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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

30 September 2026 ( * )

( EU trade mark – Revocation proceedings – EU word mark ATHLETA – Genuine use of the mark – Article 58(1)(a) of Regulation (EU) 2017/1001 – Use in connection with the goods and services in respect of which the mark is registered )

In Cases T‑800/25 and T‑801/25,

Athleta (ITM), Inc., established in San Francisco (United States), represented by B. Guimberteau, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Lobotková, acting as Agent,

defendant,

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

Sports Group Denmark A/S, established in Silkeborg (Denmark), represented by A.-S. Kjeldbjerg Hilligsøe, lawyer,

THE GENERAL COURT (Ninth Chamber),

composed of S. Kingston (Rapporteur), President, A. Marcoulli and P. Zilgalvis, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its two actions under Article 263 TFEU, the applicant, Athleta (ITM), Inc., seeks the annulment of the decisions of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 September 2025 (Cases R 29/2025-4 and R 28/2025-4) (‘the contested decisions’).

Background to the dispute

The first contested mark (Case T ‑ 800 /25)

2 On 15 September 2008, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign ATHLETA.

3 The mark applied for covered the goods and services in Classes 3, 9, 14, 18, 25, 28 and 35 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, corresponding, for Classes 18, 25 and 35, to the following description:

– Class 18: ‘Bags, luggage, leather goods, umbrellas, key cases, handbags, purses, backpacks, school bags, book bags, fanny packs, tote bags, credit card cases, wallets, cosmetic cases’;

– Class 25: ‘Clothing, footwear, headgear and clothing accessories’;

– Class 35: ‘Retail store services in the field of a wide variety of general merchandise, clothing, footwear, headgear, clothing accessories, bags, leather goods, sunglasses, jewellery, hair accessories, cosmetics, toiletries, fragrances and personal care products, toys and games, and sporting goods; promotional services in the fashion field including counselling on the selection and matching of fashion products and accessories; management of retail store services in relation to clothing and a variety of other merchandise; advertising and marketing services; operation of consumer loyalty programs; promoting the goods and services of others by placing advertisements and promotional displays on an electronic site accessible through a computer network; providing on-line retail services and on-line ordering services in the field of a wide variety of general merchandise; namely clothing, footwear, headgear, clothing accessories, bags, leather goods, sunglasses, jewellery, hair accessories, cosmetics, toiletries, fragrances and personal care products, toys and games and sporting goods; mail order catalogue services; computer on-line ordering services’.

4 The first contested mark was registered on 4 August 2009 under No 7 234 503.

The second contested mark (Case T ‑ 801 /25)

5 On 11 April 2017, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign ATHLETA.

6 The mark applied for covered the goods and services in Classes 9, 14, 18, 21, 24, 27, 28 and 35 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, corresponding, for Classes 18 and 35, to the following description:

– Class 18: ‘Bags, luggage, umbrellas, key cases, handbags, purses, backpacks, school bags, duffel bags, sport bags, swim bags, book bags, fanny packs, tote bags, credit card cases, wallets, cosmetic cases’;

– Class 35: ‘Retail store services in the fields of clothing, footwear, headgear, clothing accessories, bags, leather goods being clothing accessories, belts, bags, shoes, luggage tags, sunglasses, jewellery, hair accessories, cosmetics, toiletries, fragrances and personal care products, toys and games, and sporting goods; promotional services in the fashion field including counselling on the selection and matching of fashion products and accessories; management of retail store services in relation to clothing footwear, headgear, clothing accessories, bags, leather goods being clothing accessories, belts, bags, shoes, luggage tags, sunglasses, jewellery, hair accessories, cosmetics, toiletries, fragrances and personal care products, toys and games, and sporting goods; advertising and marketing services; operation of consumer loyalty programs; promoting the goods and services of others by placing advertisements and promotional displays on an electronic site accessible through a computer network; providing on-line retail services and on-line ordering services in the field of a wide variety of general merchandise; namely clothing, footwear, headgear, clothing accessories, bags, being clothing accessories, belts, bags, shoes, luggage tags, sunglasses, jewellery, hair accessories, cosmetics, toiletries, fragrances and personal care products, toys and games, and sporting goods; mail order catalogue services; computer on-line ordering services’.

7 The second contested mark was registered on 25 August 2017 under No 16 581 605.

The revocation proceedings

8 On 4 April 2023, the intervener, Sports Group Denmark A/S, filed two applications for revocation, one against the first contested mark and the other against the second contested mark, pursuant to 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), in respect of all the goods and services for which they had been registered.

9 On 13 November 2024, the Cancellation Division issued two decisions. As regards the first contested mark, it upheld the application for revocation in part and revoked that mark in respect of all the goods and services for which it had been registered, except for goods in Class 25 corresponding to the following description: ‘sport clothing’. As regards the second contested mark, the Cancellation Division upheld the application for revocation and revoked that mark in respect of all the goods and services for which it had been registered.

10 On 7 January 2025, the applicant filed a notice of appeal with EUIPO against each of the Cancellation Division’s decisions.

11 On 22 September 2025, the Board of Appeal issued the contested decisions. In the decision concerning the first contested mark (‘the first contested decision’), it partially upheld the appeal, observing, contrary to the Cancellation Division’s finding, that the evidence showing genuine use of the first contested mark had not been restricted to a distinct category of ‘sport clothing’, but extended, instead, to the broader category of ‘clothing’ in Class 25. Therefore, the Board of Appeal found that the first contested mark remained valid for that broader category of goods, but confirmed revocation of that mark for the remaining goods and services referred to in paragraph 3 above. In the decision concerning the second contested mark (‘the second contested decision’), the Board of Appeal confirmed the revocation of the second contested mark for all the goods and services referred to in paragraph 6 above.

Forms of order sought

12 The applicant claims that the Court should:

– partially annul the contested decisions, in so far as the Board of Appeal revoked the contested marks in respect of all the goods and services in Classes 18 and 35, referred to in paragraphs 3 and 6 above, and, in respect of the first contested decision, in respect of some of the goods in Class 25, namely ‘footwear, headgear and clothing accessories’;

– order EUIPO and the intervener to pay the costs, including those relating to the proceedings before the Cancellation Division and the Board of Appeal.

13 EUIPO contends that the Court should:

– dismiss the actions;

– order the applicant to pay the costs in the event that a hearing is convened.

14 The intervener contends that the Court should:

– dismiss the actions;

– order the applicant to pay the costs.

Law

15 After giving the parties the opportunity to submit their observations, the Court decided to join the present cases for the purposes of the judgment, in accordance with Article 68(1) of the Rules of Procedure of the General Court.

16 By its actions, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 58(1)(a) of Regulation 2017/1001, read in conjunction with Article 18 of that regulation, and 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).

17 The single plea in law consists of two parts, alleging errors of assessment by the Board of Appeal in its examination of genuine use of the contested marks, first, in connection with some of the goods in Class 25 referred to in paragraph 3 above, namely ‘footwear, headgear and clothing accessories’, with respect to the first contested mark, and secondly, in connection with the goods and services in Classes 18 and 35 referred to in paragraphs 3 and 6 above, with respect to both of the contested marks.

18 Article 58(1)(a) of Regulation 2017/1001 provides that 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 trade mark has not been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use.

19 Under Article 10(3) and (4) of Delegated Regulation 2018/625, which is applicable to revocation proceedings pursuant to Article 19(1) of that regulation, proof of use of a trade mark must establish the place, time, extent and nature of use of the mark.

20 There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see, by analogy, judgment of 11 March 2003, Ansul , C‑40/01, EU:C:2003:145, paragraph 43). Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT) , T‑203/02, EU:T:2004:225, paragraph 39; see also, to that effect and by analogy, judgment of 11 March 2003, Ansul , C‑40/01, EU:C:2003:145, paragraph 37).

21 When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, VITAFRUIT , T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul , C‑40/01, EU:C:2003:145, paragraph 43).

22 Furthermore, genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT) , T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT) , T‑356/02, EU:T:2004:292, paragraph 28). An overall assessment must be made which takes account of all the relevant factors in the particular case and which implies a certain interdependence between the factors taken into account (see judgment of 18 January 2011, Advance Magazine Publishers v OHIM – Capela & Irmãos (VOGUE) , T‑382/08, not published, EU:T:2011:9, paragraph 30 and the case-law cited).

23 The applicant’s arguments must be examined in the light of those principles.

24 As indicated in paragraph 11 above, the Board of Appeal, in the first contested decision, found that the first contested mark was valid for ‘clothing’ in Class 25. However, that finding is not the subject of the present action; neither did the applicant challenge the Board of Appeal’s confirmation, in that decision, of the Cancellation Division’s revocation of that mark for the goods in Classes 3, 9, 14 and 28, or the Board of Appeal’s confirmation, in the second contested decision, of the Cancellation Division’s revocation of the second contested mark for the goods and services in Classes 9, 14, 21, 24, 27 and 28. Those findings have therefore become final.

25 The Court also notes that, as was observed in the contested decisions, in view of the date on which the applications for revocation were filed, namely 4 April 2023, the five-year period referred to in Article 58(1)(a) of Regulation 2017/1001 runs from 4 April 2018 to 3 April 2023 (‘the relevant period’), in relation to both contested marks.

26 In the present case, as is apparent from the administrative files and as is noted in the contested decisions (see first contested decision, paragraph 7, and second contested decision, paragraph 5), in order to prove genuine use of the contested marks, the applicant submitted before the Cancellation Division (i) a witness statement signed on 16 August 2023 accompanied by 38 supporting documents (Exhibits HH1 to HH38 in the administrative files), and (ii) a witness statement signed on 22 February 2024 accompanied by 15 supporting documents (Exhibits BS1 to BS8 and annexes 1 to 7 in the administrative files).

27 Furthermore, as concerns the goods and services that are the subject of the present action, the applicant contests the Board of Appeal’s assessments in relation to the nature of use of the contested marks and the question of whether those marks were used for the goods or services for which they were registered. In particular, the findings made by the Board of Appeal in the first contested decision in respect of time, place and extent of use are not the subject of the present action.

28 It is necessary to examine first the arguments raised by the applicant in relation to the goods at issue in Class 25 concerning the first contested mark, before proceeding to the examination of its arguments in relation to the goods and services at issue in Classes 18 and 35 concerning both contested marks.

The first part of the single plea in Case T ‑ 800 /25 , alleging i ncorrect assessment of use in relation to ‘ footwear, headgear and clothing accessories ’ in Class 25 with respect to the first contested mark

29 By the first part of its single plea in law, the applicant submits that the Board of Appeal erred in holding that the evidence of use before it was not sufficient to prove genuine use of the first contested mark for ‘footwear, headgear and clothing accessories’ in Class 25. The applicant claims that, in the light of the case-law recognising that it is, in practice, impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration, and given that it had already provided evidence of use of different types of footwear, headgear and clothing accessories, the Board of Appeal could not validly require it to file evidence of use for all types of subcategories within those broad categories.

30 EUIPO and the intervener dispute the applicant’s arguments.

31 In the first contested decision, the Board of Appeal found that, taking into account all the evidence submitted by the applicant before the Cancellation Division, there was insufficient proof of any real commercial exploitation of the first contested mark for ‘footwear, headgear and clothing accessories’ in Class 25. It found that the limited evidence provided to it did not prove that those goods had been marketed under the first contested mark in the European Union and was therefore insufficient to demonstrate that the applicant had used that mark to maintain or create a market share in the relevant territory for those goods. In addition, the evidence was insufficient to establish the extent of use of the first contested mark for those goods, as there was no clear and specific evidence of the volume of sales relating to such goods during the relevant period in the European Union.

32 In that regard, under Article 58(2) of Regulation 2017/1001, where the grounds for revocation of rights exist in respect of only some of the goods or services for which the EU trade mark is registered, the rights of the proprietor are to be declared to be revoked in respect of those goods or services only.

33 According to the case-law, as regards goods or services which form part of a broad category, which may be subdivided into several independent subcategories, it is necessary to require the proprietor of a trade mark registered for that category of goods or services to adduce proof of genuine use of its trade mark for each of those independent subcategories, failing which that proprietor’s rights in the trade mark may be revoked in respect of the independent subcategories for which the proprietor has not adduced such proof (see, to that effect, judgment of 16 July 2020, ACTC v EUIPO , C‑714/18 P, EU:C:2020:573, paragraph 43). However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant subdivisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category (judgment of 14 July 2005, Reckitt Benckiser (España) v OHIM – Aladin (ALADIN) , T‑126/03, EU:T:2005:288, paragraph 45).

34 Nevertheless, although the principle of ‘partial use’, within the meaning of Article 58(2) of Regulation 2017/1001, operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not, however, result in the proprietor of the trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which it has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than in an arbitrary manner. It is in practice impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘some of the goods or services’, within the meaning of Article 58(2) of Regulation 2017/1001, cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or subcategories (see judgment of 9 July 2025, Bouwbenodigdheden Hoogeveen v EUIPO – Pürschel (BIENENBEISSER) , T‑144/24, EU:T:2025:700, paragraph 36 and the case-law cited).

35 In the first place, it is necessary to examine the applicant’s specific claims in relation to the evidence of use in respect of the goods at issue in Class 25.

36 In the first contested decision, the Board of Appeal found, in examining the evidence before it in relation to the categories at issue, that, as regards ‘footwear’, while certain images in the evidence submitted show shoes and sandals (for example, Exhibit HH1, containing screenshots of the applicant’s website taken from the 2018-2023 Wayback Machine digital archive showing images of sport clothing; Exhibit HH17, containing photographs of an area dedicated to the sale of sport clothing in John Lewis stores in London (England); and Exhibit HH38, containing excerpts from coverage in Stylist Magazine UK of the launch of the first contested mark in John Lewis stores), that evidence was inconclusive, as it was unclear whether that mark was used in relation to the goods at issue, and the applicant had not demonstrated any commercial activity or use of that mark in connection with footwear. In addition, the Board of Appeal found that there was no indication of sales of footwear in the evidence before it (for example, the invoices submitted by the applicant, their correlating tables displaying images of the products referred to in the invoices, or in the ATHLETA Placement manual on product branding).

37 Next, in relation to ‘headgear’, the Board of Appeal noted that the same reasoning applied and that, although some of the exhibits contained images of hats and caps, that evidence was inconclusive as it was unclear whether the first contested mark was used in relation to the goods at issue, for example in the case of the images displayed in the screenshots of the applicant’s website (Exhibit HH1). There was therefore no evidence demonstrating actual sales of goods identifiable as ‘headgear’ under the first contested mark, or any commercial activity or use of the first contested mark in connection with such goods.

38 Furthermore, with regard to ‘clothing accessories’, the Board of Appeal noted that that category of goods could be defined as items that complement and enhance an outfit. It observed that the only clothing accessories appearing in the evidence were headbands offered for sale by the applicant on EU websites of Zalando in August and October 2022, contained in Exhibits HH15 and HH26 respectively (screenshots from the Wayback Machine digital archive of the websites www.zalando.fr, www.zalando.it, www.zalando.es and www.zalando.de). The Board of Appeal also noted that the references to those items in the Excel spreadsheet relied on by the applicant (Annexes 6 and 7) were unsubstantiated by any further evidence. In addition, the reference to cloth facemasks in Exhibit HH1 was also inconclusive, as it was unclear whether those goods were marketed under the first contested mark or were made available to EU consumers during the relevant period. In addition, the Board of Appeal observed that there was no indication of any clothing accessories in the evidence submitted by the applicant, such as the invoices (Exhibits HH5, HH10 and HH27), the samples of press articles (Exhibit HH29), the marketing campaigns (Exhibit HH32) or the ATHLETA Placement manual of November 2022 (Annex 2). The Board of Appeal noted that, with regard to gloves and socks, those goods fall under the general category of ‘clothing’, for which genuine use was demonstrated.

39 In that regard, as concerns, first, the applicant’s claim that it provided invoices establishing use in relation to footwear, headgear and clothing accessories, it should be noted that the invoices issued by its manufacturing partner companies, referred to in Exhibits HH5 and HH10, with corresponding tables of marketed goods and correlating images of various clothing items containing product codes, referred to in Exhibits HH6 and HH11 respectively, contain no indication of sales for items of footwear, headgear or clothing accessories, as correctly noted by the Board of Appeal in the first contested decision. The same applies to the other invoices and corresponding tables attached to the witness statements contained in the administrative files, in particular those referred to in Exhibits HH21, HH25 to HH28, BS7 and BS8, and Annexes 3 and 4. Indeed, the invoices contained in the administrative files (Exhibits HH5, HH10, HH21, HH25, HH27, BS7 and BS8 and Annex 3), with their corresponding tables, do not show that the articles referred to were marketed under the first contested mark. In addition, as the Board of Appeal correctly observed, the spreadsheets in Annexes 6 and 7 contain references to amounts invoiced by a textile manufacturer to the applicant, but are not, however, substantiated by further evidence.

40 The Board of Appeal was therefore correct in stating, in the first contested decision, that there was no indication, in the invoices submitted by the applicant, of actual sales of items under the first contested mark that could be categorised as footwear, headgear or clothing accessories.

41 Secondly, the evidence referred to in the application, namely the images of goods contained in Exhibits HH1, HH11, HH15, HH17 HH26, HH31, HH36 and HH38, did not demonstrate that the first contested mark was used in connection with those goods.

42 Indeed, as regards footwear and headgear, the mere fact that those documents, comprising screenshots of the applicant’s website, of EU websites of Zalando, of John Lewis websites, of various blogs and magazines, of various social media accounts (Exhibits HH1, HH15, HH17, HH31, HH36 and HH38) and of product tables corresponding to the applicant’s invoices (Exhibits HH11 and HH26), contain some limited images of shoes and hats is not in itself sufficient to demonstrate proof of genuine use of the first contested mark for such goods. As the Board of Appeal correctly noted, it is not apparent from those images that the first contested mark was used in connection with the shoes and hats in question, or that those goods were sold under that mark. For example, in the evidence referred to in the application, which includes a Wayback Machine screenshot of the applicant’s website from 27 August 2018 (Exhibit HH1), two images depict women’s leggings, shorts and sports shoes. It is apparent from that screenshot that the leggings and shorts were being advertised under the first contested mark. While the model in each picture happens to be wearing sports shoes, there is no indication that the mark is used in connection with those shoes or that the shoes are being offered for sale under that mark. Similarly, photographs depicting sandals or sports shoes and other sport clothing, contained in Exhibit HH1, as well as hats and caps in Exhibit HH31, also referred to in the application, are not sufficient to demonstrate use of the first contested mark, as it does not appear that that mark was being used in connection with the goods at issue, nor do those images provide any indication as to whether those goods were being sold under that mark.

43 As regards clothing accessories, the Board of Appeal noted that such goods only appeared in the form of ‘headbands’ offered for sale in August and October 2022 on the Zalando.de website under the first contested mark (Exhibits HH15 and HH26), and in a reference to those headbands in Excel spreadsheets comprising alleged amounts invoiced by one of the applicant’s licensed textile manufacturers (contained in Annexes 6 and 7), as indicated in paragraph 39 above. However, those items are unsubstantiated by further evidence. Indeed, the Court has held, as recalled in paragraph 21 above, that when assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark. In those circumstances, the limited evidence from the Zalando websites in question and the reference to headbands in a sales spreadsheet do not comprise sufficient evidence of genuine use of the first contested mark.

44 In addition, in the screenshots of the applicant’s social media accounts (Exhibit HH31) advertising certain goods, their prices are shown in United States dollars, and there is no evidence that EU customers were exposed to that content. The Board of Appeal was therefore correct in finding that there was no indication in the evidence adduced by the applicant that specific orders were made by customers in the European Union within the relevant period for goods which may fall under the categories ‘footwear, headgear and clothing accessories’.

45 Thirdly, in so far as the applicant refers, in general terms in its application, to its observations filed before EUIPO, it should be noted that, although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the failure to set out the essential elements of the legal argument which must appear in the application itself (see judgment of 19 October 2006, Bitburger Brauerei v OHIM – Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud) , T‑350/04 to T‑352/04, EU:T:2006:330, paragraph 33 and the case-law cited; see also, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission , C‑382/12 P, EU:C:2014:2201, paragraphs 40 and 41). Such a general and vague reference to the applicant’s observations before EUIPO is therefore inadmissible.

46 It follows from the foregoing that the Board of Appeal correctly held that the applicant had failed to adduce sufficient evidence of actual use, or a fortiori of the extent of that use, of the first contested mark in connection with ‘footwear, headgear and clothing accessories’ in Class 25. Accordingly, the Board of Appeal made no error of assessment in finding that the applicant had not provided sufficient proof of genuine use of that mark in connection with those goods during the relevant period in the European Union.

47 In the second place, contrary to the applicant’s assertion, the Board of Appeal did not, in the first contested decision, request that the applicant file evidence of use for ‘all types of subcategories’ within the categories of footwear, headgear and clothing accessories.

48 On the contrary, as noted in paragraph 31 above, the Board of Appeal found that, taking into account all the evidence submitted by the applicant before the Cancellation Division, there was insufficient proof of any real commercial exploitation of the first contested mark for each of the categories ‘footwear, headgear and clothing accessories’ in Class 25, that the evidence was clearly insufficient to demonstrate that the applicant had used that mark to maintain or create a market share in the European Union for those categories of goods, and that there was no clear and specific evidence of the volume of sales relating to such goods during the relevant period in the European Union.

49 It is true that, in accordance with the case-law cited in paragraph 34 above, the applicant could not validly have been required to prove use for all conceivable variations of the goods at issue. However, that principle does not change the fact that, pursuant to the settled case-law referred to in paragraph 22 above, genuine use of a mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned. Furthermore, as recalled in paragraph 33 above, the Court of Justice has held that, in the case of goods or services which may be divided into independent subcategories, it is incumbent upon a proprietor of a trade mark to adduce proof of genuine use of its trade mark for each of those independent subcategories.

50 It follows that the applicant was obliged, in accordance with the case-law, to adduce solid and objective evidence demonstrating genuine use for each of the distinct categories of ‘footwear, headgear and clothing accessories’. As was concluded in paragraph 46 above, the applicant provided insufficient proof of genuine use of the first contested mark in connection with the goods in those categories. It follows that the Board of Appeal was correct in finding that the applicant failed to adduce sufficient proof of genuine use of the first contested mark in connection with ‘footwear, headgear and clothing accessories’ in Class 25.

51 Consequently, the first part of the applicant’s single plea must be rejected.

The second part of the single plea in Case T ‑ 800 /25, and the single plea in Case T ‑ 801 /25 , alleging i ncorrect assessment of use in relation to the goods and services in C lasses 18 and 35 with respect to the first and second contested marks

52 By the second part of the single plea in Case T‑800/25, and by the single plea in Case T‑801/25, the applicant submits that the Board of Appeal erred in finding that the evidence of use adduced before the Cancellation Division was insufficient to prove genuine use for all the goods in Class 18 and the services in Class 35 referred to in paragraphs 3 and 6 above, with respect to both contested marks. The applicant relies on the case-law recognising that it is, in practice, impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration, and claims that it provided evidence of use of the contested marks for the goods in Class 18 and the services in Class 35 for which they had been registered. In particular, the applicant points out that the evidence submitted includes screenshots of product images or invoices showing goods in Class 18, such as backpacks, belt bags (fanny packs), tote bags, card cases and school rucksacks.

53 EUIPO and the intervener dispute the applicant’s arguments.

The goods in Class 18

54 In the contested decisions, as regards the goods at issue in Class 18, the Board of Appeal did not dispute the applicant’s claims that, in the evidence submitted, a screenshot of the applicant’s website from April 2019 showed rucksacks on sale (marketed in US dollars) and that images from the applicant’s website taken from the Wayback Machine digital archive from September 2020 showed that a belt bag (fanny pack) and a rucksack were contained in Exhibit HH1. In addition, the Board of Appeal acknowledged that a distribution agreement (Exhibit HH16) mentioned bags, handbags and backpacks amongst other goods that the applicant permitted a third party to purchase.

55 In the second contested decision, the Board of Appeal noted that an additional screenshot of the applicant’s social media accounts showed an image depicting a belt bag (fanny pack), dated 22 June 2021 (Exhibit HH31).

56 However, the Board of Appeal observed that the evidence contained no further references to the goods at issue, nor any references to the volume of business, sales or marketing activities related to the goods at issue in Class 18. Moreover, it noted that it could not be ascertained whether the evidence related to the territory of the European Union, as it referred to the sale of products in US dollars and was not country specific.

57 As a result, taking into account the evidence as a whole, the Board of Appeal found that there was no proof of real commercial exploitation of the contested marks with regard to the sale of the goods at issue in Class 18, as the limited evidence adduced by the applicant was insufficient to demonstrate that it had used those marks to maintain or create a market share for those goods. For the sake of completeness, the Board of Appeal added that the evidence was also insufficient to demonstrate the extent of use of those goods on account of the lack of evidence of the commercial volume of sales of such goods. The minimal use of the contested marks on the websites shown by the applicant qualified only as ‘token use’.

58 In the present case, with regard to the goods at issue in Class 18, the applicant maintains that Exhibits HH1, HH6, HH22 and HH31, which include screenshots of product images and product tables relating to invoices, show evidence of use of the contested marks for backpacks, belt bags (fanny packs), tote bags, card cases and school rucksacks.

59 In that regard, with respect to the commercial exploitation of the contested marks in relation to the goods in Class 18, the Board of Appeal was correct in finding that the evidence submitted by the applicant, in the exhibits attached to the witness statement of 16 August 2023, contained no references to the volume of business, sales or marketing activities related to those goods. Indeed, none of the invoices in Exhibits HH5, HH10 and HH27 mention any of the goods at issue, and the same can be said of the corresponding tables of marketed goods included in those invoices, referred to in Exhibits HH6, HH11 and HH28.

60 Furthermore, as correctly stated by the Board of Appeal in the contested decisions (see paragraph 114 of the first contested decision, and paragraph 40 of the second contested decision), it cannot be ascertained whether the evidence established use of the contested marks for those goods in the territory of the European Union.

61 For example, the evidence includes two Wayback Machine screenshots of the applicant’s website from 22 April 2019 showing various backpacks and a gearbag for sale in US dollars (Exhibit HH1). Another image depicts a rucksack and a belt bag (fanny pack) on the applicant’s website (contained in a Wayback Machine screenshot from 28 September 2020 in exhibit HH1), without any indication of whether those specific goods were actually for sale and with an indication in US dollars concerning free shipping. In the absence of any indication that the contested marks were used in relation to those goods, and given that prices or currencies are in US dollars, the Board of Appeal correctly found that the evidence adduced was inconclusive for the purposes of establishing use of the contested marks in the European Union for the goods at issue in Class 18.

62 In addition, the Board of Appeal correctly noted that none of the goods at issue in Class 18 appeared to be mentioned in the samples of press articles and press excerpts (Exhibits HH29 and HH37) or other documents submitted such as blog posts by partner companies (Exhibit HH36). Finally, the Board of Appeal also correctly concluded that there was no mention of those goods in either Annexes 1 to 7 attached to the witness statement of 22 February 2024 or the ATHLETA Placement manual (Annex 2).

63 In those circumstances, and having regard to the fact that the evidence in the administrative files did not contain further mention of any of the goods at issue in Class 18, the Board of Appeal correctly found that the limited evidence submitted by the applicant was insufficient to demonstrate that the contested marks had been used to maintain or create a market share for those goods, and that the limited mention of certain goods from Class 18 in the evidence constituted only token use.

The services in Class 35

64 As regards the services in Class 35, the Board of Appeal found, in the contested decisions, that, on the basis of the evidence submitted, the applicant had failed to demonstrate genuine use of the contested marks for ‘retail’ and ‘online store services’ and for ‘promotional services, advertising and marketing services’ for which those marks had been registered.

65 The Board of Appeal observed that the evidence adduced by the applicant did not show that the contested marks had been used for ‘retail’ and ‘online store services’, as there was no reference to the sale of its goods in shops actually falling under the responsibility of the applicant. Indeed, according to the Board of Appeal, the few undated images of shops displaying goods with the contested marks affixed to them did not indicate whether those shops were managed by the applicant in the European Union. Moreover, the Board of Appeal noted that there was no evidence that the applicant conducted actual sales through its website in the European Union. Thus, it concluded that there was no clear evidence demonstrating that the applicant was responsible for bringing together, for the benefit of others, a variety of goods, enabling customers to conveniently view and purchase those goods under the contested marks.

66 As regards ‘promotional services, advertising’, the Board of Appeal found that the applicant’s evidence related solely to marketing its own goods, and did not show that third parties could have recourse to its advertising services.

67 The Board of Appeal thus upheld the Cancellation Division’s revocation of the contested marks for the services at issue in Class 35.

68 With regard to the services at issue in Class 35, it must be observed that the applicant did not, in its applications, put forward any specific arguments contesting the Board of Appeal’s assessment of the evidence of use in that respect, but simply reiterated its general contention that the evidence on file is sufficient to prove use of the contested marks for the retail services at issue.

69 The Court observes that, as the Board of Appeal correctly concluded, the evidence adduced by the applicant was insufficient to prove use of the contested marks for the services at issue in Class 35. As concerns ‘retail’ and ‘online store services’, the evidence submitted did not demonstrate that the applicant managed or provided retail store services under the contested marks, or that the applicant conducted sales through its own websites in the European Union. Consequently, the Board of Appeal correctly noted in paragraph 127 of the first contested decision, and in paragraph 53 of the second contested decision, that it was not possible, on the basis of the evidence before it, to determine whether the applicant had used the contested marks so as to maintain or create a market share for the ‘retail’ and ‘online store services’ in question.

70 In addition, the applicant did not put forward any specific arguments disputing the Board of Appeal’s observation, in paragraph 53 of the second contested decision, that Exhibits HH20 to HH22, which are marked as evidence of online sales in the European Union, did not enable the circumstances in which those sales were concluded and the activity carried out by the applicant in that respect to be determined.

71 Concerning ‘promotional services, advertising’, the Board of Appeal correctly found that the applicant’s evidence related exclusively to the sale of the applicant’s own goods and that such marketing activities could not come under the definition of ‘advertising’ services to which third parties could have recourse (see, to that effect, judgment of 21 May 2025, Airbnb v EUIPO – Airtasker (AIRBNB) , T‑94/24, not published, EU:T:2025:529, paragraph 44). As a result, that evidence was insufficient to establish genuine use of the contested marks for the advertising services at issue.

72 Accordingly, it follows that the Board of Appeal did not make any error of assessment in finding that the applicant had not furnished proof of genuine use of the contested marks in connection with the services in Class 35 referred to in paragraphs 3 and 6 above.

73 Finally, as regards the applicant’s reliance on the case-law recognising that it is, in practice, impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration, it is sufficient to hold that that argument must be rejected for the same reasons as those set out in paragraphs 47 to 49 above. Indeed, as observed in paragraph 33 above, it is settled case-law that, in the context of a claim for revocation of a trade mark, it is incumbent on the trade mark proprietor to adduce solid and objective evidence demonstrating genuine use for each of the distinct categories of goods and services at issue. As correctly observed by EUIPO in its response, the case-law cited in paragraph 34 above cannot be interpreted as justifying an absence of evidence for the categories at issue in considering whether genuine use has been established in relation to those categories.

74 Consequently, the second part of the applicant’s single plea in law in Case T‑800/25 and the single plea in law in Case T‑801/25 must be rejected.

75 In the light of all the foregoing considerations, since the single plea relied on by the applicant in support of its claims is unfounded, the actions must be dismissed in their entirety.

Costs

76 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.

77 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has requested that the applicant be ordered to pay the costs only in the event that a hearing is convened, EUIPO must be ordered to bear its own costs, since no hearing was held.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1. Joins cases T-800/25 and T-801/25 for the purposes of the judgment;

2. Dismisses the actions;

3. Orders Athleta (ITM), Inc. to bear its own costs and to pay those incurred by Sports Group Denmark A/S;

4. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

Delivered in open court in Luxembourg on 30 September 2026.

* Language of the case: English.