Judgment of the General Court (Ninth Chamber) of 16 December 2020 –
Cinkciarz.pl v EUIPO (€$)
(Case T‑665/19)
(EU trade mark – Application for EU figurative mark €$ – Absolute ground for refusal – Lack of distinctiveness – Article 7(1)(b) of Regulation (EU) 2017/1001 – Obligation to state reasons)
1. EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation No 2017/1001 – Scope identical to that of Article 296 TFEU
(Art. 296 TFEU; Regulation of the European Parliament and of the Council 2017/1001, Art. 94(1), first sentence)
(see paras 27, 28)
2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Separate consideration of the pleas in law having regard to every one of the products or services covered by the application for registration – Obligation to state the reasons for refusing to register – Scope
(European Parliament and Council Regulation 2017/1001, Arts 7(1) and 94(1), first sentence)
(see paras 29-33)
3. EU trade mark – Procedural provisions – Examination of the facts of the Office’s own motion – Scope – Obligation to prove matters within common knowledge – No such obligation – Dispute before the General Court
(Art. 256 TFEU; Regulation of the European Parliament and of the Council 2017/1001, Art. 95(1))
(see para. 63)
4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Meaning – Criteria for assessment
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 76, 78)
5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Trade mark made up of several elements – Possible for the competent authority to examine each of the elements making up the trade mark – Need to take account of the overall perception of the combination by the relevant public
(Council Regulation No 207/2009, Art. 7(1)(b))
(see para. 77)
6. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Overlap of the scope of the grounds set out in Article 7(1)(b) and (c) of Regulation No. 207/2009
(Council Regulation No 207/2009, Art. 7(1)(b) and (c))
(see para. 79)
7. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Separate examination of the various grounds for refusal – Interpretation of the grounds for refusal in the light of the public interest underlying each of them
(Council Regulation No 207/2009, Art. 7(1)(b) and (c))
(see para. 80)
8. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Figurative mark €$
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 87-90, 93, 108-111)
9. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Assessment of distinctive character – Absence of elements of assessment other than those resulting from the customs of the sector – Taking into consideration of methods of use liable to be significant in practice
(Council Regulation No 207/2009, Art. 7(1)(b))
(see para. 95)
Re:
| Action brought against the decision of the First Board of Appeal of EUIPO of 4 July 2019 (Case R 1345/2018-1) regarding an application for registration of the figurative sign €$ as an EU trade mark. |
Operative part
The Court:
2. | | Orders Cinkciarz.pl sp. z o.o. to pay the costs. |