In un vecchio post avevo dato conto della vittoria di una catena irlandese di supermercati contro il colosso Mc Donalds sul marchio Big Mac
Ora è stata emessa la deicsione giudiziale dal Trib. UE, dopo le contrastanti decisioni amministrative: Trib. UE 5 giugno 2024 , T-58/23, Supermac’s (Holdings) Ltd, c. EUIPO e McDonald’s International Property Co. Ltd,
Il Trib. annulla in parte la decisione sul reclamo amministrativo (che aveva dato torto ai Supermercati, riformando quella di primo grado) : v. spec. § 1.b (‘chicken sandwiches’) dove anche screenshots.
<<40 That evidence, which amounts to printouts of advertising posters, screenshots of a television advertisement which was broadcast in France in 2016 and screenshots from the Facebook account of McDonald’s France in 2016, does not make it possible to ascertain in what quantities, or with what regularity and recurrence, the goods concerned were distributed. That evidence cannot therefore on its own suffice to establish that the commercial use of the contested mark in connection with ‘chicken sandwiches’ was real.
41 Furthermore, contrary to what EUIPO and the intervener claim in their written pleadings, those documents do not contain any indication as regards the prices at which those goods were marketed.
42 Likewise, the affidavit of one of the intervener’s employees (Annex 17 of EUIPO’s case file) does not contain any specific information regarding the sales figures achieved by the contested mark with regard to ‘chicken sandwiches’. The data submitted are merely raw data, which are not broken down in relation to the goods, regarding the sales of ‘Big Mac’ in France between 2013 and 2017.
43 Lastly, although it is true, as the intervener states in its written pleadings, that one of the specific features of the fast-food sector is to offer goods which are not always available, but which recur with a certain regularity, the documents taken into account by the Board of Appeal do not, however, serve to prove that there was genuine use of the contested mark in connection with ‘chicken sandwiches’, in accordance with the case-law referred to in paragraph 25 above. Those documents show with certainty only that there was insignificant use of the contested mark in connection with ‘chicken sandwiches’ with regard to 2016, as is apparent from the screenshots produced (Annexes 10d and 12c of EUIPO’s case file).
44 First, the date on which the advertising posters and menu boards submitted (Annex 2 of EUIPO’s case file) were disseminated to the public or the date on which the goods at issue were marketed is not clear from those posters and boards. Consequently, those documents, which, moreover, appear to be drafts in view of the word ‘confidential’ in them, do not contain, with the exception of the words ‘limited duration’, any information regarding their dissemination or the marketing of the goods in question to the public. The words ‘November/December 2015’ and ‘September – November 2016’, which have been added by hand and are located outside the frame of the advertising posters, cannot, in the light of their handwritten nature and location, constitute a reliable and definite indication regarding the date on which they were disseminated to the public or regarding the date on which the goods were marketed.
45 Secondly, contrary to what the intervener claims in its written pleadings, the screenshots from the Facebook account of McDonald’s France in connection with the goods concerned relate only to the year 2016 (29 September and 8 October). The screenshot bearing the date of 28 December 2015 concerns only the ‘meat sandwich’.
46 Thirdly, it is true that the Google analytics report relating to the data regarding access to the intervener’s websites which was submitted before the Board of Appeal (Annex 15b of EUIPO’s case file) does indeed contain two entries which concern the ‘grand Big Mac chicken’. However, those data are not broken down by year, but relate to the period from 1 April 2012 to 1 April 2017, with the result that they do not serve to establish precisely and with certainty the frequency and regularity with which the contested mark was used in connection with ‘chicken sandwiches’. In any event, that document does not bear out the existence of use of the contested mark in connection with ‘chicken sandwiches’ with regard to 2015. That document appears only to show a slight peak in use of the contested mark with regard to the end of 2013 and with regard to 2016.
47 It follows from all of the foregoing that the Board of Appeal erred in finding that the evidence provided by the intervener was sufficient to prove genuine use of the contested mark in connection with ‘chicken sandwiches’ in France from 2015 to 2016>>.