Corte di giustizia UE n. 2017/2026

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 30 September 2026 ( * ) ( EU trade mark – Revocation proceedings – EU figurative mark E-[OSCURATO:PERSONA] – Genuine use of the mark – [OSCURATO:PERSONA] 58(1)(a) of [OSCURATO:PERSONA] (EU) 2017/1001 – Nature of use of the mark ) [OSCURATO:PERSONA] T‑256/25, [OSCURATO:PERSONA] GmbH & Co. OHG, established in Munich ([OSCURATO:PERSONA]), represented by P. Neuwald, lawyer, applicant, v [OSCURATO:PERSONA] (EUIPO), represented by M. Eberl, acting as Agent, defendant, the other party to the proceedings before the [OSCURATO:PERSONA] of Appeal of EUIPO, intervener before the [OSCURATO:PERSONA], being ePlus Inc., established in Herndon, Virginia ([OSCURATO:PERSONA]), represented by V. von Bomhard and J. Fuhrmann, lawyers, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of I. [OSCURATO:PERSONA], [OSCURATO:PERSONA], B. [OSCURATO:PERSONA] and L. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: J. Čuboň, Administrator, having regard to the written part of the procedure, further to the hearing on 25 February 2026, gives the following [OSCURATO:PERSONA] 1 By its action under [OSCURATO:PERSONA] 263 TFEU, the applicant, [OSCURATO:PERSONA] GmbH & Co. OHG, seeks the partial annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 24 February 2025 ([OSCURATO:PERSONA] R 395/2024-1) (‘the contested decision’). Background to the dispute 2 On 10 November 2022, the intervener filed an application with EUIPO for revocation of the EU trade mark registered on 20 October 2008, following an application submitted on 6 September 2007 by the applicant, [OSCURATO:PERSONA] GmbH & Co. OHG, for the following figurative sign: 3 The goods and services covered by the contested mark in respect of which revocation was sought were in Classes 9, 35, 37 to 39, 42 and 43 of the [OSCURATO:PERSONA] 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: –        Class 9: ‘Apparatus for recording, transmission or reproduction of sound or images, in particular subscriber terminals and accessories therefor, namely mains apparatus, mains charging apparatus, accumulators, connecting cables, holding devices and auto-holding devices specially adapted to subscriber terminals, carriers, aerials; data processing apparatus, computers; SIM cards ([OSCURATO:PERSONA])’; –        Class 35: ‘Telephone services, namely secretarial services’; –        Class 37: ‘Civil engineering; repair work for buildings, installation and assembly of radio and communications devices, repair and maintenance of electrical engineering products’; –        Class 38: ‘Telecommunications, in particular mobile radiotelephone services, operation of a telecommunications network, operation of a mobile radiotelephone network, message sending, providing an e-commerce platform in online services, transmission of information of all kinds in online services, providing Internet portals, for others; telecommunications, in particular value-added services, namely establishing a call answering system as a function of a central computer, or of a mailbox, transmission of short messages, call relaying, conferencing; rental of telecommunications apparatus’; –        Class 39: ‘Services provided by telephone, namely travel agency services, namely travel booking, arrangement of travel and tours, reservation services (travel)’; –        Class 42: ‘Weather reports; civil engineering services; architectural and construction drafting, computer programming, in particular for telecommunications, rental of data processing installations’; –        Class 43: ‘Telephone services, namely hotel reservations’. 4 The ground relied on in support of the application for revocation was that set out in [OSCURATO:PERSONA] 58(1)(a) of [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the Council of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p. 1), namely the lack of genuine use of the contested mark. 5 On 1 February 2024, the [OSCURATO:PERSONA] revoked the contested mark in respect of all the goods and services referred to in paragraph 3 above. 6 On 16 February 2024, the applicant filed a notice of appeal with the [OSCURATO:PERSONA] of Appeal against the [OSCURATO:PERSONA] decision. 7 By the contested decision, the [OSCURATO:PERSONA] of Appeal dismissed the appeal. It held, in essence, that the evidence submitted did not demonstrate, in accordance with [OSCURATO:PERSONA] 10(3) of [OSCURATO:PERSONA] (EU) 2018/625 of 5 March 2018 supplementing [OSCURATO:PERSONA] 2017/1001, and repealing [OSCURATO:PERSONA] (EU) 2017/1430 (OJ 2018 L 104, p. 1), that the contested mark has been used as registered or in a form which does not alter its distinctive character and use of the contested mark in respect of the goods and services for which it had been registered. Forms of order sought 8 Following a partial withdrawal at the hearing, which was recorded in the minutes of the hearing, the applicant claims that the [OSCURATO:PERSONA] should: –        annul the contested decision, in so far as it dismissed the appeal in respect of ‘SIM cards ([OSCURATO:PERSONA])’ in Class 9 and telecommunications services in Class 38; –        order EUIPO to pay the costs, including those incurred for the purposes of the proceedings before the [OSCURATO:PERSONA] of Appeal of EUIPO; –        order the intervener to bear its own costs. 9 EUIPO contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs in the event that a hearing is convened. 10 The intervener contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs. Law 11 In support of the action, the applicant raises three pleas in law, alleging, first, infringement of [OSCURATO:PERSONA] 58(1)(a) and [OSCURATO:PERSONA] 58(2) of [OSCURATO:PERSONA] 2017/1001, second, infringement of the right to good administration and, third, infringement of essential procedural requirements. 12 The third plea in law should be dealt with before examining the first plea in law and then the second plea in law. The third plea in law , alleging infringement of essential procedural requirements 13 The applicant submits that the contested decision is vitiated by an inadequate statement of reasons, which constitutes an infringement of essential procedural requirements for the purposes of [OSCURATO:PERSONA] 263 TFEU and [OSCURATO:PERSONA] 72 of [OSCURATO:PERSONA] 2017/1001. In particular, it challenges the ground on which the [OSCURATO:PERSONA] of Appeal relied in asserting, without further justification, that the applicant had not submitted any evidence of use in respect of the services in Classes 35, 37, 39, 42 and 43. 14 EUIPO and the intervener dispute the applicant’s arguments. 15 It should be noted that the present plea in law relates only to goods and services in respect of which the applicant has withdrawn its head of claim for annulment of the contested decision, as was stated in paragraph 8 above. 16 It follows that the present plea in law has become devoid of purpose to that extent. 17 Furthermore, in the present plea in law, the applicant alleges that the [OSCURATO:PERSONA] of Appeal did not provide sufficiently detailed reasons to justify its assessment departing from that made in previous cases. However, that complaint overlaps, in essence, with the complaint raised in support of the second plea in law and will therefore be examined with that plea in law. The first plea in law , alleging infringement of [OSCURATO:PERSONA] 58 (1)(a) and [OSCURATO:PERSONA] 58 (2) of [OSCURATO:PERSONA] 2017/1001 18 The applicant challenges, in essence, first, the [OSCURATO:PERSONA] of Appeal’s assessment that the variations of the contested mark contained in the evidence alter its distinctive character within the meaning of [OSCURATO:PERSONA] 18(1)(a) of [OSCURATO:PERSONA] 2017/1001 and, second, the [OSCURATO:PERSONA] of Appeal’s assessment that use of that mark was not demonstrated in respect of ‘SIM cards ([OSCURATO:PERSONA])’ in Class 9 or in respect of telecommunications services in Class 38. 19 [OSCURATO:PERSONA] 58(1)(a) of [OSCURATO:PERSONA] 2017/1001, the rights of the proprietor of an EU trade mark are to be declared to be revoked on application to EUIPO if, within a continuous period of five years, the EU trade mark has not been put to genuine use in the [OSCURATO:PERSONA] in connection with the goods or services in respect of which it is registered and there is no proper reason for non-use. 20 [OSCURATO:PERSONA] 10(3) and (4) of [OSCURATO:PERSONA] 2018/625, which is applicable to revocation proceedings pursuant to [OSCURATO:PERSONA] 19(1) of that delegated regulation, evidence of use of a trade mark must relate to the place, time, extent and nature of use of the trade mark and is, in principle, to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in [OSCURATO:PERSONA] 97(1)(f) of [OSCURATO:PERSONA] 2017/1001. 21 When assessing whether use of a trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use 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 products or services protected by the mark, the nature of those products or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 8 July 2004, Sunrider v OHIM – [OSCURATO:PERSONA] (VITAFRUIT) , T‑203/02, EU:T:2004:225, paragraph 40 and the case-law cited). 22 Moreover, 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 (see judgment of 13 February 2015, Husky CZ v OHIM – Husky of Tostock (HUSKY) , T‑287/13, EU:T:2015:99, paragraph 66 and the case-law cited). 23 In the present case, a preliminary point to note is that, as the [OSCURATO:PERSONA] of Appeal held, the relevant period during which the applicant had to prove genuine use of the contested mark, the application for revocation having been lodged on 10 November 2022, is the period between 10 November 2017 and 9 November 2022, which is not disputed by the applicant. 24 Furthermore, although evidence of use of a mark must, as is evident from [OSCURATO:PERSONA] 10(3) and (4) of [OSCURATO:PERSONA] 2018/625, relate to the place, time, extent and nature of its use, the [OSCURATO:PERSONA] of Appeal confined itself, in the contested decision, to assessing the nature of use of the contested mark. 25 Indeed, the [OSCURATO:PERSONA] of Appeal noted, in paragraphs 39 and 40 of the contested decision, that the nature of use of the contested mark covered three aspects: first, use of the mark as a sign in the course of trade, second, use of the mark as registered or in a form which did not alter its distinctive character and, third, use of the mark in question for the goods and services for which it had been registered. 26 As regards the first aspect, the [OSCURATO:PERSONA] of Appeal concluded, in paragraphs 41 and 42 of the contested decision, that the evidence submitted by the applicant showed that the contested mark had been used as a trade mark in the course of trade, that is to say, as a trade mark capable of establishing a connection with the goods and services in question. That assessment is not disputed. 27 As regards the second aspect, on the other hand the [OSCURATO:PERSONA] of Appeal held, in paragraphs 43 to 46 of the contested decision, that the variations of the contested mark included in the evidence altered its distinctive character and that, accordingly, that evidence did not demonstrate use of the mark as registered or in a form which does not alter its character, which is disputed by the applicant. The variations to which the [OSCURATO:PERSONA] of Appeal referred are the following signs: –        E-[OSCURATO:PERSONA] and e-[OSCURATO:PERSONA], – , – , –        and . 28 As regards, lastly, the third aspect, namely use of the contested mark for the goods and services for which it was registered, the [OSCURATO:PERSONA] of Appeal held, in paragraphs 47 to 71 of the contested decision, that such use had not been demonstrated. The applicant also challenges that assessment in respect of ‘SIM cards ([OSCURATO:PERSONA])’ in Class 9 and telecommunication services in Class 38. Use of the contested mark in a form which does not alter its distinctive character 29 [OSCURATO:PERSONA] of Appeal noted, in paragraph 44 of the contested decision, that the evidence referred to the signs E-[OSCURATO:PERSONA] and e-[OSCURATO:PERSONA] and to figurative signs containing the word element ‘e.plus’ together with the symbol ‘+’, which form the variations referred to in paragraph 27 above. It held, in paragraph 45 of that decision, that the omission from those variations of the vertical, coloured bars at the bottom of the contested mark was capable of altering the distinctive character of that mark on the ground that, although those bars had a low degree of distinctive character, they were visually co-dominant due to their size and position. 30 The applicant challenges the [OSCURATO:PERSONA] of Appeal’s assessment that the variations referred to in paragraph 27 above alter the distinctive character of the contested mark. It submits, in essence, that the word element ‘e-plus’ constitutes the sole distinctive element in that mark and that that element can still be identified in all those variations. It adds that neither the addition of weak or non-distinctive elements, such as the symbol ‘+’, nor the absence of the word element ‘gruppe’, a term which is purely descriptive, is capable to modifying that character. 31 EUIPO and the intervener dispute the applicant’s arguments. They contend, in essence, that the omission from the variations referred to in paragraph 27 above of the vertical, coloured bars at the bottom of the contested mark, which are visually co-dominant due to their size and position, and the absence of the word element ‘gruppe’ alter the distinctive character of the mark. 32 It must be borne in mind that, under [OSCURATO:PERSONA] 18(1)(a) of [OSCURATO:PERSONA] 2017/1001, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered. 33 The purpose of [OSCURATO:PERSONA] 18(1)(a) of [OSCURATO:PERSONA] 2017/1001, which avoids imposing strict conformity between the used form of the trade mark and the form in which the mark was registered, is 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 (see judgment of 23 February 2006, [OSCURATO:PERSONA] v OHIM – [OSCURATO:PERSONA] (BAINBRIDGE) , T‑194/03, EU:T:2006:65, paragraph 50 and the case-law cited). 34 A finding that the distinctive character of the registered trade mark has been altered requires an assessment of the distinctive and dominant character of the elements which have been added or omitted, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the various elements within the arrangement of the mark (see judgment of 10 September 2025, [OSCURATO:PERSONA] v EUIPO – R. López de [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑516/24, not published, EU:T:2025:856, paragraph 67 and the case-law cited). 35 For the purposes of that finding, account must be taken of the greater or lesser degree of distinctive character of the registered mark. The weaker the distinctive character, the easier it will be to alter it by adding a component that is itself distinctive, and the more the mark will lose its ability to be perceived as an indication of the origin of the good. The reverse is also true (see judgment of 13 September 2016, hyphen v EUIPO – Skylotec (Representation of a polygon) , T‑146/15, EU:T:2016:469, paragraph 29 and the case-law cited). 36 Furthermore, when a mark comprises word and figurative elements, the former are, in principle, more distinctive than the latter, as the average consumer will more easily refer to the goods or services in question by quoting the name of the mark than by describing the figurative elements of the mark (see judgment of 5 March 2019, [OSCURATO:PERSONA] v EUIPO – [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) , T‑263/18, not published, EU:T:2019:134, paragraph 66 and the case-law cited). 37 In addition, where a mark is constituted or composed of a number of elements and one or more of them is not distinctive, the alteration of those elements or their omission is not such as to alter the distinctive character of that trade mark as a whole (see judgment of 13 September 2016, Representation of a polygon , T‑146/15, EU:T:2016:469, paragraph 30 and the case-law cited). 38 It is in the light of those considerations that it must be examined whether the [OSCURATO:PERSONA] of Appeal was entitled to hold, in paragraphs 45 and 46 of the contested decision, that the evidence submitted by the applicant did not demonstrate that the contested mark had been used as registered or in a form which did not alter its distinctive character, on the ground that the omission of the vertical, coloured bars was capable of altering the distinctive character of the sign, those coloured bars being visually co-dominant due to their size and position. 39 In that regard, it should be noted that the contested mark is a figurative mark composed of the word elements ‘e-plus’ and ‘gruppe’ and of a figurative element consisting in short, vertical, coloured bars at the bottom of the sign. 40 In the present case, the figurative element of the contested mark appears below two word elements without being any larger in size than them. The word elements are therefore the most striking in the structure of that mark. 41 In addition, since the word element ‘e-plus’ is the first word element of the contested mark, it is likely to attract the attention of the consumer more, it being noted that in the contested decision the [OSCURATO:PERSONA] of Appeal did not examine whether the presence or absence of the word element ‘gruppe’ was capable of altering the distinctive character of the contested mark. 42 Furthermore, the vertical bars which form the figurative element of the contested mark have a mainly decorative function and do not play a crucial role in the overall impression of that mark. 43 In that regard, given the weak distinctive character of the vertical, coloured bars forming the figurative element of the contested mark, their omission from the variations referred to in paragraph 27 above cannot be considered to be capable of altering the distinctive character of that mark. 44 With regard to the argument put forward by EUIPO and by the intervener that the absence of the word element ‘gruppe’ in the variations referred to in paragraph 27 above is also such as to alter the distinctive character of the contested mark, it should be noted that the [OSCURATO:PERSONA] of Appeal did not base the contested decision on that ground, as was acknowledged by those parties at the hearing. However, additional reasoning or a substitution of grounds cannot be put before the [OSCURATO:PERSONA] in order to perfect potentially inadequate reasoning in the contested decision (see, to that effect, judgment of 5 October 2022, Puma v EUIPO – CMS (CMS Italy) , T‑711/20, not published, EU:T:2022:604, paragraph 134 and the case-law cited). That argument must therefore be rejected. 45 It follows from the foregoing that the [OSCURATO:PERSONA] of Appeal made an error of assessment in holding, in paragraph 45 of the contested decision, that the variations referred to in paragraph 27 above altered the distinctive character of the contested mark. ‘SIM cards ([OSCURATO:PERSONA])’ in Class 9 46 [OSCURATO:PERSONA] of Appeal held, in paragraph 54 of the contested decision, that the evidence submitted by the applicant referred to top-up vouchers and prepaid cards and not to SIM ([OSCURATO:PERSONA]) cards. In its view, that evidence could not therefore support the affidavits submitted by the applicant or the undated photographs of SIM cards bearing the sign e-plus. It thus concluded that use of the contested mark had not been proved for SIM cards in Class 9. 47 The applicant claims that the [OSCURATO:PERSONA] of Appeal wrongly held that use of the contested mark had not been proven for SIM cards ([OSCURATO:PERSONA]) in Class 9. In its view, if the [OSCURATO:PERSONA] of Appeal considered that some evidence related to top-up vouchers and prepaid cards, it should have concluded accordingly that such use was proven for ‘those SIM cards’, given that a prepaid card was a type of SIM card with which the user preloads credit to use mobile telephone services. Both SIM cards and prepaid cards are physical chips inserted into mobile telephones to use mobile services. 48 EUIPO and the intervener dispute the applicant’s arguments. 49 It should be observed that, as was noted by the [OSCURATO:PERSONA] of Appeal in the contested decision and as is confirmed by the applicant itself in the application, a ‘SIM card ([OSCURATO:PERSONA])’ in Class 9 refers, in this instance, to a physical chip, inserted into a mobile telephone terminal, which identifies and authenticates subscribers on a mobile telephone network and thus enables subscribers to access the telecommunications services to which they subscribe. Furthermore, such SIM cards are generally made of plastic and include a magnetic strip or an integrated circuit which enables information to be recorded and read (see, to that effect, judgment of 9 March 2022, [OSCURATO:PERSONA] v EUIPO (LOOP) , T‑132/21, not published, EU:T:2022:124, paragraph 60). 50 In the present case, it is not disputed that the evidence submitted by the applicant demonstrates the offer for sale of various packages allowing access to mobile telephone services containing identifiers and information relating to those services, such as starter packages, top-up vouchers or prepaid cards. In addition, the applicant submitted to the bodies of EUIPO invoices sent to the applicant’s distribution partners for the purchase of top-up vouchers and invoices sent to banks for prepaid credit top-ups carried out at ATMs 51 However, as was recognised by the applicant at the hearing, none of the evidence submitted contains SIM cards as physical chips, as defined in paragraph 49 above. 52 Thus, the fact that packages like those referred to in the evidence submitted by the applicant may contain such SIM cards as physical chips allowing consumers to access mobile telephone services cannot, in itself, demonstrate use of the contested mark for such goods. In that context, and as regards the nature of use of that mark in particular, the evidence thus adduced by the applicant does not therefore demonstrate that that mark has been used, in accordance with its essential function, in order to identify SIM cards as physical chips, as defined in paragraph 49 above. When confronted with the goods shown in such evidence, the consumer will associate the mark in question not with the commercial origin of the SIM cards, which, as physical chips, constitute the technical medium for identifying and authenticating the subscriber on a mobile telephone network, but solely with the commercial origin of the telecommunications services thus provided. 53 Consequently, contrary to the claim made by the applicant, use of the contested mark for ‘SIM cards ([OSCURATO:PERSONA])’ as physical chips, as defined in paragraph 49 above, cannot be established on the basis of the evidence demonstrating the offer for sale, inter alia, of various packages allowing access to mobile telephone services containing identifiers and information relating to those services, such as starter packages, top-up vouchers or prepaid cards. 54 It follows that the [OSCURATO:PERSONA] of Appeal did not err in holding, in paragraph 54 of the contested decision, that use of the contested mark had not been demonstrated for ‘SIM cards ([OSCURATO:PERSONA])’ in Class 9. Telecommunication services in Class 38 55 As regards telecommunication services in Class 38, the [OSCURATO:PERSONA] of Appeal noted, first of all, in paragraphs 56 and 57 of the contested decision, that certain evidence submitted by the intervener showed that use of the contested mark had ceased for mobile telephone networks, namely an announcement of 3 February 2016, published on the applicant’s website, that ‘E-[OSCURATO:PERSONA]’ tariffs would be transferred to the O2 brand and the fact that mobile telephone services provided by the applicant, through its subsidiary E-[OSCURATO:PERSONA] GmbH, as the applicant clarified at the hearing, were offered under the [OSCURATO:PERSONA] trade mark. 56 Next, in paragraphs 58 to 63 of the contested decision, the [OSCURATO:PERSONA] of Appeal examined the evidence submitted by the applicant and held that that evidence did not indicate use of the contested mark for telecommunications services in Class 38 during the relevant period. 57 Lastly, in paragraphs 64 to 71 of the contested decision, the [OSCURATO:PERSONA] of Appeal rejected the relevance of the previous decisions of EUIPO since, in some cases, the evidence was different from that submitted in the present case and predated the relevant period almost entirely and, in others, those decisions referred to different evidence, facts, legal basis and grounds. 58 The applicant submits, first, that, contrary to the finding made by the [OSCURATO:PERSONA] of Appeal, the contested mark continued to be used for telecommunications services in Class 38 during the relevant period, including through service offerings marketed under the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] brands, on which the contested mark also appeared. 59 Second, the applicant claims that the evidence submitted, in particular affidavits, invoices, top-up vouchers and website screenshots, demonstrates, when taken as a whole, that the contested mark was used to designate mobile telecommunications services. It asserts, in particular, that the [OSCURATO:PERSONA] of Appeal wrongly characterised top-up vouchers and prepaid cards as mere ‘means of payment’, whereas they constituted the medium by which the consumer accessed telephone services, data transmission services and services relating to transmission of short messages. 60 Third, the applicant submits that the evidence on which it relies in order to demonstrate use of the contested mark is, to a considerable extent, identical or substantially identical to that produced in the proceedings giving rise to the decision of the [OSCURATO:PERSONA] of Appeal of 30 June 2023 ([OSCURATO:PERSONA] R 1199/2022‑1 and R 1711/2022‑1), confirmed by the judgment of 16 October 2024, ePlus v EUIPO – [OSCURATO:PERSONA] (e.plus) (T‑604/23, not published, EU:T:2024:695), in which the same [OSCURATO:PERSONA] of Appeal had found that there was genuine use of the figurative mark e.plus for services in Class 38. The applicant infers from that that, in the contested decision, the [OSCURATO:PERSONA] of Appeal arrived at an assessment which was opposite to that which it had made with regard to substantially identical or similar evidence, without a proper statement of reasons being given for that departure. 61 EUIPO and the intervener dispute the applicant’s arguments. They contend, in essence, that the evidence at issue does not demonstrate the existence during the relevant period of real telecommunications services marketed under the contested mark and that top-up vouchers and prepaid cards constitute means of payment and not the provision of such services. The intervener adds that, after 2016, there was no longer an ‘E-[OSCURATO:PERSONA]’ mobile telephone network, since the network itself and the related telecommunications services were marketed under the O2 brand. 62 It should be noted at the outset that the [OSCURATO:PERSONA] of Appeal carried out an assessment of genuine use of the contested mark taking into account comprehensively all the services in Class 38 covered by that mark, namely ‘telecommunications, in particular mobile radiotelephone services, operation of a telecommunications network, operation of a mobile radiotelephone network, message sending, providing an e-commerce platform in online services, transmission of information of all kinds in online services, providing Internet portals, for others; telecommunications, in particular value-added services, namely establishing a call answering system as a function of a central computer, or of a mailbox, transmission of short messages, call relaying, conferencing; rental of telecommunications apparatus’. The applicant does not challenge that approach. 63 That being said, it is necessary, in the light of the case-law recalled in paragraphs 21 and 22 above, to examine whether the [OSCURATO:PERSONA] of Appeal was entitled to hold that the evidence submitted by the applicant did not demonstrate that the contested mark was used for the services in question. 64 It should be stated in that regard that the applicant submitted several items of evidence, including the following evidence relating to the relevant period, which consists in advertising for telecommunications services under the contested mark and invoices proving the sale of top-up vouchers and prepaid cards for subscriptions to such services: –        a poster concerning a service offering marketed under the mark [OSCURATO:PERSONA] and a corresponding article published on the ‘aldi-nord.de’ website from December 2019, announcing that customers benefit from a larger volume of internet data for the same price and detailing the tariff options associated with telecommunications service offerings, including internet data, call minutes and SMS messages, the sign e.plus+ being visible at the bottom of the poster (Annex A.9 to the application); –        a poster concerning a service offering marketed under the mark [OSCURATO:PERSONA] dating from 2019, announcing that customers benefit from a larger volume of internet data for the same price, which can be topped up using ‘e plus’ credit (Annex A.6 to the application); –        invoices sent by the applicant to prepaid credit distribution partners and banks, recording the sale of top-up vouchers and prepaid cards bearing the sign e plus or the sign e.plus+ during the relevant period, including for the year 2022 (Annex A.9 to the application). 65 It must be held that the evidence referred to in paragraph 64 above demonstrates that the contested mark was indeed used in connection with the sale of top-up vouchers and prepaid cards, but solely in order to designate telecommunications services. It is therefore immaterial that such prepaid cards are characterised as ‘means of payment’, top-up vouchers or otherwise, since the sole function of the use of that mark in that context was to indicate the origin of the telecommunications services being sold. 66 [OSCURATO:PERSONA] has ruled that, as regards a mark under which telecommunications services are also marketed, consumers do not ordinarily purchase SIM cards, starter packages and prepaid mobile phone cards as such, but make those purchases only in order to benefit from the associated telephone services to which they give access (see, to that effect, judgment of 16 October 2024, e.plus , T‑604/23, not published, EU:T:2024:695, paragraph 41). 67 Furthermore, the applicant also submitted affidavits from senior management employees of the applicant or of [OSCURATO:PERSONA] GmbH, which, as the applicant explained at the hearing, is its subsidiary. They comprise the following statements: –        an affidavit from a senior management employee of the applicant, made in 2021, also including advertising posters relating to the marketing of the prepaid starter package ‘aldi talk prepaid starter-set’ from 2017, bearing the sign e.plus+ and describing a telecommunications service offering including internet data, call minutes and SMS messages (Annex A.6 to the application); –        an affidavit from another senior management employee of the applicant, made in 2024 and submitted in several successive and expanded versions, describing and illustrating the sale of prepaid cards bearing the sign e.plus+ on shop shelves and at ATMs during the relevant period (Annex A.9 to the application); –        a statement from a senior management employee of [OSCURATO:PERSONA], made in 2024, presenting prepaid cards used from mid 2017 bearing the contested mark, as well as advertising brochures highlighting a telecommunications service offering including an internet package and call minutes, which could be topped up with prepaid cards bearing the sign e.plus+ (Annex A.9 to the application). 68 Accordingly, when taken together with the evidence referred to in paragraph 64 above, whose reliability as such is not called into question by the parties, the affidavits at issue demonstrate use of the contested mark in connection with the actual provision of telecommunications services in Class 38 during the relevant period. 69 Furthermore, the applicant submits that the [OSCURATO:PERSONA] has already had occasion to find that the figurative mark e.plus, which is similar to the contested mark, had been put to genuine use between 2016 and 2020 for ‘mobile telephone services, operating mobile telephone networks and message sending’ (judgment of 16 October 2024, e.plus , T‑604/23, not published, EU:T:2024:695, paragraph 45). 70 It should be observed in that regard that the [OSCURATO:PERSONA] of Appeal explained in paragraphs 64 and 65 of the contested decision that, with regard to the evidence relating to telecommunications services in Class 38, the findings in the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 30 June 2023 ([OSCURATO:PERSONA] R 1199/2022-1 and R 1711/2022-1), confirmed by the judgment of 16 October 2024, e.plus (T‑604/23, not published, EU:T:2024:695), could not be applied in the present case since those findings were based on data relating to 2016, as was apparent from a report by the Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen ([OSCURATO:PERSONA] for Electricity, Gas, Telecommunications, Post and Railway; ‘the Bundesnetzagentur report’). [OSCURATO:PERSONA] of Appeal inferred from that that ‘the existence of a mobile telephone network in [OSCURATO:PERSONA] under [the contested EU trade mark]’ could not be confirmed for 2017, the first year of the relevant period. 71 It is clear from paragraph 44 of the judgment of 16 October 2024, e.plus (T‑604/23, not published, EU:T:2024:695), in particular, as the applicant rightly claims, that the reference to the Bundesnetzagentur report was made only to support the conclusion that the marketing of SIM cards and prepaid cards during the relevant period in the case which gave rise to that judgment, namely between 12 April 2016 and 11 April 2021, demonstrated that the figurative mark e.plus was used to designate mobile telephone services, operating mobile telephone networks and message sending. 72 Furthermore, several items of evidence on which the [OSCURATO:PERSONA] of Appeal had thus relied in the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 30 June 2023 ([OSCURATO:PERSONA] R 1199/2022-1 and R 1711/2022-1) in finding that the figurative mark e.plus was used for those telecommunications services in Class 38 are substantially identical to the evidence included in the file in the present case. It is clear from paragraphs 86 and 87 of that decision that, in examining the nature of use of the mark at issue in that case, the [OSCURATO:PERSONA] of Appeal had considered that the overall assessment of the evidence submitted demonstrated that that mark was used for services in that class. That is the case, in particular, for the affidavit made by a senior management employee of the applicant concerning the marketing of the prepaid starter package ‘aldi talk prepaid starter-set’ referred to in the first indent of paragraph 67 above; for the advertising poster dating from 2019 concerning the service offering marketed under the mark [OSCURATO:PERSONA] referred to in the second indent of paragraph 64 above; and for the statement made by a senior management employee of [OSCURATO:PERSONA] referred to in the third indent of paragraph 67 above. 73 Thus, contrary to the finding made by the [OSCURATO:PERSONA] of Appeal in the contested decision, the Bundesnetzagentur report cannot be considered to be crucial in demonstrating that the contested mark was no longer used from 2017. 74 [OSCURATO:PERSONA] of Appeal could not therefore reject the relevance of the evidence relied on by the applicant, which was the same as that which led to the finding that there was genuine use of the mark e.plus in the decision referred to in paragraph 72 above, in so far as at least some of that evidence related to the relevant period in the present case, but, at the very least, in accordance with the principles of equal treatment and good administration, should have considered with especial care whether it should decide in the same way or not, provided that respect for those principles is consistent with respect for legality (judgment of 28 June 2018, EUIPO v Puma , C‑564/16 P, EU:C:2018:509, paragraph 22). 75 Lastly, by its argument alleging that, after 2016, the ‘E-[OSCURATO:PERSONA]’ mobile telephone network no longer existed, the intervener submits that the contested mark ceased to be used from that date, an argument which it had also put forward before the [OSCURATO:PERSONA] of Appeal with supporting evidence. [OSCURATO:PERSONA] of Appeal reproduced that evidence, in paragraphs 56 and 57 of the contested decision, as a premiss for its examination, in paragraph 58 et seq. of that decision, of the evidence submitted by the applicant to demonstrate use of the contested mark. That evidence concerning ‘cessation’ of use of that mark, as set out in that decision, is as follows: –        a printout of the applicant’s website, obtained via [OSCURATO:PERSONA] and dated 31 March 2016, consisting in an article dated 3 February 2016 according to which the ‘BASE’ and ‘E-[OSCURATO:PERSONA]’ tariffs would be transferred to the O2 brand (paragraphs 5 and 56 of the decision in question); –        a printout of the ‘www.dundle.com’ website, dated 15 April 2021, where it is asserted that the E-[OSCURATO:PERSONA] mark has been discontinued and that existing customers have been transferred to O2 (paragraphs 5 and 57 of that decision); –        printouts from the ‘www.alditalk.de’ website, obtained via [OSCURATO:PERSONA], dated 2 December 2021 and 22 May 2022, according to which the tariff options for the service offering marketed under the mark [OSCURATO:PERSONA] are offered in the ‘[OSCURATO:PERSONA]’ network (paragraphs 5 and 57 of that decision); –        the terms and conditions and mandatory information for the service offering marketed under the mark [OSCURATO:PERSONA] from July 2024 (paragraphs 16 and 57 of the decision concerned). 76 In that regard, the evidence thus adduced, namely the announcement of the transfer of ‘E-[OSCURATO:PERSONA]’ tariffs to the O2 brand and the provision of services marketed under the mark [OSCURATO:PERSONA], does not suggest that the contested mark was not used during the relevant period. 77 Indeed, in the present case, as is clear from paragraphs 64 to 68 above, the applicant has demonstrated to the requisite legal standard the nature of use of the contested mark for telecommunications services in Class 38 during the relevant period. 78 Moreover, as has been held, the gradual transfer desired by the applicant in the past from the mark E-[OSCURATO:PERSONA] to the mark O2 did not prove that use of the former mark had ceased, but rather indicated the applicant’s intention to combine a number of marks within a common network (see, to that effect, judgments of 23 October 2024, ePlus v EUIPO – [OSCURATO:PERSONA] (E-[OSCURATO:PERSONA]) , T‑462/23, not published, EU:T:2024:715, paragraph 51, and of 23 October 2024, ePlus v EUIPO – [OSCURATO:PERSONA] (E-[OSCURATO:PERSONA]) , T‑463/23, not published, EU:T:2024:716, paragraph 51). 79 Furthermore, the [OSCURATO:PERSONA] has also ruled that the fact that the applicant intended to promote the coexistence of the figurative mark e.plus with the mark O2 in order to enable the transition from one to the other demonstrates that the applicant continued to provide telecommunications services under the contested mark using its own network (see, to that effect, judgment of 16 October 2024, e.plus , T‑604/23, not published, EU:T:2024:695, paragraph 40). The same conclusion must be drawn with regard to the contested mark. 80 In the light of the foregoing considerations, it must be concluded that the [OSCURATO:PERSONA] of Appeal made an error of assessment in holding that the evidence submitted by the applicant did not prove the nature of use of the contested mark during the relevant period in respect of telecommunications services in Class 38. 81 It follows that the first plea in law, in so far as it relates to services in Class 38, must be upheld. The second plea in law , alleging infringement of the right to good administration 82 The applicant claims, in essence, as it clarified at the hearing, that the reasoning in the contested decision does not enable it to understand the reasons why the [OSCURATO:PERSONA] of Appeal ruled in a different vein compared with previous cases, which, in its view, infringes the requirements arising from the judgment of 28 June 2018, EUIPO v Puma (C‑564/16 P, EU:C:2018:509). In particular, it submits that the [OSCURATO:PERSONA] of Appeal made an abstract and contradictory assessment of evidence which was identical to evidence which it had submitted in other proceedings. It adds that the [OSCURATO:PERSONA] of Appeal merely stated that it was not bound by its own previous decisions, even though some of those decisions had been made between the same parties. 83 In the first place, it should be noted that, in the present plea in law, the applicant merely challenges paragraphs 66 and 67 of the contested decision concerning the [OSCURATO:PERSONA] of Appeal’s assessment of the relevance of the previous decisions which it had identified. The applicant does not therefore put forward any specific arguments relating to SIM cards ([OSCURATO:PERSONA]), which are the only goods or services in respect of which the second plea in law should be examined, further to the conclusion set out in paragraph 81 above. 84 Indeed, as far as SIM cards ([OSCURATO:PERSONA]) in Class 9 are concerned, it should be stated that, in paragraphs 56 to 71 of the contested decision, the [OSCURATO:PERSONA] of Appeal examined the nature of use for telecommunication services in Class 38 and not for those SIM cards. 85 In the second place, the applicant does not identify any previous decision in support of its complaint in which the evidence was assessed differently from the assessment carried out in the contested decision, with the result that the applicant’s complaint alleging breach of the principle of good administration in relation to SIM cards ([OSCURATO:PERSONA]) in Class 9 is not substantiated. 86 In the third place, moreover, it may be observed, with regard to the previous decision of the [OSCURATO:PERSONA] of Appeal of EUIPO of 30 June 2023 ([OSCURATO:PERSONA] R 1199/2022-1 and R 1711/2022-1), referred to in paragraph 64 of the contested decision and examined in paragraphs 70 to 72 above in connection with the first plea in law, that it did not concern SIM cards ([OSCURATO:PERSONA]) in Class 9. [OSCURATO:PERSONA] of Appeal had held, in paragraph 36 of that previous decision, that the applicant for revocation did not challenge the assessment of the evidence relating to SIM cards and raised specific arguments only for Class 38. Consequently, that previous decision did not include a substantive assessment of use of the figurative mark e.plus for SIM cards ([OSCURATO:PERSONA]) in Class 9 and the applicant therefore cannot claim a contradiction between the contested decision and that previous decision in respect of the assessment of the nature of use for those goods. 87 Accordingly, in so far as it concerns SIM cards ([OSCURATO:PERSONA]) in Class 9, the second plea in law must be rejected. 88 Consequently, the contested decision must be annulled in so far as it relates to telecommunication services in Class 38 and the action must be dismissed as to the remainder. Costs 89 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 90 Since EUIPO has been largely unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant for the purposes of the proceedings before the [OSCURATO:PERSONA], in accordance with the form of order sought by the applicant. 91 Since the intervener has been unsuccessful, it must be ordered to bear its own costs relating to the proceedings before the [OSCURATO:PERSONA], in accordance with the form of order sought by the applicant. 92 With regard to costs incurred before the [OSCURATO:PERSONA] of Appeal, in accordance with [OSCURATO:PERSONA] 190(2) of the Rules of Procedure, it will be for the [OSCURATO:PERSONA] of Appeal to decide, in the light of the present judgment, on the costs relating to those proceedings before it (see, to that effect, judgments of 28 June 2011, ATB Norte v OHIM – Bricocenter Italia ([OSCURATO:PERSONA]) , T‑475/09, not published, EU:T:2011:308, paragraph 69, and of 29 May 2018, Uribe-[OSCURATO:PERSONA] v EUIPO – Núcleo de comunicaciones y control (SHERPA) , T‑577/15, EU:T:2018:305, paragraph 94). On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Annuls the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 24 February 2025 ([OSCURATO:PERSONA] R 395/2024-1) in so far as it relates to telecommunication services in Class 38; 2. Dismisses the action as to the remainder; 3. Orders EUIPO to bear its own costs and to pay those incurred by [OSCURATO:PERSONA] GmbH & Co. OHG for the purposes of the proceedings before the [OSCURATO:PERSONA]; 4. Orders ePlus Inc. to bear its own costs relating to the proceedings before the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] in open court in Luxembourg on 30 September 2026. V. [OSCURATO:PERSONA] S. [OSCURATO:PERSONA] * Language of the case: English.