Fons Iuris
Torna alla ricerca
Corte di giustizia UEsentenza

Corte di giustizia UE n. 1412/2018

ECLI:EU:C:2018:519
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

26 June 2018 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — Revocation proceedings — Word mark [OSCURATO:PERSONA] — Genuine use — Consent of the proprietor of the trade mark)

[OSCURATO:PERSONA] C‑325/17 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 31 May 2017,

[OSCURATO:PERSONA] LLP,

established in London ([OSCURATO:PERSONA]), represented by S. Malynicz, QC, instructed by S. Britton and S. Tregear, Solicitors, appellant, the other parties to the proceedings being:

[OSCURATO:PERSONA] (EUIPO),

represented by D. Botis and J. [OSCURATO:PERSONA], acting as Agents, defendant at first instance,

[OSCURATO:PERSONA],

residing in London, represented by B. Brandreth, Barrister, instructed by C. Fehler, Solicitor, intervener at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of C. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], E. Juhász and C. Lycourgos, Judges,

[OSCURATO:PERSONA]: H. [OSCURATO:PERSONA],

[OSCURATO:PERSONA]: A. [OSCURATO:PERSONA],

having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following

[OSCURATO:PERSONA]

1 By its appeal, [OSCURATO:PERSONA] LLP asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 22 March 2017,

[OSCURATO:PERSONA]

v

EUIPO — [OSCURATO:PERSONA] ([OSCURATO:PERSONA])

(T‑336/15, ‘the contested judgment’, EU:T:2017:197), by which that [OSCURATO:PERSONA] dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 18 March 2015 ([OSCURATO:PERSONA] R 1412/2014-1), relating to revocation proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (‘the contested decision’).

Background to the dispute 2 In the judgment under appeal, the [OSCURATO:PERSONA] summarised the factual background to the dispute before it as follows: ‘1 On 27 July 2005, the intervener, [OSCURATO:PERSONA], obtained the registration, under the number 3725082, of the EU word mark [OSCURATO:PERSONA] from [EUIPO], pursuant to [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1)). 2 The goods and services in respect of which [that mark] was registered were in Classes 9, 16, 25 and 41 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description: ... 3 On 30 October 2012, the applicant, [OSCURATO:PERSONA] ... filed an application for revocation of [the mark], on the basis of [OSCURATO:PERSONA] 51(1)(a) of [OSCURATO:PERSONA] 207/2009, in respect of all of the goods and services referred to in paragraph 2 above, on the ground of lack of genuine use of that mark. 4 By decision of 17 March 2014 the [OSCURATO:PERSONA] partially upheld the application for revocation.

It revoked the [EU word mark [OSCURATO:PERSONA]] in respect of the goods and services referred to in paragraph 2 above, with the exception of ‘compact discs [audio-video]’ and ‘electronic publications [downloadable]’ in Class 9, for which it maintained the validity of the registration of [that] mark. 5 On 19 May 2014, [[OSCURATO:PERSONA]] filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of [OSCURATO:PERSONA] 207/2009, against the decision of the [OSCURATO:PERSONA] in so far as that division had maintained the validity of the registration of [that] mark in respect of the goods referred to in paragraph 4 above. 6 By [the contested decision], the [OSCURATO:PERSONA] of Appeal of EUIPO upheld the appeal in part.

It annulled the decision of the [OSCURATO:PERSONA] in so far as that division had maintained the validity of the registration of the [EU word mark [OSCURATO:PERSONA]] in respect of ‘electronic publications [downloadable]’ in Class 9 and revoked that mark in respect of those goods.

By contrast, it confirmed the validity of [that mark] in respect of ‘compact discs [audio-video]’ in Class 9, on the ground that that mark had been used by a third party with [[OSCURATO:PERSONA]] consent and had been put to genuine use in connection with those goods.’ 3 As regards that consent, it should be added that, in paragraphs 37 to 45 of the contested decision, the [OSCURATO:PERSONA] of Appeal of EUIPO (‘the [OSCURATO:PERSONA] of Appeal’) rejected [OSCURATO:PERSONA] argument that, by virtue of the agreement concluded on 8 June 1979 between [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’) and ‘[OSCURATO:PERSONA]’, the music group of Mr. [OSCURATO:PERSONA] (‘the agreement of 8 June 1979’), [OSCURATO:PERSONA] had assigned to the latter the rights to the EU word mark [OSCURATO:PERSONA] (‘the contested mark’).

It concluded that that mark had been used by [OSCURATO:PERSONA] with the consent of [OSCURATO:PERSONA].

The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 4 By application lodged at the Registry of the [OSCURATO:PERSONA] on 25 June 2015, [OSCURATO:PERSONA] brought an action for annulment of the contested decision. 5 In support of its action, [OSCURATO:PERSONA] had relied on a single plea in law alleging, in essence, infringement of [OSCURATO:PERSONA] 15(2) of [OSCURATO:PERSONA] 207/2009 in that the [OSCURATO:PERSONA] of Appeal erred in finding that [OSCURATO:PERSONA] had, for the purposes of that provision, validly consented to the use of the contested mark by a third party. 6 That plea consisted of five complaints, alleging (i) failure to consider [OSCURATO:PERSONA] 15(2) of [OSCURATO:PERSONA] 207/2009, (ii) infringement the concept of ‘consent’ as an autonomous concept of EU law, (iii) reversal of the burden of proving consent to the use of the contested mark by a third party, (iv) failure to consider certain provisions of the agreement of 8 June 1979 and (v) taking into account irrelevant considerations. 7 It is indicated in paragraphs 12 and 13 of the judgment under appeal that, in its application, [OSCURATO:PERSONA] did not dispute the [OSCURATO:PERSONA] of Appeal’s assessment that the contested mark had been put to genuine use in relation to ‘compact discs [audio-video]’. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] dismissed as inadmissible the claim, raised by [OSCURATO:PERSONA] for the first time at the hearing of 6 December 2016, that the amount of the royalties paid to [OSCURATO:PERSONA] was too low to establish genuine use of the contested mark.

It held that that claim could not be considered to be an amplification of the abovementioned single plea or to be closely connected with it. 8 By letter of 9 January 2017, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that it had wrongly associated royalty payments paid by the [OSCURATO:PERSONA] (BBC), produced as evidence, with a compact disc and that, therefore, the [OSCURATO:PERSONA] should not take account of the part of his arguments based on that evidence.

As it is not a document provided for in the Rules of Procedure of the [OSCURATO:PERSONA], that letter was not added to the case file. 9 On 24 February 2017, [OSCURATO:PERSONA] lodged a request to reopen the oral procedure.

That request was rejected by the [OSCURATO:PERSONA]. 10 By the judgment under appeal, the [OSCURATO:PERSONA] dismissed the action of [OSCURATO:PERSONA] and ordered it to pay the costs of the proceedings.

Forms of order sought by the parties to the appeal 11 [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to set aside the judgment under appeal and order EUIPO and [OSCURATO:PERSONA] to pay the costs. 12 EUIPO and [OSCURATO:PERSONA] contend that the [OSCURATO:PERSONA] should dismiss the appeal and order [OSCURATO:PERSONA] to pay the costs.

The appeal 13 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may, at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 14 That provision should be applied to the present appeal. 15 [OSCURATO:PERSONA] raises four grounds in support of its appeal.

The first ground of appeal, alleging distortion of the evidence and incorrect assessment of the facts [OSCURATO:PERSONA] of the parties 16 By its first plea, [OSCURATO:PERSONA] criticises the [OSCURATO:PERSONA] for not having taken into account, in the judgment under appeal, the withdrawal by [OSCURATO:PERSONA], by his letter of 9 January 2017, of the evidence consisting of the royalty payments by the BBC. 17 According to [OSCURATO:PERSONA], it is apparent, inter alia, from paragraphs 37, 54, 58 and 61 of the judgment under appeal that, in finding that [OSCURATO:PERSONA] had succeeded in demonstrating use of the contested trade mark with its consent, the [OSCURATO:PERSONA] took into account, without distinction, the royalties paid by third parties who used that trade mark, thus including those paid by the BBC. 18 [OSCURATO:PERSONA], [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] distorted the facts and evidence by considering the royalties paid by third parties in their entirety in the judgment under appeal, despite the formal withdrawal by [OSCURATO:PERSONA].

That distortion is, it is claimed, evident having regard to the documents which were or should have been included in the [OSCURATO:PERSONA] case file. 19 EUIPO and [OSCURATO:PERSONA] consider that this ground of appeal must be rejected.

Findings of the [OSCURATO:PERSONA] 20 The distortion alleged by [OSCURATO:PERSONA] is based on the allegation that the [OSCURATO:PERSONA] based its decision, in the judgment under appeal, on the evidence of use of the mark at issue adduced by [OSCURATO:PERSONA], without taking into account the fact that some of that evidence, namely the royalties paid by the BBC, had been withdrawn by [OSCURATO:PERSONA]. 21 However, the action brought by [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] was directed solely against the [OSCURATO:PERSONA] of Appeal’s finding that [OSCURATO:PERSONA] had consented to the use of the contested mark by a third party.

As is apparent from paragraphs 37 to 45 of the contested decision, which fall under the heading ‘Consent of the [contested mark] proprietor’, that question concerned whether that mark had been used by [OSCURATO:PERSONA] with the consent of [OSCURATO:PERSONA], which [OSCURATO:PERSONA] contested, arguing that, under the agreement of 8 June 1979, he had assigned the rights to that mark to [OSCURATO:PERSONA]. 22 In that regard, it is clear from paragraphs 37, 54, 55, 58 and 61 of the judgment under appeal, some of which are cited by [OSCURATO:PERSONA], that the evidence referred to in those paragraphs is that from which the [OSCURATO:PERSONA] of Appeal, in paragraphs 42 to 45 of the contested decision, referred to in those paragraphs of the judgment under appeal, inferred the consent of [OSCURATO:PERSONA] to the use of the contested mark by [OSCURATO:PERSONA]. 23 Having regard to the subject matter of the dispute before the [OSCURATO:PERSONA], as set out in paragraph 21 of the present order, the references made, in the judgment under appeal, to the royalties paid by third parties therefore did not relate to the royalties paid by the BBC. 24 It should be added that, in his response lodged before the [OSCURATO:PERSONA], [OSCURATO:PERSONA] had invoked the royalties paid by the BBC only in the eventuality that all his arguments made in relation to the agreement of 8 June 1979, in response to the single plea of [OSCURATO:PERSONA], were rejected. 25 It follows that the allegation of distortion of the evidence, in so far as the conclusions reached by the [OSCURATO:PERSONA] in the contested judgment are partly dependent on evidence relating to royalties paid by the BBC, notwithstanding the fact that [OSCURATO:PERSONA] had withdrawn that evidence, would not, in any event, have any effect on the correctness of those conclusions. 26 [OSCURATO:PERSONA], the first ground of appeal must be rejected as manifestly ineffective.

The second ground of appeal, alleging infringement of [OSCURATO:PERSONA] 113 of the Rules of Procedure of the [OSCURATO:PERSONA] of the parties 27 By its second ground of appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 113(2) of its Rules of Procedure by rejecting the application to reopen the oral procedure which [OSCURATO:PERSONA] had lodged because of the withdrawal, by [OSCURATO:PERSONA], of the evidence relating to the royalties paid by the BBC. 28 According to [OSCURATO:PERSONA], that withdrawal was highly significant for its action before the [OSCURATO:PERSONA] and the latter should have ordered the reopening of the oral procedure on the grounds, under [OSCURATO:PERSONA] 113(2)(a) and (b) of the Rules of Procedure, first, that the [OSCURATO:PERSONA] lacked sufficient information as to why [OSCURATO:PERSONA] had produced and relied on false evidence concerning the use of the contested mark and, secondly, that there was a risk that the case would be decided on the basis of an argument which had not been debated between the parties, namely the effect of the withdrawal of that evidence and the consequences of that withdrawal for the remainder of the case. 29 EUIPO and [OSCURATO:PERSONA] contend that this ground of appeal must be rejected.

Findings of the [OSCURATO:PERSONA] 30 [OSCURATO:PERSONA] 113(2)(a) and (b) of the Rules of Procedure of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] may order the reopening of the oral part of the procedure if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties. 31 It follows from the very wording of that provision that the [OSCURATO:PERSONA] has the power, but not the obligation, to order the reopening of the oral part where the conditions for the exercise of the power set out in that provision are fulfilled.

It follows that the rejection by the [OSCURATO:PERSONA] of an application to reopen the oral procedure is not of such a nature as to constitute, in itself, an infringement of [OSCURATO:PERSONA] 113(2). 32 In any event, as is apparent from the [OSCURATO:PERSONA] assessment of the first ground of appeal, neither [OSCURATO:PERSONA] action before the [OSCURATO:PERSONA] nor the judgment under appeal were based, even in part, on the evidence relating to the royalties paid by the BBC, so that the conditions for the exercise of the [OSCURATO:PERSONA] power as regards the reopening of the oral phase, as set out in [OSCURATO:PERSONA] 113(2)(a) and (b) of the Rules of Procedure of the [OSCURATO:PERSONA], were not met on account of the withdrawal of that evidence. 33 It follows that the second ground of the appeal must be rejected as manifestly unfounded.

The third ground of appeal, alleging wrongful classification of a plea raised at the hearing as being new [OSCURATO:PERSONA] of the parties 34 By its third ground of appeal, [OSCURATO:PERSONA] criticises the [OSCURATO:PERSONA] for having, in paragraphs 12 and 13 of the judgment under appeal, rejected as inadmissible its argument, raised at the hearing, that the amount of the royalties paid to [OSCURATO:PERSONA] was too low to establish genuine use of the contested mark, on the ground that, in its application, it had not called into question the [OSCURATO:PERSONA] of Appeal’s assessment regarding genuine use of that mark. 35 In that regard, [OSCURATO:PERSONA] argues that it had a right to respond to the evidence concerning the royalties paid by the BBC, on which [OSCURATO:PERSONA] relied in his reply and at the hearing. 36 EUIPO and [OSCURATO:PERSONA] contend that that ground of appeal should be rejected.

Findings of the [OSCURATO:PERSONA] 37 It should be noted that [OSCURATO:PERSONA] does not dispute the finding made by the [OSCURATO:PERSONA] in paragraphs 12 and 13 of the judgment under appeal, that it had not criticised, in its application, the assessment made by the [OSCURATO:PERSONA] of Appeal regarding the genuine use of the contested mark and that the allegation, raised for the first time at the hearing, that the amount of royalties produced by [OSCURATO:PERSONA] was too low to establish such a genuine use does not constitute an amplification of the single plea advanced in support of the action of [OSCURATO:PERSONA] nor was it closely connected with that plea. 38 Furthermore, it is apparent from the contested decision and from the judgment under appeal that those royalties had already been invoked before the [OSCURATO:PERSONA] of Appeal, which [OSCURATO:PERSONA] does not contest, so that it would have been possible to dispute, in the context of the proceedings before that [OSCURATO:PERSONA], that genuine use of the contested mark could be demonstrated by the allegedly low amount of the royalties. 39 It follows that the [OSCURATO:PERSONA] did not err in law by rejecting as inadmissible the allegation relating to the amount of royalties paid to [OSCURATO:PERSONA], on the ground that that allegation was raised for the first time at the hearing. 40 Accordingly, the third ground of appeal must be rejected as manifestly unfounded.

Fourth ground of appeal, alleging failure to appreciate the legal effect of assignment [OSCURATO:PERSONA] of the parties 41 [OSCURATO:PERSONA] criticises the [OSCURATO:PERSONA] for failing to appreciate the legal consequences of an assignment in the light of the evidence provided by the proprietor of the contested trade mark, those consequences being that the proprietor unequivocally renounced his rights to that trade mark. 42 In that regard, it cites certain clauses of the agreement of 8 June 1979 in order to show that [OSCURATO:PERSONA] had not granted a licence under which [OSCURATO:PERSONA] had used the contested mark with his consent but had assigned his rights to that mark. 43 EUIPO and [OSCURATO:PERSONA] contend that this ground of appeal must be rejected.

Findings of the [OSCURATO:PERSONA] 44 By this ground of appeal, [OSCURATO:PERSONA] confines itself, in essence, to repeating certain arguments put forward before the [OSCURATO:PERSONA] in the context of the fourth complaint of the single plea in its action, by which it claimed that the [OSCURATO:PERSONA] of Appeal had failed to take account of provisions of the agreement of 8 June 1979, from which it is apparent that [OSCURATO:PERSONA] had assigned the rights to use the name of the group ‘[OSCURATO:PERSONA]’, including as a trade mark, so that he was no longer the proprietor of those rights. 45 In so doing, [OSCURATO:PERSONA] does not challenge the conclusion of the [OSCURATO:PERSONA] in paragraph 50 of the judgment under appeal, that the question whether or not [OSCURATO:PERSONA] had assigned the rights to the name of the group ‘[OSCURATO:PERSONA]’ under the agreement of 8 June 1979 is not relevant to establish that the contested mark, which was registered on 27 July 2005, and therefore subsequent to the date of conclusion of that agreement, had not been put to genuine use by [OSCURATO:PERSONA] or with his consent.

In the absence of such a challenge, the argument that Mr. [OSCURATO:PERSONA] had assigned his rights to the contested mark when that agreement was concluded is manifestly ineffective. 46 [OSCURATO:PERSONA], the fourth ground of appeal must be rejected as manifestly ineffective. 47 In the light of the foregoing, the appeal must be dismissed in its entirety as being manifestly unfounded.

Costs 48 [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to the costs. [OSCURATO:PERSONA] 138(1) of those Rules, applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 49 Since EUIPO and [OSCURATO:PERSONA] have applied for costs to be awarded against [OSCURATO:PERSONA] and the latter has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EUIPO and [OSCURATO:PERSONA].

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed as being manifestly unfounded.

2. [OSCURATO:PERSONA] LLP shall pay the costs.

Luxembourg, 26 June 2018.

A. [OSCURATO:PERSONA]

C. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 26 June 2018 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — Revocation proceedings — Word mark [OSCURATO:PERSONA] — Genuine use — Consent of the proprietor of the trade mark) [OSCURATO:PERSONA] C‑325/17 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 31 May 2017, [OSCURATO:PERSONA] LLP, established in London ([OSCURATO:PERSONA]), represented by S. Malynicz, QC, instructed by S. Britton and S. Tregear, Solicitors, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] (EUIPO), represented by D. Botis and J. [OSCURATO:PERSONA], acting as Agents, defendant at first instance, [OSCURATO:PERSONA], residing in London, represented by B. Brandreth, Barrister, instructed by C. Fehler, Solicitor, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], E. Juhász and C. Lycourgos, Judges, [OSCURATO:PERSONA]: H. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] LLP asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 22 March 2017, [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑336/15, ‘the contested judgment’, EU:T:2017:197), by which that [OSCURATO:PERSONA] dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 18 March 2015 ([OSCURATO:PERSONA] R 1412/2014-1), relating to revocation proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (‘the contested decision’). Background to the dispute 2 In the judgment under appeal, the [OSCURATO:PERSONA] summarised the factual background to the dispute before it as follows: ‘1      On 27 July 2005, the intervener, [OSCURATO:PERSONA], obtained the registration, under the number 3725082, of the EU word mark [OSCURATO:PERSONA] from [EUIPO], pursuant to [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1)). 2      The goods and services in respect of which [that mark] was registered were in Classes 9, 16, 25 and 41 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description: ... 3      On 30 October 2012, the applicant, [OSCURATO:PERSONA] ... filed an application for revocation of [the mark], on the basis of [OSCURATO:PERSONA] 51(1)(a) of [OSCURATO:PERSONA] 207/2009, in respect of all of the goods and services referred to in paragraph 2 above, on the ground of lack of genuine use of that mark. 4      By decision of 17 March 2014 the [OSCURATO:PERSONA] partially upheld the application for revocation. It revoked the [EU word mark [OSCURATO:PERSONA]] in respect of the goods and services referred to in paragraph 2 above, with the exception of ‘compact discs [audio-video]’ and ‘electronic publications [downloadable]’ in Class 9, for which it maintained the validity of the registration of [that] mark. 5      On 19 May 2014, [[OSCURATO:PERSONA]] filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of [OSCURATO:PERSONA] 207/2009, against the decision of the [OSCURATO:PERSONA] in so far as that division had maintained the validity of the registration of [that] mark in respect of the goods referred to in paragraph 4 above. 6      By [the contested decision], the [OSCURATO:PERSONA] of Appeal of EUIPO upheld the appeal in part. It annulled the decision of the [OSCURATO:PERSONA] in so far as that division had maintained the validity of the registration of the [EU word mark [OSCURATO:PERSONA]] in respect of ‘electronic publications [downloadable]’ in Class 9 and revoked that mark in respect of those goods. By contrast, it confirmed the validity of [that mark] in respect of ‘compact discs [audio-video]’ in Class 9, on the ground that that mark had been used by a third party with [[OSCURATO:PERSONA]] consent and had been put to genuine use in connection with those goods.’ 3 As regards that consent, it should be added that, in paragraphs 37 to 45 of the contested decision, the [OSCURATO:PERSONA] of Appeal of EUIPO (‘the [OSCURATO:PERSONA] of Appeal’) rejected [OSCURATO:PERSONA] argument that, by virtue of the agreement concluded on 8 June 1979 between [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’) and ‘[OSCURATO:PERSONA]’, the music group of Mr. [OSCURATO:PERSONA] (‘the agreement of 8 June 1979’), [OSCURATO:PERSONA] had assigned to the latter the rights to the EU word mark [OSCURATO:PERSONA] (‘the contested mark’). It concluded that that mark had been used by [OSCURATO:PERSONA] with the consent of [OSCURATO:PERSONA]. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 4 By application lodged at the Registry of the [OSCURATO:PERSONA] on 25 June 2015, [OSCURATO:PERSONA] brought an action for annulment of the contested decision. 5 In support of its action, [OSCURATO:PERSONA] had relied on a single plea in law alleging, in essence, infringement of [OSCURATO:PERSONA] 15(2) of [OSCURATO:PERSONA] 207/2009 in that the [OSCURATO:PERSONA] of Appeal erred in finding that [OSCURATO:PERSONA] had, for the purposes of that provision, validly consented to the use of the contested mark by a third party. 6 That plea consisted of five complaints, alleging (i) failure to consider [OSCURATO:PERSONA] 15(2) of [OSCURATO:PERSONA] 207/2009, (ii) infringement the concept of ‘consent’ as an autonomous concept of EU law, (iii) reversal of the burden of proving consent to the use of the contested mark by a third party, (iv) failure to consider certain provisions of the agreement of 8 June 1979 and (v) taking into account irrelevant considerations. 7 It is indicated in paragraphs 12 and 13 of the judgment under appeal that, in its application, [OSCURATO:PERSONA] did not dispute the [OSCURATO:PERSONA] of Appeal’s assessment that the contested mark had been put to genuine use in relation to ‘compact discs [audio-video]’. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] dismissed as inadmissible the claim, raised by [OSCURATO:PERSONA] for the first time at the hearing of 6 December 2016, that the amount of the royalties paid to [OSCURATO:PERSONA] was too low to establish genuine use of the contested mark. It held that that claim could not be considered to be an amplification of the abovementioned single plea or to be closely connected with it. 8 By letter of 9 January 2017, [OSCURATO:PERSONA] informed the [OSCURATO:PERSONA] that it had wrongly associated royalty payments paid by the [OSCURATO:PERSONA] (BBC), produced as evidence, with a compact disc and that, therefore, the [OSCURATO:PERSONA] should not take account of the part of his arguments based on that evidence. As it is not a document provided for in the Rules of Procedure of the [OSCURATO:PERSONA], that letter was not added to the case file. 9 On 24 February 2017, [OSCURATO:PERSONA] lodged a request to reopen the oral procedure. That request was rejected by the [OSCURATO:PERSONA]. 10 By the judgment under appeal, the [OSCURATO:PERSONA] dismissed the action of [OSCURATO:PERSONA] and ordered it to pay the costs of the proceedings. Forms of order sought by the parties to the appeal 11 [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to set aside the judgment under appeal and order EUIPO and [OSCURATO:PERSONA] to pay the costs. 12 EUIPO and [OSCURATO:PERSONA] contend that the [OSCURATO:PERSONA] should dismiss the appeal and order [OSCURATO:PERSONA] to pay the costs. The appeal 13 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may, at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 14 That provision should be applied to the present appeal. 15 [OSCURATO:PERSONA] raises four grounds in support of its appeal. The first ground of appeal, alleging distortion of the evidence and incorrect assessment of the facts [OSCURATO:PERSONA] of the parties 16 By its first plea, [OSCURATO:PERSONA] criticises the [OSCURATO:PERSONA] for not having taken into account, in the judgment under appeal, the withdrawal by [OSCURATO:PERSONA], by his letter of 9 January 2017, of the evidence consisting of the royalty payments by the BBC. 17 According to [OSCURATO:PERSONA], it is apparent, inter alia, from paragraphs 37, 54, 58 and 61 of the judgment under appeal that, in finding that [OSCURATO:PERSONA] had succeeded in demonstrating use of the contested trade mark with its consent, the [OSCURATO:PERSONA] took into account, without distinction, the royalties paid by third parties who used that trade mark, thus including those paid by the BBC. 18 [OSCURATO:PERSONA], [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] distorted the facts and evidence by considering the royalties paid by third parties in their entirety in the judgment under appeal, despite the formal withdrawal by [OSCURATO:PERSONA]. That distortion is, it is claimed, evident having regard to the documents which were or should have been included in the [OSCURATO:PERSONA] case file. 19 EUIPO and [OSCURATO:PERSONA] consider that this ground of appeal must be rejected. Findings of the [OSCURATO:PERSONA] 20 The distortion alleged by [OSCURATO:PERSONA] is based on the allegation that the [OSCURATO:PERSONA] based its decision, in the judgment under appeal, on the evidence of use of the mark at issue adduced by [OSCURATO:PERSONA], without taking into account the fact that some of that evidence, namely the royalties paid by the BBC, had been withdrawn by [OSCURATO:PERSONA]. 21 However, the action brought by [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] was directed solely against the [OSCURATO:PERSONA] of Appeal’s finding that [OSCURATO:PERSONA] had consented to the use of the contested mark by a third party. As is apparent from paragraphs 37 to 45 of the contested decision, which fall under the heading ‘Consent of the [contested mark] proprietor’, that question concerned whether that mark had been used by [OSCURATO:PERSONA] with the consent of [OSCURATO:PERSONA], which [OSCURATO:PERSONA] contested, arguing that, under the agreement of 8 June 1979, he had assigned the rights to that mark to [OSCURATO:PERSONA]. 22 In that regard, it is clear from paragraphs 37, 54, 55, 58 and 61 of the judgment under appeal, some of which are cited by [OSCURATO:PERSONA], that the evidence referred to in those paragraphs is that from which the [OSCURATO:PERSONA] of Appeal, in paragraphs 42 to 45 of the contested decision, referred to in those paragraphs of the judgment under appeal, inferred the consent of [OSCURATO:PERSONA] to the use of the contested mark by [OSCURATO:PERSONA]. 23 Having regard to the subject matter of the dispute before the [OSCURATO:PERSONA], as set out in paragraph 21 of the present order, the references made, in the judgment under appeal, to the royalties paid by third parties therefore did not relate to the royalties paid by the BBC. 24 It should be added that, in his response lodged before the [OSCURATO:PERSONA], [OSCURATO:PERSONA] had invoked the royalties paid by the BBC only in the eventuality that all his arguments made in relation to the agreement of 8 June 1979, in response to the single plea of [OSCURATO:PERSONA], were rejected. 25 It follows that the allegation of distortion of the evidence, in so far as the conclusions reached by the [OSCURATO:PERSONA] in the contested judgment are partly dependent on evidence relating to royalties paid by the BBC, notwithstanding the fact that [OSCURATO:PERSONA] had withdrawn that evidence, would not, in any event, have any effect on the correctness of those conclusions. 26 [OSCURATO:PERSONA], the first ground of appeal must be rejected as manifestly ineffective. The second ground of appeal, alleging infringement of [OSCURATO:PERSONA] 113 of the Rules of Procedure of the [OSCURATO:PERSONA] of the parties 27 By its second ground of appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 113(2) of its Rules of Procedure by rejecting the application to reopen the oral procedure which [OSCURATO:PERSONA] had lodged because of the withdrawal, by [OSCURATO:PERSONA], of the evidence relating to the royalties paid by the BBC. 28 According to [OSCURATO:PERSONA], that withdrawal was highly significant for its action before the [OSCURATO:PERSONA] and the latter should have ordered the reopening of the oral procedure on the grounds, under [OSCURATO:PERSONA] 113(2)(a) and (b) of the Rules of Procedure, first, that the [OSCURATO:PERSONA] lacked sufficient information as to why [OSCURATO:PERSONA] had produced and relied on false evidence concerning the use of the contested mark and, secondly, that there was a risk that the case would be decided on the basis of an argument which had not been debated between the parties, namely the effect of the withdrawal of that evidence and the consequences of that withdrawal for the remainder of the case. 29 EUIPO and [OSCURATO:PERSONA] contend that this ground of appeal must be rejected. Findings of the [OSCURATO:PERSONA] 30 [OSCURATO:PERSONA] 113(2)(a) and (b) of the Rules of Procedure of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] may order the reopening of the oral part of the procedure if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties. 31 It follows from the very wording of that provision that the [OSCURATO:PERSONA] has the power, but not the obligation, to order the reopening of the oral part where the conditions for the exercise of the power set out in that provision are fulfilled. It follows that the rejection by the [OSCURATO:PERSONA] of an application to reopen the oral procedure is not of such a nature as to constitute, in itself, an infringement of [OSCURATO:PERSONA] 113(2). 32 In any event, as is apparent from the [OSCURATO:PERSONA] assessment of the first ground of appeal, neither [OSCURATO:PERSONA] action before the [OSCURATO:PERSONA] nor the judgment under appeal were based, even in part, on the evidence relating to the royalties paid by the BBC, so that the conditions for the exercise of the [OSCURATO:PERSONA] power as regards the reopening of the oral phase, as set out in [OSCURATO:PERSONA] 113(2)(a) and (b) of the Rules of Procedure of the [OSCURATO:PERSONA], were not met on account of the withdrawal of that evidence. 33 It follows that the second ground of the appeal must be rejected as manifestly unfounded. The third ground of appeal, alleging wrongful classification of a plea raised at the hearing as being new [OSCURATO:PERSONA] of the parties 34 By its third ground of appeal, [OSCURATO:PERSONA] criticises the [OSCURATO:PERSONA] for having, in paragraphs 12 and 13 of the judgment under appeal, rejected as inadmissible its argument, raised at the hearing, that the amount of the royalties paid to [OSCURATO:PERSONA] was too low to establish genuine use of the contested mark, on the ground that, in its application, it had not called into question the [OSCURATO:PERSONA] of Appeal’s assessment regarding genuine use of that mark. 35 In that regard, [OSCURATO:PERSONA] argues that it had a right to respond to the evidence concerning the royalties paid by the BBC, on which [OSCURATO:PERSONA] relied in his reply and at the hearing. 36 EUIPO and [OSCURATO:PERSONA] contend that that ground of appeal should be rejected. Findings of the [OSCURATO:PERSONA] 37 It should be noted that [OSCURATO:PERSONA] does not dispute the finding made by the [OSCURATO:PERSONA] in paragraphs 12 and 13 of the judgment under appeal, that it had not criticised, in its application, the assessment made by the [OSCURATO:PERSONA] of Appeal regarding the genuine use of the contested mark and that the allegation, raised for the first time at the hearing, that the amount of royalties produced by [OSCURATO:PERSONA] was too low to establish such a genuine use does not constitute an amplification of the single plea advanced in support of the action of [OSCURATO:PERSONA] nor was it closely connected with that plea. 38 Furthermore, it is apparent from the contested decision and from the judgment under appeal that those royalties had already been invoked before the [OSCURATO:PERSONA] of Appeal, which [OSCURATO:PERSONA] does not contest, so that it would have been possible to dispute, in the context of the proceedings before that [OSCURATO:PERSONA], that genuine use of the contested mark could be demonstrated by the allegedly low amount of the royalties. 39 It follows that the [OSCURATO:PERSONA] did not err in law by rejecting as inadmissible the allegation relating to the amount of royalties paid to [OSCURATO:PERSONA], on the ground that that allegation was raised for the first time at the hearing. 40 Accordingly, the third ground of appeal must be rejected as manifestly unfounded. Fourth ground of appeal, alleging failure to appreciate the legal effect of assignment [OSCURATO:PERSONA] of the parties 41 [OSCURATO:PERSONA] criticises the [OSCURATO:PERSONA] for failing to appreciate the legal consequences of an assignment in the light of the evidence provided by the proprietor of the contested trade mark, those consequences being that the proprietor unequivocally renounced his rights to that trade mark. 42 In that regard, it cites certain clauses of the agreement of 8 June 1979 in order to show that [OSCURATO:PERSONA] had not granted a licence under which [OSCURATO:PERSONA] had used the contested mark with his consent but had assigned his rights to that mark. 43 EUIPO and [OSCURATO:PERSONA] contend that this ground of appeal must be rejected. Findings of the [OSCURATO:PERSONA] 44 By this ground of appeal, [OSCURATO:PERSONA] confines itself, in essence, to repeating certain arguments put forward before the [OSCURATO:PERSONA] in the context of the fourth complaint of the single plea in its action, by which it claimed that the [OSCURATO:PERSONA] of Appeal had failed to take account of provisions of the agreement of 8 June 1979, from which it is apparent that [OSCURATO:PERSONA] had assigned the rights to use the name of the group ‘[OSCURATO:PERSONA]’, including as a trade mark, so that he was no longer the proprietor of those rights. 45 In so doing, [OSCURATO:PERSONA] does not challenge the conclusion of the [OSCURATO:PERSONA] in paragraph 50 of the judgment under appeal, that the question whether or not [OSCURATO:PERSONA] had assigned the rights to the name of the group ‘[OSCURATO:PERSONA]’ under the agreement of 8 June 1979 is not relevant to establish that the contested mark, which was registered on 27 July 2005, and therefore subsequent to the date of conclusion of that agreement, had not been put to genuine use by [OSCURATO:PERSONA] or with his consent. In the absence of such a challenge, the argument that Mr. [OSCURATO:PERSONA] had assigned his rights to the contested mark when that agreement was concluded is manifestly ineffective. 46 [OSCURATO:PERSONA], the fourth ground of appeal must be rejected as manifestly ineffective. 47 In the light of the foregoing, the appeal must be dismissed in its entirety as being manifestly unfounded. Costs 48 [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to the costs. [OSCURATO:PERSONA] 138(1) of those Rules, applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 49 Since EUIPO and [OSCURATO:PERSONA] have applied for costs to be awarded against [OSCURATO:PERSONA] and the latter has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EUIPO and [OSCURATO:PERSONA]. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed as being manifestly unfounded. 2. [OSCURATO:PERSONA] LLP shall pay the costs. Luxembourg, 26 June 2018. A. [OSCURATO:PERSONA] C. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.