Judgment of the General Court (Eighth Chamber) 30 September 2026

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

30 September 2026 ( * )

( EU trade mark – Revocation proceedings – EU figurative mark e plus – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 – Nature of use of the mark )

In Case T‑257/25,

Telefónica Germany GmbH & Co. OHG, established in Munich (Germany), represented by P. Neuwald, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by M. Eberl, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

ePlus Inc., established in Herndon, Virginia (United States), represented by V. von Bomhard and J. Fuhrmann, lawyers,

THE GENERAL COURT (Eighth Chamber),

composed of I. Gâlea, President, B. Ricziová and L. Spangsberg Grønfeldt (Rapporteur), Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 25 February 2026,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Telefónica Germany GmbH & Co. OHG, seeks the partial annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 February 2025 (Case R 394/2024-1) (‘the contested decision’).

Background to the dispute

2 On 10 November 2022, the intervener, ePlus Inc., filed an application with EUIPO for revocation of the EU trade mark registered on 18 February 2002, following an application submitted on 5 March 1996 by the applicant 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, 37, 38 and 42 of the Nice Agreement Concerning the International Classification 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, batteries, connecting cables, holding devices, auto holding devices, carriers, aerials; data processing apparatus and computers’;

– Class 37: ‘Structural and civil engineering, repair work for buildings, installation and assembly of radio and communications devices, repair and maintenance of electrical engineering products; multiple services, in particular establishing a call answering system as a function of a central computer, or of a mailbox’;

– Class 38: ‘Communications by telephone, in particular mobile radiotelephone services, telecommunications networks, in particular mobile radiotelephone networks, message sending, multiple services, namely services in connection with the actual network services and services which promote and facilitate the convenient use of network based services, in particular message sending, call relaying, conference systems, telephone services, in particular hotel reservations, weather reports, travel agency services, secretarial services; rental of data processing installations, in particular telecommunications apparatus’;

– Class 42: ‘Architectural and construction drafting, computer programming, in particular for telecommunications’.

4 The ground relied on in support of the application for revocation was that set out in Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), namely the lack of genuine use of the contested mark.

5 On 1 February 2024, the Cancellation Division 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 Board of Appeal against the Cancellation Division’s decision.

7 By the contested decision, the Board of Appeal dismissed the appeal. It held, in essence, that the evidence submitted did not demonstrate, in accordance with Article 10(3) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), 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 Court should:

– annul the contested decision, in so far as it relates to telecommunications services in Class 38;

– order EUIPO to pay the costs, including those incurred for the purposes of the proceedings before the First Board of Appeal of EUIPO;

– order the intervener to bear its own costs.

9 EUIPO contends that the Court 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 Court 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 Article 58(1)(a) and Article 58(2) of Regulation 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 Article 263 TFEU and Article 72 of Regulation 2017/1001. In particular, it challenges the ground on which the Board of Appeal relied in asserting, without further justification, that it had not submitted any evidence of use in respect of the services in Classes 9, 37 and 42.

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 Board 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, if necessary, be examined with that plea in law.

The first plea in law , alleging infringement of Article 58 (1)(a) and Article 58 (2) of Regulation 2017/1001

18 By the first plea in law, the applicant challenges, in essence, the Board of Appeal’s assessment that use of the contested mark was not demonstrated in respect of telecommunications services in Class 38.

19 Under Article 58(1)(a) of Regulation 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 European Union in connection with the goods or services in respect of which it is registered and there is no proper reason for non-use.

20 Under Article 10(3) and (4) of Delegated Regulation 2018/625, which is applicable to revocation proceedings pursuant to Article 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 Article 97(1)(f) of Regulation 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 – Espadafor Caba (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 Board 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 Article 10(3) and (4) of Delegated Regulation 2018/625, relate to the place, time, extent and nature of its use, the Board of Appeal confined itself, in the contested decision, to assessing the nature of use of the contested mark.

25 Indeed, the Board 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 two aspects, the Board of Appeal concluded, in paragraphs 41, 42 and 43 to 46 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 and in forms which did not alter its distinctive character.

27 As regards, by contrast, the third aspect, namely use of the contested mark for the goods and services for which it was registered, the Board of Appeal held, in paragraphs 47 to 71 of the contested decision, that such use had not been demonstrated for all the goods and services concerned.

28 The Board 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-Plus’ tariffs would be transferred to the O2 brand and the fact that mobile telephone services provided by the applicant, through its subsidiary E-Plus Service GmbH, as the applicant clarified at the hearing, would be offered under the ALDI TALK trade mark.

29 Next, in paragraphs 58 to 63 of the contested decision, the Board 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.

30 Lastly, in paragraphs 64 to 71 of the contested decision, the Board 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.

31 The applicant submits, first, that, contrary to the finding made by the Board 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 ALDI TALK and Ortel Mobile brands, on which the contested mark also appeared.

32 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 Board 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.

33 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 First Board of Appeal of 30 June 2023 (Joined Cases R 1199/2022‑1 and R 1711/2022‑1), confirmed by the judgment of 16 October 2024, ePlus v EUIPO – Telefónica Germany (e.plus) (T‑604/23, not published, EU:T:2024:695), in which the same Board 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 First Board 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.

34 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-Plus’ mobile telephone network, since the network itself and the related telecommunications services were marketed under the O2 brand.

35 It should be noted at the outset that the Board 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 ‘communications by telephone, in particular mobile radiotelephone services, telecommunications networks, in particular mobile radiotelephone networks, message sending, multiple services, namely services in connection with the actual network services and services which promote and facilitate the convenient use of network based services, in particular message sending, call relaying, conference systems, telephone services, in particular hotel reservations, weather reports, travel agency services, secretarial services; rental of data processing installations, in particular telecommunications apparatus’. The applicant does not challenge that approach.

36 That being said, it is necessary, in the light of the case-law recalled in paragraphs 21 and 22 above, to examine whether the Board 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.

37 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 ALDI TALK 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 Ortel Mobile 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 (Annex A.9 to the application).

38 It must be held that the evidence referred to in paragraph 37 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.

39 The Court 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).

40 Furthermore, the applicant also submitted affidavits from senior management employees of the applicant or of Ortel Mobil 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 Ortel Mobil, 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).

41 Accordingly, when taken together with the evidence referred to in paragraph 37 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.

42 Furthermore, the applicant submits that the Court 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).

43 It should be observed in that regard that the Board 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 First Board of Appeal of EUIPO of 30 June 2023 (Joined Cases 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 (German Federal Agency for Electricity, Gas, Telecommunications, Post and Railway; ‘the Bundesnetzagentur report’). The Board of Appeal inferred from that that ‘the existence of a mobile telephone network in Germany under [the contested EU trade mark]’ could not be confirmed for 2017, the first year of the relevant period.

44 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.

45 Furthermore, several items of evidence on which the Board of Appeal had thus relied in the decision of the First Board of Appeal of EUIPO of 30 June 2023 (Joined Cases 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 First Board 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 40 above; for the advertising poster dating from 2019 concerning the service offering marketed under the mark Ortel Mobile referred to in the second indent of paragraph 37 above; and for the statement made by a senior management employee of Ortel Mobil referred to in the third indent of paragraph 40 above.

46 Thus, contrary to the finding made by the Board 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.

47 The Board 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 45 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).

48 Lastly, by its argument alleging that, after 2016, the ‘E-Plus’ mobile telephone network no longer existed, the intervener submits that the contested mark had ceased to be used from that date, an argument which it had also put forward before the Board of Appeal with supporting evidence. The Board 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 Wayback Machine and dated 31 March 2016, consisting in an article dated 3 February 2016 according to which the ‘BASE’ and ‘E-Plus’ 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-Plus 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 Wayback Machine, dated 2 December 2021 and 22 May 2022, according to which the tariff options for the service offering marketed under the mark ALDI TALK are offered in the ‘Telefónica Deutschland’ network (paragraphs 5 and 57 of that decision);

– the terms and conditions and mandatory information for the service offering marketed under the mark ALDI TALK from July 2024 (paragraphs 16 and 57 of the decision concerned).

49 In that regard, the evidence thus adduced, namely the announcement of the transfer of ‘E-Plus’ tariffs to the O2 brand and the provision of services marketed under the mark ALDI TALK, does not suggest that the contested mark was not used during the relevant period.

50 Indeed, in the present case, as is clear from paragraphs 37 to 41 above, the applicant has demonstrated to the requisite legal standard the nature of use of the contested mark for the telecommunications services in Class 38 at issue during the relevant period.

51 Moreover, as has been held, the gradual transfer desired by the applicant in the past from the mark E-Plus 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 – Telefónica Germany (E-Plus) , T‑462/23, not published, EU:T:2024:715, paragraph 51, and of 23 October 2024, ePlus v EUIPO – Telefónica Germany (E-Plus) , T‑463/23, not published, EU:T:2024:716, paragraph 51).

52 Furthermore, the Court 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.

53 In the light of the foregoing considerations, it must be concluded that the Board 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.

54 It follows that the first plea in law must be upheld and that, accordingly, the contested decision must be annulled in so far as it relates to telecommunications services in Class 38, without there being any need to examine the second plea in law, alleging infringement of the right to good administration.

Costs

55 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

56 Since EUIPO has been 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 Court, in accordance with the form of order sought by the applicant.

57 Since the intervener has been unsuccessful, it must be ordered to bear its own costs relating to the proceedings before the Court, in accordance with the form of order sought by the applicant.

58 With regard to costs incurred before the Board of Appeal, in accordance with Article 190(2) of the Rules of Procedure, it will be for the Board 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 (BRICO CENTER) , T‑475/09, not published, EU:T:2011:308, paragraph 69, and of 29 May 2018, Uribe-Etxebarría Jiménez v EUIPO – Núcleo de comunicaciones y control (SHERPA) , T‑577/15, EU:T:2018:305, paragraph 94).

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 February 2025 (Case R 394/2024-1) in so far as it relates to telecommunications services in Class 38;

2. Orders EUIPO to bear its own costs and to pay those incurred by Telefónica Germany GmbH & Co. OHG for the purposes of the proceedings before the General Court;

3. Orders ePlus Inc. to bear its own costs relating to the proceedings before the General Court.

Delivered in open court in Luxembourg on 30 September 2026.

* Language of the case: English.