Judgment of the General Court (First Chamber) of 1 July 2026.#Driss El Hakmaoui Attilah v European Union Intellectual Property Office.#EU trade mark – Invalidity proceedings – EU figurative mark 4011 B552 – Absolute ground for invalidity – Bad faith – Article 52(1)(b) of Regulation (EC) No 207/2009.#Case T-654/24.

Provisional text

JUDGMENT OF THE GENERAL COURT (First Chamber)

1 July 2026 (*)

( EU trade mark – Invalidity proceedings – EU figurative mark 4011 B552 – Absolute ground for invalidity – Bad faith – Article 52(1)(b) of Regulation (EC) No 207/2009 )

In Case T‑654/24,

Driss El Hakmaoui Attilah, residing in Alicante (Spain), represented by L. Flores Dreosti, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,

defendant,

the other parties to the proceedings before the Board of Appeal of EUIPO, interveners before the General Court, being

Bella Tawziaa II, SLU, established in Marbella (Spain),

Groupe Bellakhdar CO, Sarl, established in Casablanca (Morocco),

represented by A. Sanz Cerralbo, lawyer,

THE GENERAL COURT (First Chamber),

composed of E. Buttigieg, President, M. Kancheva and F. Bestagno (Rapporteur), Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 21 January 2026,

gives the following

Judgment

1        By his action under Article 263 TFEU, the applicant, Mr Driss El Hakmaoui Attilah, seeks the annulment and, in essence, the alteration of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 October 2024 (Case R 403/2024-2) (‘the contested decision’).

 Background to the dispute

2        On 31 January 2022, the interveners, Bella Tawziaa II, SLU and Groupe Bellakhdar CO, Sarl, filed an application for a declaration of invalidity with EUIPO in respect of the EU trade mark which had been registered, under No 11 674 413, following an application filed on 21 March 2013 in respect of the following figurative sign:

3        The goods covered by the contested mark in respect of which a declaration of invalidity was sought were in Class 30 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 to the following description: ‘Coffee, tea, cocoa and artificial coffee; rice; tapioca and sago; flour and preparations made from cereals; bread, pastry and confectionery; ices; sugar, honey, treacle; yeast, baking-powder; salt; mustard; vinegar, sauces (condiments); spices; ice’.

4        The ground relied on in support of the application for a declaration of invalidity was that set out in Article 59(1)(b) 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).

5        In support of their argument alleging bad faith on the part of the applicant, the interveners relied, inter alia, on the following earlier rights (together, ‘the earlier rights’):

–        the international registration designating Germany, Spain, France and Italy regarding the figurative mark, reproduced below, in respect of which registration had been sought by Groupe Bellakhdar on 15 March 2012 and registered under No 1 117 381, designating goods and services in Classes 29, 30, 32 and 43:

–        the international registration designating Germany, Spain, France and Italy in respect of the figurative mark, reproduced below, in respect of which registration had been sought by Groupe Bellakhdar on the same day and registered under No 1 117 382, designating goods and services in Classes 29, 30, 32 and 43:

–        the EU figurative mark reproduced below, registered on 19 September 2012 under No 10 865 038, designating goods and services in Classes 29, 30 and 32:

–        the EU figurative mark reproduced below, registered on 20 March 2013 under No 11 320 694, designating goods and services in Classes 29, 30 and 32:

6        By decision of 21 December 2023, the Cancellation Division upheld the application for a declaration of invalidity on the basis of Article 59(1)(b) of Regulation 2017/1001.

7        On 16 February 2024, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

8        By the contested decision, the Board of Appeal dismissed the applicant’s appeal and upheld the decision of the Cancellation Division on the ground that the interveners had shown that the applicant had acted in bad faith at the time of the application for registration of the contested mark, within the meaning of Article 59(1)(b) of Regulation 2017/1001. In essence, the Board of Appeal found, first of all, that there was still a close business relationship between the applicant and the interveners at the time of the date of application for registration of the contested mark, given that the applicant was the sole director of Bella Tawziaa II. Next, it found that the contested mark had a certain degree of similarity with the earlier rights of the interveners for similar or identical goods. Lastly, it concluded that the applicant had an unfair intention, at the time of the application for registration of the contested mark, given that he was, in fact, seeking to free-ride on the earlier rights of the interveners and to take advantage of their reputation.

 Forms of order sought

9        The applicant claims, in essence, that the Court should:

–        annul and alter the contested decision;

–        order EUIPO to pay the costs.

10      EUIPO contends that the Court should:

–        dismiss the action;

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

11      The interveners contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 The applicable law ratione temporis

12      It should be noted that the application for registration of the contested mark was filed on 21 March 2013.

13      Since the date of filing of the application for registration of the contested mark is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

14      Consequently, in the present case, so far as concerns the substantive rules, the references to Article 59(1)(b) of Regulation 2017/1001 made by the Board of Appeal in the contested decision and by the parties must be understood as referring to Article 52(1)(b) of Regulation No 207/2009, the wording of which is substantively identical.

15      By contrast, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed, in the present case, by the procedural provisions of Regulation 2017/1001, in particular those of Article 72(2) and (5) of that regulation, as well as those 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).

 Admissibility of the documents produced for the first time before the Court

16      EUIPO contends that pages 1 to 3 and 9 to 12 of Annex A.4 and Annexes A.7 to A.11 to the application are inadmissible on the ground that they were produced for the first time before the Court. The interveners also claim that Annexes A.4 to A.11 were all produced for the first time before the Court and are therefore inadmissible.

17      The applicant attached 11 annexes to the application, including Annex A.4, which consists of several extracts from websites containing examples of boxes of tea including lions or other animals; Annexes A.5 and A.6, which list various marks taken from the Register of EU trade marks containing representations of lions and certain marks from that list including their graphic representation; Annex A.7, containing an email, dated 20 September 2012, exchanged between the commercial director of Groupe Bellakhdar and the applicant, to which is annexed an attachment representing the contested mark, reproduced in Annex A.8 and, lastly, Annexes A.9 to A.11, which refer to another email which followed the exchange produced in Annex A.7.

18      According to settled case-law, the purpose of actions before the General Court under Article 72(2) of Regulation 2017/1001 is to obtain a review of the legality of decisions of the Board of Appeal, which must be carried out, pursuant to Article 95 of that regulation, in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 1 February 2005, SPAG v OHIM – Dann and Backer (HOOLIGAN), T‑57/03, EU:T:2005:29, paragraph 17 and the case-law cited). It follows that the Court may not annul or alter a decision against which an action has been brought on grounds which come into existence subsequent to its adoption (judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 55, and of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 53).

19      Therefore, it is not the Court’s function to review the facts in the light of documents adduced for the first time before it. To allow the examination of such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ pleadings may not change the subject matter of the proceedings before the Board of Appeal. Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see judgment of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).

20      First of all, as regards the admissibility of Annexes A.5 and A.6, it must be pointed out that, although they were adduced for the first time before the Court, they should not be disregarded. It is apparent from the case-law that extracts from the Register of EU trade marks are not evidence per se, but relate to EUIPO’s decision-making practice, in as much as they partially explain how that practice is applied. A party has the right to refer to EUIPO’s practice in order to support a plea alleging that the Board of Appeal infringed a provision of Regulation No 207/2009 (see judgment of 29 May 2018, Sata v EUIPO – Zhejiang Rongpeng Air Tools (5000), T‑304/17, not published, EU:T:2018:306, paragraph 20 and the case-law cited).

21      Next, as regards pages 1 to 3 and 9 to 12 of Annex A.4 and Annexes A.7 to A.11 to the application, it must be held, as EUIPO and the interveners have done, that they were adduced for the first time before the Court and cannot be taken into consideration. The abovementioned documents must therefore be disregarded, without it being necessary to assess their probative value (see, to that effect, judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited).

22      Consequently, Annexes A.5 and A.6 are admissible. By contrast, pages 1 to 3 and 9 to 12 of Annex A.4 and Annexes A.7 to A.11 are inadmissible, in so far as they were adduced for the first time before the Court.

 Substance

23      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 52(1)(b) of Regulation No 207/2009. In his view, the Board of Appeal erred in finding that he had acted in bad faith at the time of the application for registration of the contested mark.

24      In the first place, it should be noted that under Article 52(1)(b) of Regulation No 207/2009, an EU trade mark is to be declared invalid on application to EUIPO or on the basis of a counterclaim in infringement proceedings where the applicant was acting in bad faith when he or she filed the application for registration of that trade mark. In the present case, it is therefore the facts which took place up to 21 March 2013, the date on which the contested mark was applied for, that must be taken into consideration in order to define the context of the application for registration of that mark.

25      That being said, it is apparent from the case-law that it is possible to take into account circumstances arising after the application for registration of the contested mark had been filed, provided that those circumstances are such as to clarify for EUIPO the intentions of the proprietor of that mark at the time of filing (judgment of 19 June 2025, CeramTec, C‑17/24, EU:C:2025:455, paragraph 71; see, also, judgment of 23 May 2019, Holzer y Cia v EUIPO – Annco (ANN TAYLOR and AT ANN TAYLOR), T‑3/18 and T‑4/18, EU:T:2019:357, paragraph 126 and the case-law cited).

26      In that regard, it should be noted that the concept of ‘bad faith’ referred to in Article 52(1)(b) of Regulation No 207/2009 is not defined, delimited or even described in any way in the legislation (see judgment of 29 June 2017, Cipriani v EUIPO – Hotel Cipriani (CIPRIANI), T‑343/14, EU:T:2017:458, paragraph 25 and the case-law cited). Nevertheless, it must be observed that the Court of Justice and the General Court have provided some clarification regarding the way in which the concept of ‘bad faith’ should be interpreted and the existence of that concept should be assessed.

27      Accordingly, the Court of Justice has stated that in addition to the fact that, in accordance with its usual meaning in everyday language, the concept of ‘bad faith’ presupposes the presence of a dishonest state of mind or intention, regard must be had, for the purposes of interpreting that concept, to the specific context of trade mark law, which is that of the course of trade. In that regard, the EU trade mark rules are aimed, in particular, at contributing to the system of undistorted competition in the European Union, in which each undertaking must, in order to attract and retain customers by the quality of its goods or services, be able to have registered as trade marks signs which enable the consumer, without any possibility of confusion, to distinguish those goods or services from others which have a different origin (see judgments of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 45, and of 29 January 2020, Sky and Others, C‑371/18, EU:C:2020:45, paragraph 74 and the case-law cited).

28      Consequently, the absolute ground for invalidity referred to in Article 52(1)(b) of Regulation No 207/2009 applies where it is apparent from relevant and consistent evidence that the proprietor of an EU trade mark has filed the application for registration of that mark not with the aim of engaging fairly in competition but with the intention of undermining, in a manner inconsistent with honest practices, the interests of third parties, or with the intention of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark, in particular the essential function of indicating origin (see judgment of 29 January 2020, Sky and Others, C‑371/18, EU:C:2020:45, paragraph 75 and the case-law cited).

29      In the second place, the intention of an applicant for a trade mark is a subjective factor which must, however, be determined objectively by the competent administrative or judicial authorities. Consequently, any claim of bad faith must be the subject of an overall assessment, taking into account all the factual circumstances relevant to the particular case. It is only in that manner that a claim of bad faith can be assessed objectively (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 47 and the case-law cited).

30      To that end, it is appropriate to take into consideration, in particular: (i) the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product or service capable of being confused with the sign for which registration is sought; (ii) the applicant’s intention to prevent that third party from continuing to use such a sign; and (iii) the degree of legal protection enjoyed by the third party’s sign and by the sign for which registration is sought (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 53).

31      Other factors can be taken into account in order to decide whether an applicant for registration was acting in bad faith when the trade mark application was filed (see, to that effect, judgment of 6 November 2024, ChiCom Marketing v EUIPO – China Faw Group (Hongqi), T‑533/23, not published, EU:T:2024:786, paragraph 21 and the case-law cited), such as the existence of direct contractual relations between the parties (see judgment of 12 July 2019, Café del Mar and Others v EUIPO – Guiral Broto (Café del Mar), T‑772/17, not published, EU:T:2019:538, paragraph 34 and the case-law cited), irrespective of the exact nature of the agreements concluded (see judgment of 5 October 2016. Foodcare v EUIPO – Michalczewski (T.G.R. ENERGY DRINK), T‑456/15, EU:T:2016:597, paragraph 55 and the case-law cited).

32      That being said, it is apparent from the wording used by the Court of Justice in the judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:361), that the factors listed in it are only examples drawn from a number of factors which can be taken into account in order to decide whether an applicant for registration was acting in bad faith at the time when the trade mark application was filed (judgments of 14 February 2012, Peeters Landbouwmachines v OHIM – Fors MW (BIGAB), T‑33/11, EU:T:2012:77, paragraph 20, and of 26 February 2015, Pangyrus v OHIM – RSVP Design (COLOURBLIND), T‑257/11, not published, EU:T:2015:115, paragraph 67).

33      Furthermore, in the context of the overall analysis undertaken pursuant to Article 52(1)(b) of Regulation No 207/2009, account may also be taken of the origin of the sign at issue and its use since its creation, the commercial logic underlying the filing of the application for registration of that sign as an EU trade mark, and the chronology of events leading up to that filing (see judgment of 7 July 2016, Copernicus-Trademarks v EUIPO – Maquet (LUCEO), T‑82/14, EU:T:2016:396, paragraph 32 and the case-law cited).

34      Similarly, it is possible to take into account the extent of the reputation enjoyed by the sign at issue at the time its registration was sought (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 51), including where that sign has previously been registered or used by a third party as a mark (see, to that effect, judgment of 8 May 2014, Simca Europe v OHIM – PSA Peugeot Citroën (Simca), T‑327/12, EU:T:2014:240, paragraph 40). The fact that the use of a sign for which registration is sought would enable the applicant to take unfair advantage of the reputation of an earlier trade mark or sign or of the name of a famous person is such as to establish bad faith on the part of the applicant (judgment of 6 July 2022, Zdút v EUIPO – Nehera and Others (nehera), T‑250/21, EU:T:2022:430, paragraph 32).

35      In the third place, it should be borne in mind that it is for the applicant for a declaration of invalidity to prove the circumstances that substantiate a finding that an EU trade mark proprietor was acting in bad faith when it filed the application for registration of that mark, good faith being presumed until proven otherwise (judgment of 6 July 2022, nehera, T‑250/21, EU:T:2022:430, paragraph 34 and the case-law cited).

36      Where EUIPO finds that the objective circumstances of the particular case which were relied on by the applicant for a declaration of invalidity may lead to the rebuttal of the presumption of good faith which the proprietor of the mark at issue enjoys when he or she files the application for registration of that mark, it is for the proprietor of that mark to provide plausible explanations regarding the objectives and commercial logic pursued by the application for registration of that mark (judgments of 23 May 2019, ANN TAYLOR and AT ANN TAYLOR, T‑3/18 and T‑4/18, EU:T:2019:357, paragraph 36, and of 21 April 2021, Hasbro v EUIPO – Kreativni Dogadaji (MONOPOLY), T‑663/19, EU:T:2021:211, paragraph 43).

37      It is in the light of the foregoing considerations that the legality of the contested decision should be assessed, in that the Board of Appeal found that the applicant was acting in bad faith when he filed the application for registration of the contested mark.

 The relationship between the applicant and the interveners at the time of the application for registration of the contested mark

38      The applicant claims that the Board of Appeal erred as regards the nature of the relationship between the parties at the time of filing the application for registration. In his view, the Spanish company Bella Tawziaa II is an undertaking independent of Groupe Bellakhdar, a Moroccan company with which it has had a specific commercial relationship for the distribution of teas, without that requiring it to submit to that company all its commercial decisions, since that specific relationship involves nothing other than the fact that they were aware of one another.

39      EUIPO and the interveners dispute the applicant’s arguments.

40      The Board of Appeal found that there was already a close business relationship between the parties at the time of the application for registration of the contested mark, with the result that the applicant was necessarily aware of the use of the earlier rights. In fact, it notes that the applicant had set up the Spanish company Grand Lion 4011, SL, on 29 March 2012, before initiating discussions with a person connected to Groupe Bellakhdar a few months later, with a view to creating a partnership with Groupe Bellakhdar. In that context, the company name was changed on 4 September 2012 to Bella Tawziaa II, and, on 23 October 2012, its capital was increased, resulting in the entry of that person connected to Groupe Bellakhdar as a partner and the loss of the company’s single-member status. In addition, the Board of Appeal states that the applicant explains that he incurred all the costs of incorporating and running his company, including those relating to the application for registration of several marks prior to the registration of the contested mark.

41      In the present case, by way of factual background, the following chronological elements should be noted. First, on 29 March 2012, Grand Lion 4011 was established, the applicant being the sole member and administrator. Second, on 4 September 2012, that company was renamed Bella Tawziaa II and, third, on 18 January 2016, the transfer of ownership of the contested mark to the applicant was entered in the EUIPO register.

42      The existence of direct contractual relations between the parties, irrespective of the exact nature of the agreements concluded between them, is one of the factors which makes it possible to establish whether there was bad faith on the part of the proprietor of the contested mark when filing the application for registration.

43      In that regard, first of all, it must be pointed out, as observed by EUIPO and the interveners, that the Board of Appeal was right to find that it was apparent from all the evidence submitted in the context of the application for a declaration of invalidity that there was, at the time of filing the contested mark, namely 21 March 2013, a commercial relationship between the parties.

44      Next, contrary to what the applicant claims, the Board of Appeal did not find that Bella Tawziaa II was a subsidiary of Groupe Bellakhdar, but that Bella Tawziaa II had been established with the aim of ensuring a partnership between the two companies (see paragraphs 47 to 50 of the contested decision). As is apparent from the contested decision, it was the applicant who established Grand Lion 4011 on 29 March 2012, and discussions were initiated a few months later with the person connected to Groupe Bellakhdar with the intention of establishing a partnership between the two companies. In that context, the name of the company was subsequently changed on 4 September 2012 to Bella Tawziaa II and, on 23 October 2012, the capital was increased with the entry of the person connected to Groupe Bellakhdar as a partner alongside the applicant.

45      Lastly, it must therefore be held that the Board of Appeal took account of the commercial relationship between the applicant and Groupe Bellakhdar at the time of the application for registration of the contested mark and that it is indeed, as the Board of Appeal correctly found, a circumstance which indicates that the applicant was aware of the use of the earlier rights at the time of that application for registration. Therefore, the factor relating to the existence of a contractual relationship prior to the application for registration of the contested mark, which makes it possible to assess bad faith on the part of the applicant, must be regarded as established.

 The similarity between the contested mark and the earlier rights

46      The applicant claims that the Board of Appeal made an error of assessment in finding that there were significant similarities between the contested mark and the earlier rights. In his view, the fact that the marks at issue incorporate the representation of the same animal, namely the lion, is not sufficient to conclude that there is a similarity between the contested mark and the earlier rights. He maintains that it is common to use figures of animals, and more specifically lions, on boxes of tea, as is proved by Annexes A.4 to A.6 to the application, which consist essentially of representations of several boxes of tea on which animals or lions appear and which coexist on the market.

47      EUIPO and the interveners dispute the applicant’s arguments.

48      The Board of Appeal found, first of all, that, at the time of the application for registration of the contested mark, several earlier rights had been registered by Groupe Bellakhdar or Bella Tawziaa II, covering similar goods in Classes 29, 30, 32 and 43. Next, it found that those earlier rights had significant similarities with the contested mark, in particular because of the presence of the common elements consisting of the numbers or codes ‘4011’ and ‘B552’, the presentation of the goods in similar packaging and the presence of Arabic or oriental word elements and representations of lions. Furthermore, it stated that the similarity between the signs at issue resulted primarily from the common reference to the concept and figure of the lion, a distinctive and dominant element unrelated to the goods concerned. Lastly, the Board of Appeal noted that, both for the word elements meaning ‘lion’ and for the figurative representations of that animal, there were obvious overlaps between the marks, making it inevitable that a certain degree of similarity be found. In addition, the Board of Appeal added that, if part of the relevant public could perceive Arabic characters as a mere figurative element, Arabic-speaking consumers present in the European Union would immediately understand their meaning.

49      First of all, it must be held, as the Board of Appeal correctly pointed out, that, in the context of the assessment of bad faith within the meaning of Article 52(1)(b) of Regulation No 207/2009, it is not a question of establishing a specific degree of similarity between the marks at issue from the point of view of consumers, as is the case in the context of the application of Article 8(1)(b) of Regulation No 207/2009, but of understanding the applicant’s intention at the time of filing the application for registration of the contested mark.

50      Next, it should be noted, as observed by EUIPO and the interveners, that the contested mark is similar to the interveners’ earlier rights. Accordingly, the elements ‘4011’ and ‘B552’ which appear in the marks to be compared must be considered as identical as regards their graphic representation, their position of being one above the other and their reference to the same concept. As regards the applicant’s argument concerning their descriptive character, even if it is possible that a non-negligible part of the relevant public perceives the number ‘4011’ and the alphanumeric element ‘B552’ of the signs at issue as descriptive indications of the quality of tea, the fact remains that a substantial part of that public would perceive those elements only as a letter and numbers (see, to that effect, judgment of 30 April 2025, Laura Food v EUIPO – Morghati Abderrahim (THE VERT DE CHINE 4011 ALJAMAL 4011 B 552), T‑95/24, not published, EU:T:2025:418, paragraph 49).

51      Lastly, it must be held, as did EUIPO and the interveners, that the marks at issue are similar because of the concept of the lion which they have in common. Whether by the use of images representing the animal as such or by the word elements in Arabic, the reference to the lion is strongly present in the marks to be compared and necessarily implies a certain level of similarity between them. In that connection, as regards Arabic-speaking consumers in the European Union, it should be noted that, even though the goods in question are not necessarily aimed at those consumers, it cannot be ruled out that that community is part of the relevant public (see, to that effect, judgment of 10 July 2024, Laura Food v EUIPO – Bella Tawziaa II (Thé Vert de Chine AL ASSAD HBOUB R3505 Chaara 4011), T‑541/23, not published, EU:T:2024:457, paragraph 32). Therefore, it must be held that, as the Board of Appeal correctly found, part of the public of the European Union will understand and attribute a meaning to the Arabic elements present in the signs at issue, whereas the graphic representations of lions will be understood by the entire public of the European Union. In addition, as regards the applicant’s argument that lions regularly appear on boxes of tea, although Annexes A.5 and A.6 are admissible in so far as they relate to EUIPO’s decision-making practice, they have only a limited scope for the purposes of assessing the distinctive character of the concept and the representation of a lion in the tea sector. The mere identification of EU trade marks containing a lion does not make it possible to establish that those marks have been or are actually used on the market and a fortiori to demonstrate that that element is commonly used in the sector concerned and that the relevant public is accustomed to perceiving it as a commonplace pattern.

52      That assessment is not called into question by the applicant’s argument, raised at the hearing and based on paragraph 79 of the judgment of 10 July 2024, Thé Vert de Chine AL ASSAD HBOUB R3505 Chaara 4011 (T‑541/23, not published, EU:T:2024:457), that the General Court found that, for EU trade mark No 013 237 268, which is one of the earlier marks in the present case, it was unlikely that the relevant public at which the product ‘tea’ is aimed would perceive the concept of a lion in that mark. In that regard, it should be noted that paragraph 79 of that judgment was formulated in the particular context of the mark at issue in that case. In that judgment, the Court noted that, in that mark as it had been registered, the representation of the lions was difficult to perceive because of its small size and that the word elements ‘grand lion’ and the Arabic word ‘لسبعا’, meaning ‘lion’, were not likely to be understood without difficulty by the relevant public. In those specific circumstances, the Court considered that it was unlikely that the relevant public would perceive the earlier mark as referring to the concept of a lion. However, the case which gave rise to the judgment relied on by the applicant concerned opposition proceedings based on Article 8(1) of Regulation No 207/2009. It should be borne in mind that, in the present case, it is not a question of establishing a specific degree of similarity between the marks at issue from the point of view of consumers, as is the case in the context of the application of that provision, but of understanding the applicant’s intention at the time of filing the application for registration of the contested mark (see paragraph 49 above). Accordingly, the assessment in paragraph 79 of the judgment relied on by the applicant, which relates to the specific circumstances of the case which gave rise to that judgment, which was made in the context of opposition proceedings based on Article 8(1)(b) of Regulation No 207/2009, cannot be transposed to the present case.

53      Accordingly, the factor relating to knowledge of the fact that a third party was using an identical or similar sign in at least one Member State of the European Union, which must be taken into account in order to assess the applicant’s bad faith, must be regarded as established.

 The existence of an unfair intention on the part of the applicant

54      The applicant claims that the Board of Appeal made an error of assessment in finding an unfair intention on his part at the time of the application for registration of the contested mark. First, he maintains that he had informed Groupe Bellakhdar of his intention to file the contested mark, as demonstrated by Annexes A.7 to A.11 to the application, in which two emails of the same day and related screenshots, exchanged between the commercial director of Groupe Bellakhdar and himself, to which a representation of the contested mark was annexed, were attached. Second, he claims that there was still a relationship between Bella Tawziaa II and Groupe Bellakhdar after the date of the application for registration of the contested mark. In that regard, he submits, on the one hand, that, on 9 September 2014, Bella Tawziaa II filed a trade mark corresponding to a mark of Groupe Bellakhdar and, on the other hand, that if he had wished to take advantage of that mark, he would not have pursued the relationship with that undertaking and that mark would not have been registered. Third, he claims, on the one hand, that the alleged reputation in Morocco of the earlier rights before the date of filing of the application for registration of the contested mark has not been proved and, on the other hand, that it cannot be concluded that there was an intention to take advantage of such a reputation, since that reputation did not exist at the time of the application for registration of the contested mark.

55      Lastly, the applicant claims that, by adopting Article 52(1)(b) of Regulation No 207/2009, the EU legislature did not intend to refer to situations, as in the present case, in which the applicant for registration of an EU trade mark then files an application for a declaration of invalidity of that mark alleging bad faith.

56      EUIPO and the interveners dispute the applicant’s arguments.

57      First of all, the Board of Appeal noted that the application for registration of the contested mark had been filed not in the name of the applicant, but in the name of Bella Tawziaa II, the former of which performed the duties of director at the time of that registration.

58      Next, the Board of Appeal considered that, having regard to the chronology of events and the conditions for filing the earlier rights, it was plausible that Bella Tawziaa II had initially sought to ensure ‘peaceful exploitation’ of Groupe Bellakhdar’s trade marks on the European market. However, the Board of Appeal noted that, unlike the filing of the applications for registration of trade marks previously made with Groupe Bellakhdar’s agreement, the registration of the contested mark had been undertaken without Groupe Bellakhdar’s consent. Furthermore, it observed that the applicant knew or, at the very least, should have known that the distinctive value and reputation of the earlier rights were based on the figure and concept of the lion. Consequently, the Board of Appeal found that the proprietor had sought to register an alternative mark capable of being associated with the earlier rights of its business partners, namely the interveners, with the aim of taking advantage of those rights and of benefiting from the reputation acquired by them in the tea sector, as was demonstrated by the evidence adduced by the interveners.

59      Lastly, the Board of Appeal found that certain events subsequent to the application for registration of the contested mark could be taken into account in order to assess the applicant’s intention at the time of that application. In particular, it noted that, on 28 December 2015, the contested mark had been fully divested at the request of the applicant himself, acting under a general power of attorney, which had led to the transfer of ownership of the contested mark from Bella Tawziaa II in his favour. The applicant justified that divestment by the desire to recover part of the investment made and to continue his business, while acknowledging that the mark at issue had no connection with the earlier rights already exploited by Groupe Bellakhdar.

60      In the first place, as regards the applicant’s argument that the EU legislature did not in any circumstances intend to refer to a situation in which the legal person which has filed an application for registration of an EU trade mark may then bring proceedings for a declaration of invalidity of that mark, it should be noted that the situation at issue in the present case raises the question whether a natural person who has registered a mark on behalf of and in the name of a legal person of which he or she was then the principal administrator may be regarded as having acted in bad faith at the time of filing. However, as the Board of Appeal pointed out, the fact that the legal person in whose name the mark was filed subsequently becomes an applicant for a declaration of invalidity is not such as to preclude the application of Article 52(1)(b) of Regulation No 207/2009, since that provision is intended to protect the public interest and may be relied on by any natural or legal person.

61      As the concept of ‘bad faith’ referred to in Article 52(1)(b) of Regulation No 207/2009 was not defined by the EU legislature (see paragraph 26 above), there is nothing to prevent that concept from applying where it is apparent from relevant and consistent evidence that the proprietor of the contested mark acted with an unfair intention at the time of filing the application for registration. In that regard, the fact that the applicant filed the contested mark in the name of a company of which he was then the principal director and that that company, under another director and after the applicant’s departure, subsequently filed an application for a declaration of invalidity of that mark has no bearing on the intention pursued by the applicant at the time of filing the application for registration.

62      In the second place, it must be stated that it has already been established in paragraphs 43 to 45 above that the applicant and the interveners, in particular Groupe Bellakhdar, had a commercial and contractual relationship before and at the time of filing the contested mark, the applicant being associated with Bella Tawziaa II, with the result that there was a relationship of trust between those parties. In those circumstances, the fact that the contested mark was filed for identical goods, namely tea, without informing Groupe Bellakhdar, is capable of constituting a breach of honest practices in commercial relations.

63      The evidence adduced by the applicant as an annex to the application cannot call that assessment into question. As analysed in paragraphs 18 to 22 above, Annexes A.7 to A.11 to the application must be declared inadmissible.

64      Accordingly, the Board of Appeal was correct to take account of the fact that the applicant, in his capacity as director of Bella Tawziaa II, which was then connected to Groupe Bellakhdar, had not informed Groupe Bellakhdar of his intention to file the contested mark. In the light of the foregoing considerations, it is not apparent from any evidence that the applicant communicated that intention to Groupe Bellakhdar.

65      In the third place, the Court notes that, unlike Article 53 of Regulation No 207/2009, which lists the relative grounds for invalidity of an EU trade mark and thus seeks to protect the private interests of the holders of certain prior rights which conflict with the mark at issue, Article 52(1) of that regulation, which provides, in particular, that the applicant’s bad faith when filing a trade mark application constitutes a ground for absolute invalidity, is intended to protect the public interest and may be relied on by any natural or legal person and not only by holders of prior rights. Consequently, while the reputation of an earlier sign may, depending on the circumstances of the case, constitute a relevant factor for the assessment of bad faith, the applicant for a declaration of invalidity who relies upon that ground cannot be required systematically to establish such a reputation (see, to that effect, judgment of 21 February 2024, Dendiki v EUIPO – D-Market (hepsiburada), T‑172/23, not published, EU:T:2024:105, paragraph 38 and the case-law cited).

66      Furthermore, it should be noted that, according to the case-law cited in paragraph 25 above, it is possible to take account of facts subsequent to the application for registration of the contested mark, which may also be capable of confirming the applicant’s dishonest intention at the date of the application for registration.

67      In the present case, on the one hand, as stated in paragraph 71 of the contested decision, it is apparent from the documents submitted by the interveners during the administrative procedure before EUIPO that a certain degree of reputation or renown of the earlier rights existed in Morocco for tea products. The interveners submitted photographs, press files, banners and catalogues showing, inter alia, that two of the earlier rights were used from 2012 to 2017 mainly in Morocco. As EUIPO points out, a substantial part of that evidence relates to a period prior to the application for the contested mark, but account may also be taken of evidence subsequent to that application, in so far as it enables conclusions to be drawn as to the situation existing on the date of that application.

68      Therefore, even if the interveners were not required to establish the reputation of their earlier marks, that reputation in Morocco may be taken into consideration for the purposes of assessing bad faith. By contrast, the absence of such a reputation in the European Union is not relevant to that assessment (see, to that effect, judgment of 21 February 2024, hepsiburada, T‑172/23, not published, EU:T:2024:105, paragraph 40 and the case-law cited).

69      On the other hand, it should be noted that, in the present case, as EUIPO and the interveners have correctly pointed out, account must be taken of the fact that, first, the applicant appointed his sister as the sole director of Bella Tawziaa II after transferring his share to her on 25 March 2014, then she granted him a general power of attorney under which he acted as authorised representative, second, the applicant obtained, on 19 May 2015, the registration in his favour of the assignment of three EU trade marks of which Bella Tawziaa II was the proprietor, third, on 23 November 2015, he assigned those marks to a third party and, fourth, on 28 December 2015, he requested the complete assignment to him of the contested mark.

70      Those factors constitute facts subsequent to the application for registration which make it possible to find, as did the Board of Appeal, that the applicant applied for registration of the contested mark with the aim of appropriating it subsequently, in order to recover alleged investments. That mark was assigned to the applicant by himself, acting as an authorised representative under a general power of attorney granted to him by his sister, to whom he had, on 25 March 2014, transferred his shares in Bella Tawziaa II (see paragraph 69 above).

71      Lastly, as has been stated in paragraph 51 above, the marks at issue are similar because of the concept of the lion which they have in common. However, in the light of the applicant’s knowledge of the interveners’ earlier rights, that resemblance cannot be simply a mere coincidence (see, to that effect, judgment of 23 October 2024, İlbay v EUIPO – Pella-eu (PELLA), T‑514/23, not published, EU:T:2024:727, paragraph 31). As the Board of Appeal correctly pointed out in the contested decision, even if the applicant was not obliged to market solely Groupe Bellakhdar’s goods, that did not give him authority to apply for marks containing elements likely to be associated with that intervener’s trade marks. In that regard, as the Board of Appeal correctly pointed out, the applicant could have applied for registration of a trade mark associated with or representing any other animal. However, he chose a mark which represented a lion, the only animal with which Groupe Bellakhdar’s trade marks were associated, and which even reproduced the Arabic word elements of the interveners’ earlier rights.

72      Consequently, in the light of all the circumstances of the case, the Board of Appeal was correct to conclude that, at the time of filing the application for registration of the contested mark, the applicant was acting in bad faith within the meaning of Article 52(1)(b) of Regulation No 207/2009.

73      It follows that the single plea in law relied on by the applicant must be rejected and, consequently, the action must be dismissed in its entirety.

 Costs

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

75      Since a hearing has taken place and the applicant has been unsuccessful, he must be ordered to pay the costs incurred before the Court, in accordance with the forms of order sought by EUIPO and the interveners.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Driss El Hakmaoui Attilah to pay the costs.

Delivered in open court in Luxembourg on 1 July 2026.

[Signatures]

---

*      Language of the case: Spanish.