).

• Single exhibits need not necessarily allude to all the relevant factors. Otherwise, invoices could seldom be used to prove the required extent of use because they rarely demonstrate the nature of use.

Time of use

• The time of use is demonstrated by the following documents:

• Exhibit 3 refers to the relevant time period;

• Exhibit 17 is dated 30 December 2013;

• Exhibit 18 provides usage statistics for the www.you-label.com website from July 2012 to August 2014;

• Exhibit 19 is dated in August 2014;

• Exhibit 20 is dated 14 August 2014;

• Exhibit 21 is dated 14 January2017;

• Exhibit 22 refers to May 2018;

• Exhibit 26 is dated 7 May 2018 and 3 December 2018;

• Exhibit 28 on the usage statistics for the www.youpster.com website from November and December 2018;

• Exhibit 29 is dated 21 November 2018.

• Other undated documents must be taken into account in conjunction with these exhibits.

Place of use

• The EUTM has been genuinely used in the European Union: the language of the documents is German; the currency mentioned is euros and the recipients and senders of invoices, deliveries and other correspondence are located in Austria (Exhibit 20; Exhibit 21; Exhibit 23; Exhibit 26; Exhibit 29) and Germany (Exhibit 17).

• Use in a single Member State (regardless of whether it is ‘not really large’) may be sufficient to satisfy the territorial condition of genuine use (06/10/2009, C‑301/07, Pago, EU:C:2009:611, § 27; or 19/12/2012, C‑149/11, Onel / Omel, EU:C:2012:816, § 50).

Nature of use

• The revocation applicant relies on an assessment of the different exhibits in isolation.

• The revocation applicant argues that the documents showing Y/O/U Label GmbH, i.e. Exhibit 17, Exhibit 20 and Exhibit 26, refer to the use of the sign as a company name and not as a trade mark to designate goods. The evidence submitted establishes the required connection between the mark and the sale of its goods. Exhibits 17 and 27, are invoices and Exhibits 20 and 26 are delivery notices concerning the registered goods. Page 2 of Exhibit 17 lists all the different items of clothing sold. Also, Exhibits 20 and 26 indicate the quantity and nature of items of clothing sold/delivered.

• The EUTM has been used on inside labels of the goods (see Exhibit 7 and Exhibit 25) and on the registered goods themselves (see Exhibit 5 and Exhibit 24). The items of ‘clothing’ sold and delivered were designated with the EUTM as displayed in the exhibits mentioned above as well as on several leaflets. Exhibits 5, 7, 17, 20, 25, 26 and 27 establish the required connection.

• The element of the EUTM is reproduced identically in the evidence. The only difference is the omission in use of the bold dash/backslash, which is a very common and trivial element. The public’s attention will focus on the element , which it cannot be disputed has been used, as proven by the evidence. The distinctiveness of the EUTM resides in the element and is only marginally influenced by the dash or backslash.

Extent of use

• No goods were offered ‘free of charge’. Page 1 of the delivery note states that the delivery was free of charge on the condition that the goods were not used and were returned. Pages 2 and 3 show that the delivered goods were invoiced and paid for. In any case, goods offered free of charge may still constitute genuine use when they are offered commercially, that is to say with the intention of creating or maintaining an outlet for those goods or services in the EU. The sample delivery to HE Brands was not simply a mere preparation to use the mark and not internal use.

• According to case-law, even minimal use of a trade mark can be sufficient to establish genuine use, depending on the goods and services, and the relevant market.

• The EUTM proprietor has shown that it has targeted and continues to target the defined and narrow market of high-end, sustainable, eco-friendly and locally sourced clothing. This market constitutes a more restrictive market. Therefore, the sale of over 170 labelled items on 30 December 2013 to ‘Kleidungsladen’ for a total amount of EUR 12 000, the sale of 880 labelled T-Shirts on 7 May 2018 to Napalm records for a total amount of EUR 2 640 and the sample delivery prove the extent of use.

Additional evidence filed on appeal

• The evidence filed before the Cancellation Division establishes genuine use. Notwithstanding, the EUTM proprietor files supplementary evidence.

• Exhibit 33 consists of the delivery note corresponding to the invoice dated 30 December 2013 issued to Kleidungsladen.de in Exhibit 17.

• Exhibit 34 consists of invoices that were issued by Kleidungsladen.de to its end-costumers as Exhibit 34, which demonstrate that clothing labelled with the EUTM were (re)sold on the relevant market in the period from 21 January 2014 to 7 June 2017.

• Exhibits 35 and 36 show the EUTM proprietor’s products were sold on the website www.avocadostore.de and on www.avocadostore.at on 30 September 2013 and are still available today. The screenshot of the ‘Internet Archive Wayback Machine’ captured the appearance of www.avocadostore.de on 30 September 2013 and two screenshots of www.avocadostore.de and www.avocadostore.at, respectively, were visited on 23 June 2020.

• The affidavit of the CEO of Napalm Records Handels GmbH provides information on the cooperation agreement concluded between Y/O/U Label GmbH and Napalm Records GmbH in May 2018.

Reasons

11. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

12. The appeal complies with Articles 66, 67 and Article 68(1) EUTMR. It is admissible.

Additional evidence filed with the defendant’s reply

13. Pursuant to Article 95(2) EUTMR, the Office may disregard facts or evidence which are not submitted in due time by the parties concerned. That provision grants the Office discretion to decide, while giving reasons for its decision, whether or not to take into account facts and evidence submitted out of time (13/03/2007, C‑29/05 P, ARCOL / CAPOL, EU:C:2007:162, § 43).

14. In accordance with settled case-law (13/03/2007, C‑29/05 P, ARCOL / CAPOL, EU:C:2007:162, § 44; see also 11/12/2014, T‑235/12, Grass in bottle (other), EU:T:2014:1058, § 62 and the case-law cited), which is now enshrined in Article 27(4) EUTDMR, the Board may accept facts or evidence submitted for the first time before it only where those facts or evidence are on the face of it, likely to be relevant for the outcome of the case and they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.

15. In the present case, the evidence has been provided in response to the statement of grounds on the insufficiency of the evidence. The evidence filed on appeal is relevant and supplements the evidence submitted previously before the Cancellation Division. The additional evidence filed on appeal is admitted by the Board exercising its discretionary power.

Article 58(1)(a) EUTMR

16. Article 58(1)(a) EUTMR provides that the rights of the proprietor of the EUTM shall be declared 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 European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use. It also provides that the commencement or resumption of use within a period of three months preceding the filing of the application for revocation shall however be disregarded where preparations for the commencement or resumption occur only after the proprietor became aware that the application for revocation may be filed.

17. Pursuant to 10(3) EUTDMR, the indications and evidence for the furnishing of proof of use shall consist of indications concerning the place, time, extent and nature of use of the trade mark for the goods and services in respect of which it is registered and evidence in support of these indications.

18. The ratio legis for the requirement that a mark must have been put to genuine use in order to be protected under EU law is that the Office’s register cannot be regarded as a strategic and static depository granting an inactive proprietor a legal monopoly for an unlimited period. On the contrary, and in accordance with recital 24 EUTMR, that register must faithfully reflect what companies actually use on the market to distinguish their goods and services in economic life (02/02/2016, T‑171/13, MOTOBI B PESARO, EU:T:2016:54, § 67 and the case-law cited).

19. In interpreting the notion of genuine use, account must be taken of the fact that the ratio for the requirement that the earlier mark must have been put to genuine use 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 (26/09/2013, C‑609/11 P, Centrotherm, EU:C:2013:1449, § 72, 74; 29/11/2018, C‑340/17P, ALCOLOCK, EU:C:2018:965, § 90; 02/02/2016, T‑171/13, MOTOBI B PESARO, EU:T:2016:54, § 49).

20. When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the 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 share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (11/03/2003, C‑40/01, Minimax, EU:C:2003:145, § 43).

21. In order to examine, in a particular case, whether an EU 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 implies certain interdependence between the factors taken into account. Thus, a low volume of goods marketed under the trade mark may be compensated for by a high intensity or a certain consistency over time of the use of that trade mark or vice versa. In addition, the turnover and the volume of sales of goods marketed under the earlier 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 mark and the characteristics of the products or services on the relevant market. As a result, the Court has stated that use of the mark at issue need not always be quantitatively significant in order to be deemed genuine. Even minimal use can therefore be sufficient to be deemed genuine, provided that it is viewed as warranted in the economic sector concerned in order to maintain or create a market share for the goods or services protected by the mark (02/02/2016, T‑171/13, MOTOBI B PESARO, EU:T:2016:54, § 72 and the case-law cited).

22. Although 10(3) EUTDMR refers to indications concerning the place, time, extent and nature of use, and gives examples of acceptable evidence, such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing, that provision does not state that each item of evidence must necessarily give information about all four elements to which proof of genuine use must relate, namely the place, time, nature and extent of use (16/11/2011, T‑308/06, Buffalo Milke, EU:T:2011:675, § 61; 24/05/2012, T‑152/11, Mad, EU:T:2012:263, § 33).

23. Moreover, it is settled case-law that it cannot be ruled out that an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (17/04/2008, C‑108/07 P, Ferro, EU:C:2008:234, § 36; 24/05/2012, T‑152/11, Mad, EU:T:2012:263, § 34). Proof of genuine use of the mark at issue must be established by taking into consideration all of the evidence submitted to the Board for assessment.

24. Article 58(1)(a) EUTMR does not require continuous and uninterrupted use of the contested mark within the relevant period, but rather only genuine use over the course of that period (see 05/10/2017, T‑337/16, VERSACCINO (fig.) / VERSACE et al., EU:T:2017:692, § 51).

25. 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 (12/12/2002, T-39/01, Hiwatt, EU:T:2002:316, § 47).

26. It is in light of those considerations that it is appropriate to consider whether the Cancellation Division was correct in finding that the documents produced proved genuine use of the EUTM for ‘clothing’ over the reference period.

Relevant period

27. The revocation applicant argues that the relevant period for the assessment of genuine use cannot include the period after 7 November 2018 and that the relevant period therefore extends from 7 December 2013 to 6 November 2018.

28. It argues that there was no genuine use before 7 November 2018 and it was on that date that the EUTM proprietor became aware that an application for revocation might be filed, when there was a request for proof of use of the EUTM following the cease-and-desist letter that the EUTM proprietor had sent to the revocation applicant.

29. In essence, the revocation applicant considers that following evidence cannot be taken into account:

    1. Exhibit 26: invoice dated 3 December 2018 issued sent by the EUTM proprietor to Napalm Records Handels GmbH in Austria, on the sale of 880 T‑shirts for EUR 2 640;

    2. Exhibits 27 and 28: screenshots from the EUTM proprietor’s new website www.youpster.com (since 10 November 2018) where the signs , ‘Y/O/U — YOUR ORIGINAL U!’ and the figurative sign ‘MAKES Y/O/U REAL’ are depicted on ‘clothing’ and usage statistics for that website for November 2018 and December 2018;

    3. Exhibit 29: invoice dated 21 November 2018, rendered by the clothing manufacturer Leinenweberei Vieböck GmbH to Y/O/U Label GmbH on the sale of 36 meters of linen denim for EUR 1 213.

30. Whilst the invoice on the sale of 880 T‑shirts for EUR 2 640 to Napalm Records Handels GmbH was issued on 3 December 2018, as the confirmation of the purchase in Exhibit 25 and the affidavit of the CEO of Napalm Records Handels GmbH corroborate, the order for those items was placed on 7 May 2018 in the context of the May 2018 agreement between the EUTM proprietor and Napalm Records Handels GmbH, that is several months earlier than 7 November 2018.

31. It is also very unlikely that the preparation and design of a website www.youpster.com which was available from 10 November 2018, would have been initiated in the three days after 7 November 2018.

32. As for the invoice dated 21 November 2018, rendered by the clothing manufacturer Leinenweberei Vieböck GmbH to Y/O/U Label GmbH on the sale 36 meters of linen denim for EUR 1 213, the evidence submitted shows that Leinenweberei Vieböck GmbH had already manufactured clothing for the EUTM proprietor in 2017 (see Exhibit 21: letter, dated 14 January 2017, sent relating to the manufacture of linen denim). Indeed, as the affidavit of the CEO of the EUTM proprietor explains, in 2017 it was decided to focus on linen denim and jeans, distributed by third parties, and the manufacturer Leinenweberei Vieböck GmbH was instructed to produce those products.

33. In light of above considerations, the Board finds no basis for the revocation applicant’s allegation that the evidence bearing a date after 7 November 2018 relates to activities that were initiated solely after 7 November 2018.

34. Furthermore, the present case does not concern a situation where there was no other evidence of use prior to 7 November 2018. The EUTM proprietor did not cease in its efforts to look for distributors (see Exhibits 17 to 21) after failing in its attempt in 2012 to launch the EUTM by selling directly to the consumer via retail stores in Austria and Berlin.

35. The relevant five-year period in this case extends from 7 December 2013 to 6 December 2018, inclusive.

Undated evidence

36. The undated illustration of how the sign was used on various T-shirts, shirts, trousers, dresses and skirts in Exhibits 5 to 7, the undated picture of a meeting with Napalm Records Handels GmbH with one of the persons pictured wearing a T-shirt bearing the sign , the undated image of the T‑shirt bearing on the inner collar the label (Exhibits 24 and 25) as well as the undated screenshots of the website www.youpster.com depicting the EUTM and the signs ‘Y/O/U — YOUR ORIGINAL U!’ and ‘MAKES Y/O/U REAL’ on ‘clothing’, merely show the range of goods in respect of which the registered mark was used and how that mark was displayed on the goods, which does not require that they be dated (see, to that effect, 13/022015, HUSKY, T‑287/13, EU:T:2015:99, § 68; 08/07/2020, T‑686/19, GNC LIVE WELL, § 45). Consequently, that argument that the undated documents cannot be taken into account must be rejected.

37. In any case, the Board notes that on appeal the EUTM proprietor has provided archived extracts from the Wayback Machine from the website www.avocadostore.de and dated 30 September 2013 disclosing clothing designated by the sign ‘Y/O/U’ as well as in Exhibit 34 invoices that were issued by Kleidungsladen.de to its end consumers for clothing designated by the sign ‘YOU’ which were (re)sold on the relevant market in the period from 21 January 2014 to 7 June 2017. The use of ‘YOU’ which having regard to the information that normally appears on an invoice is an acceptable variation on the use of the EUTM.

Evidence concerning the period prior to the reference period

38. It is also not possible to accept the revocation applicant’s argument that seeks to disregard the evidence submitted by the EUTM proprietor concerning the period before the relevant period. It is possible to take account of matters only outside of the reference period that enables the scope of use of the registered mark and the actual intentions of the holder during the latter period to be borne out or more accurately assessed. Provided that there is proof of use which relates to the relevant period, as in the present case, the documents from only outside that period, far from being irrelevant, can be taken into account and evaluated together with the rest of the evidence, since they can offer proof of real and genuine commercial exploitation of the mark (see, 08/04/2016, T‑638/14, FRISA / FRINSA F, EU:T:2016:199, § 38-40 and the case-law cited; 08/07/2020, T‑686/19, Gnc live well, EU:T:2020:320, § 46).

The affidavit of the CEO of the EUTM proprietor

39. The revocation applicant’s argument claiming that the affidavit of the CEO of the EUTM proprietor lacks objectivity must also be rejected. It is true according to settled case-law that affidavits from a person who has close links with the party concerned are of lower evidential value than those from third parties and they cannot therefore, on their own, constitute sufficient proof of use of the mark (see, 18/03/2015, T‑250/13, SMART WATER, EU:T:2015:160, § 30 and the case-law cited). In this case, the affidavit in question is supported by, and merely explains, the remaining evidence submitted (see, 12/03/2020, T‑321/19, Jokers WILD Casino (fig.), EU:T:2020:101, § 46 and the case-law cited).

40. Indeed, it is clear that the affidavit contains detailed and sound information regarding the place and duration of use of the EUTM for the contested goods which is borne out by the data found in other evidence submitted by the EUTM proprietor. Specifically, first of all, the statement contained in it that the EUTM is used for eco-friendly clothing produced in the European Union, namely, Germany, and sold in Austria and Germany over the reference period through distributors, at a price significantly higher than mass-produced clothing, is borne out, inter alia, by the remainder of the evidence.

41. To that extent, the affidavit and the evidence that support the claims made in it constitute credible evidence and make it possible for the numerous items of evidence submitted by the EUTM proprietor, proving use of the EUTM during the relevant period within Austria and Germany, to be placed within a specific context.

42. In the circumstances the Board finds no reason why the affidavit of the CEO of the EUTM proprietor, as indeed the affidavit of the CEO of the Austrian record company submitted on appeal, with which the EUTM proprietor’s subsidiary entered into a distributorship agreement and which purchased 880 T-shirts in the reference period, cannot be taken into account.

Time of use

43. Exhibits 17 to 21 bear dates in the reference period. Exhibit 23 refers to a May 2018 agreement between the EUTM proprietor’s subsidiary and the record company Napalm Records Handels GmbH and to the purchase by the latter on 7 May 2018 of a sample batch of 880 T‑shirts for EUR 2 640, which was invoiced on 3 December 2018 (Exhibit 26). Exhibit 29 is for an invoice issued to a German undertaking dated 21 November 2018. On appeal, further invoices bearing dates from 21 January 2014 to 7 June 2017 have been provided as well as archived extracts from the Wayback Machine for the website www.avocadostore.de dated 30 September 2013. There is therefore ample evidence for the reference period.

Place of use

44. The territories covered by the evidence are Austria and Germany. The invoice dated 30 December 2013 (Exhibit 17) was rendered to a German distributor which sold the goods to end customers from its German website (see Exhibit 34) and the other invoice dated 3 December 2018 was rendered to an Austrian Record label. Samples of the products were also sent to another Austrian company on 14 August 2014.

45. The EUTM proprietor did not restrict its activities to one Member State as the revocation applicant alleges when it states that use was made in a not very large Member State. In any case, use in Austria cannot be ignored simply because it is not a particularly large country as the revocation applicant alleges: It is not necessary that the mark should be used in an extensive geographical area for the use to be deemed genuine, and use restricted to the territory of a single Member State may satisfy the conditions for genuine use of an EUTM (06/10/2009, C‑301/07, Pago, EU:C:2009:611, § 27; or 19/12/2012, C‑149/11, Onel / Omel, EU:C:2012:816, § 50).

Nature of use: on whether there was use of only a company name

46. The revocation applicant claims, in particular, that, the presence of the name Y/O/U label GmbH at the top of many of the documents, is solely a reference to the owner of the mark at issue and that it does not refer in any way to the goods at issue.

47. It is true, as the Court of Justice has held, that the purpose of a company name is not, in itself, to distinguish goods or services, but to identify a company, and that where the use of a company name is limited to identifying a company or designating a business which is being carried on, such use cannot be considered as being ‘in relation to goods or services’ (see 11/09/2007, C‑17/06, Céline, EU:C:2007:497, § 21 and the case-law cited).

48. However, the fact that a word element is used as the company’s trade name does not preclude its use as a mark to designate goods and there is use ‘in relation to goods or services’ where the company name is used in such a way that a link is established between the sign which constitutes the company name and the goods or services marketed. Where that condition is satisfied, the fact that a word element is used as the company’s trade name does not preclude its use as a mark to designate goods or services (see 30/11/2009, T‑353/07, Coloris, EU:T:2009:475, § 38 and the case-law cited; 18/07/2017, T‑110/16, SAVANT, EU:T:2017:521, § 26).

49. Therefore, the fact that the sign ‘Y/O/U’ is part of the name of the subsidiary of the EUTM proprietor that uses the EUTM, as here, does not, as such, rule out the possibility that that sign may also be used as a trade mark.

50. The evidence of use in this case clearly establishes a link between the EUTM and the goods marketed by its subsidiary. The earlier mark is the house mark that designated all items of clothing that originated from the EUTM proprietor. This is borne out by the illustrations of how the above mark was used on T-shirts, shirts, trousers, dresses and skirts in Exhibits 5 to 7, the pictures of T-shirts bearing the sign in Exhibits 24 and 25, the screenshots from the EUTM proprietor’s website www.youpster.com (available from November 2018) where the sign is depicted alongside various items of clothing, the archived extracts of the website www.avocadostore.de dated 30 September 2013 (Exhibit 35) disclosing the EUTM proprietor’s products designated by the sign ‘Y/O/U’, the screenshots of the websites www.avocadostore.de and www.avocadostore.at showing that the EUTM proprietor`s products designated by the sign ‘Y/O/U’ were still offered on 23 June 2000, as well as the invoices in Exhibit 34 that were issued by Kleidungsladen.de to its end consumers for clothing designated by the sign ‘YOU’ that were (re)sold on the relevant market in the period from 21 January 2014 to 7 June 2017. As has already been pointed out, the use of ‘YOU’ which having regard to the information that normally appears on an invoice is an acceptable variation on use of the EUTM.

On whether the signs in the forms used differ materially from the EUTM as registered

51. The revocation applicant refers to the sign and argues that it alters the distinctive character of the EUTM. It argues that the omission in the use of the bold backslsh alters the distinctive character of the EUTM as registered.

52. Insofar as concerns the variants of the contested mark, it should be pointed out that, under Article 18(1)(a) EUTMR, proof of genuine use of an EU trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of that mark in the form in which it was registered. The distinctive character of a mark means that that trade mark must serve to identify the product or service in respect of which registration has been sought as originating from a particular undertaking, and thus to distinguish that product or service from those of other undertakings (see, by analogy, 8/07/2013, C‑252/12, Specsavers, EU:C:2013:497, § 22 and the case-law cited).

53. The purpose of Article 18(1)(a) EUTMR is to avoid imposing strict conformity between the used form of the trade mark and the form in which the mark was registered and to allow its proprietor, on the occasion of its commercial exploitation, to make variations in the sign, which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In such situations, where the sign used in trade differs from the form in which it was registered only in negligible elements, so that the two signs can be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the trade mark registered may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (23/02/2006, T-194/03, Bainbridge, EU:T:2006:65, § 50).

54. A finding of an alteration of the distinctive character of the mark as registered
    requires an assessment of the distinctive and dominant character of the added
    elements based on the intrinsic qualities of each of those elements and the relative
    position of the different elements within the arrangement of the trade mark
    (12/03/2014, T-381/12, Palma Mulata, EU:T:2014:119, § 30; see also 10/06/2010, T-482/08, Atlas Transport, EU:T:2010:229, § 31 and case-law cited).

55. In that regard, it is settled case-law that if the differences between the sign as it is used and the sign as it was registered are only negligible, strict compliance is not necessary; it is sufficient that the form in which the signs are used is broadly equivalent (see 30/11/2016, T‑2/16, Pret | A | Diner / PRET A MANGER (fig.) et al., EU:T:2016:690, § 48 and the case-law cited).

56. It must be examined in light of the rules set out above, firstly, whether, in the present case, the differences between the sign in its registered form and the sign in its forms used on the market are such so as to alter the distinctive character of the contested mark in the form in which it was registered.

57. Though the revocation applicant refers only to the sign , the Board points out that there is ample evidence of the use of the sign ‘Y/O/U’ in Exhibits 5 to 7 and Exhibits 24 and 25, the screenshots from the EUTM proprietor’s website www.youpster.com (available depicting the sign ‘Y/O/U’ on various items of clothing, archived extracts of the website www.avocadostore.de dated 30 September 2013 (Exhibit 35) and disclosing the EUTM proprietor’s products designated by the sign ‘Y/O/U’, as well as the screenshots of the websites www.avocadostore.de and www.avocadostore.at showing that the EUTM proprietor`s products designated by the sign ‘Y/O/U’ were sold to the German online retailer Kleidungsladen, evidenced by the invoice dated 30 December 2013 and were still available on 23 June 2020. This is corroborated by the article in Exhibit 15 referring to ‘Y/O/U’ clothing and the fashion label ‘Y/O/U’.

58. It is true that in all the variants used, the device of the parallelogram, which the parties refer to as a large bold dash or the large backslash, is not present. Furthermore, undeniably, that device occupies a significant part of the EUTM as registered.

59. Nevertheless, it must be stated that by virtue of its shape as  a quadrilateral with opposite sides parallel, it is banal, which even if it attracts the attention of the relevant public it will not be considered as an indication of the origin of the EUTM proprietor’s goods. The element by which the goods of the earlier mark will be identified and referred to is sign which is included in the component , , which the EUTM reproduces without any variation.

60. The wording ‘Your Original U’ followed by the barely legible copyright sign, which in many documents is omitted, appearing in small letters is clearly a secondary element in the sign that merely promotes the originality and uniqueness of the EUTM proprietor’s clothing and the notion that the wearer will stand out and express his or her individuality.

61. It follows that neither nor alter the distinctive character of the EUTM. The Cancellation Division was entitled to find that the differences between the EUTM as registered and as used in the course of trade to designate the goods concerned did not alter the distinctive character of the EUTM. Accordingly, the revocation applicant’s argument that a different mark has been used must be rejected.

Extent of use

62. The evidence discloses use for clothing, in particular, blouses, shirts, T-shirts, dresses, jeans, trousers, skirts and coats.

63. Sales of these items have been evidenced by two invoices, one dated 30 December 2013 rendered by the EUTM proprietor to Kleidungsladen, in Germany, on the sale of 170 items of ‘clothing’ (capsule collection of skirts, dresses, trench coats, jeans, blousons) for the total amount of EUR 12 000, and an invoice dated 3 December 2018 sent by the EUTM proprietor to Napalm Records Handels GmbH in Austria for the sale of 880 T‑shirts for EUR 2 640. Both invoices were rendered to distributors for further sale to the end consumers. Actual sales to end consumers have been corroborated by various invoices issued by the German distributor from 21 January 2014 to 7 June 2017 in Exhibit 34.

64. In addition, with a view to concluding a distributorship agreement with another German company, a sample delivery of three skirts and two trench coats was sent by the EUTM proprietor on 14 August 2014 (see Exhibits 19 and 20). As the affidavit of the CEO has explained, efforts were made to actively promote the goods under the ‘Y/O/U’ trade mark by securing distributorship agreements. The sample items were offered with the intention of creating or maintaining an outlet for those goods in the EU and can also be taken into account.

65. The revocation applicant argues that the quantities sold were minimal and can only amount to token use of the contested EUTM. In that regard, according to case-law, even minimal use of a trade mark can be sufficient to establish genuine use, depending on the goods and services, and the relevant market. Thus, the EUTM proprietor has rightly drawn attention to the Vitafruit’ and ‘Les Éclaires’ judgments: use of a trade mark for 293 crates each containing 12 bottles of concentrated fruit juice which corresponded to sales of approximately EUR 4 800, (08/07/2004, T‑203/02, Vitafruit, EU:T:2004) and the sale of 75 pairs of jeans in the high end ‘clothing’ market (see 08/05/2017, T-680/15, Les Éclaires, EU:T:2017:320, §62) constituted genuine use.

66. In this case, the evidence discloses the use of signs that do not alter the distinctive character of the contested EUTM for eco-friendly clothing produced from linen and/or hemp manufactured in the EU that retail at a significantly higher price than mass-produced clothing produced in third countries. This can be seen from the prices disclosed in the invoices issued by Kleidungsladen.de for sales to the end consumers from 21 January 2014 to 7 June 2017 in Exhibit 34, the prices disclosed in the archived extracts from the Wayback Machine for the website www.avocadostore.de dated 30 September 2013 in Exhibit 35 and the prices in the current screenshots of the websites www.avocadostore.de and www.avocadostore.at in Exhibit 36, which exceed those of the fast fashion retailer in Exhibit 30. Having regard to the eco-friendly nature of the clothing, the quantities on the invoices and in the sample delivery notes fulfil the extent of use requirement.

Conclusion

67. The evidence as a whole provides, to the requisite legal standard, sufficient indications on the time, place, nature, and extent of use and, therefore of the genuine use of the contested EUTM for clothing in variants that do not alter its distinctive character, which cannot be considered to be token use of the contested EUTM.

68. The appeal is accordingly dismissed.

Costs

69. Pursuant to Article 109(1) EUTMR and Article 18 EUTMIR, the revocation applicant, as the losing party, must bear the EUTM proprietor’s costs of the appeal proceedings.

70. These consist of the EUTM proprietor’s costs of professional representation of EUR 550.

71. As to the revocation proceedings, the Cancellation Division ordered each party to bear its own costs.

Order

On those grounds,

THE BOARD

hereby:

1. Dismisses the appeal;

2. Orders the revocation applicant to pay EUR 550 for the EUTM proprietor’s representation costs of the appeal proceedings.

Signed V. Melgar

Signed C. Govers

Signed A. Pohlmann

Registrar: Signed H.Dijkema