Language of document : ECLI:EU:T:2017:253

Provisional text

JUDGMENT OF THE GENERAL COURT (Third Chamber)

5 April 2017 (*)

(EU trade mark — Application for an EU figurative mark representing two lines forming an acute angle — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

In Case T‑291/16,

Anta (China) Co. Ltd, established in Jinjiang City (China), represented by A. Franke and K. Hammerstingl, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by L. Rampini, acting as Agent,

defendant,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 9 March 2016 (Case R 1292/2015-5) concerning an application for registration of a figurative sign representing two lines forming an acute angle as an EU trade mark,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, V. Kreuschitz and N. Półtorak (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 3 June 2016,

having regard to the response lodged at the Court Registry on 26 August 2016,

having regard to the fact that no request for a hearing was submitted by the main 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

 Background to the dispute

1        On 17 December 2014, the applicant, Anta (China) Co. Ltd, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

2        The mark in respect of which registration was sought is the following figurative sign:

Image not found

3        The goods in respect of which registration was sought are in classes 18, 25 and 28 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 correspond to the following description:

–        Class 18: ‘Leather and imitations of leather; animal skins and furs; travelling bags, handbags; school bags, backpacks; briefcases, attaché cases; wallets; key cases (leatherwear); bags (envelopes and pouches) from leather for packaging; travelling sets (suitcases) made from leather; vanity cases (not fitted); sling bags for carrying infants; leatheroid boxes, included in class 18; canvas boxes, included in class 18; suitcase handles; cases of leather or leather board included in class 18; bags (net-) for shopping; umbrellas, parasols and walking sticks; saddlery, whips, harnesses; guts for making sausages.’

–        Class 25: ‘Clothing; footwear; headgear; fittings of metal for shoes; studs for football shoes; heelpieces for shoes; paper hats; paper clothing; ear muffs (clothing); footmuffs, not electrically heated; gloves (clothing); muffs (clothing); belts (clothing), money belts (clothing), leather belts (clothing), collar protectors; shirt fronts; readymade linings (part of clothing); shirt yokes, cuffs (clothing); dress shields; layette (clothing); wedding gowns, included in class 25.’

–        Class 28: ‘Games, playthings; gymnastic and sporting articles, included in this class; golf bags, with or without wheels; ball and racket bags for sports purposes; adapted bags especially designed for skis and surfboards; punching bags (practice bags); boxing gloves; decorations for Christmas trees.’

4        By decision of 8 May 2015, the examiner rejected the application for registration of the EU trade mark for all the goods concerned, pursuant to Article 7(1)(b) of Regulation No 207/2009.

5        On 2 July 2015, the applicant filed a notice of appeal with EUIPO against the decision of 8 May 2015, pursuant to Articles 58 to 64 of Regulation No 207/2009.

6        By decision of 9 March 2016 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal.

7        Firstly, the Board of Appeal stated that the goods concerned, which are common consumer items, attracted a level of attention varying from average to higher than average on the part of the relevant public, the average EU consumer. It nevertheless held that the consumers of those goods could not be considered more than reasonably well informed and reasonably observant and circumspect. They could not be presumed to be particularly critical in their analysis of the goods purchased or to place importance on the reputation associated with the goods concerned in the market at issue.

8        Secondly, the Board of Appeal, aligning itself with the examiner’s findings, took the view that the overall impression of the sign at issue was that of a very simple, non‑distinctive, figurative element. That sign was, in fact, the representation of two intersecting lines and was incapable of conveying a message allowing consumers to perceive it as a trade mark, unless it had acquired distinctiveness through use. Failing any specific feature or other distinctive elements, the relevant public would perceive the sign at issue as an ordinary decorative element. The Board of Appeal thus found that the sign at issue was not capable of attracting the attention of the relevant public so that, faced subsequently with the goods concerned, they would be likely to remember it and attribute it to a particular undertaking.

9        Thirdly, the Board of Appeal recalled, as regards the registrations of the mark applied for already made in other countries, that those registrations had no binding effect and conferred no right to register a trade mark.

10      Fourthly, the Board of Appeal observed, as regards the registrations of other EU trade marks relied on by the applicant, that they were different from the sign at issue. Moreover, observance of the principle of equal treatment had to be reconciled with observance of the principle of legality according to which no person may rely, in support of its claim, on unlawful acts committed in favour of another and which requires that, in all instances, the necessary decision be made if the legal requirements in respect thereof have been met.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

12      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      The applicant raises a single plea in law, alleging infringement of Article 7(1)(b) of Regulation No 207/2009. It claims, in essence, that the Board of Appeal failed to assess correctly, first of all, the relevant public, next, the overall impression created by the mark applied for and, finally, the decisions of the Boards of Appeal of EUIPO and the earlier registrations concerning similar EU trade marks and the registrations of the mark applied for already made in other countries on which it relied.

14      As a preliminary point, it should be recalled that, under Article 7(1)(b) of Regulation No 207/2009, trade marks which are devoid of any distinctive character may not be registered.

15      According to settled case-law, the marks referred to in Article 7(1)(b) of Regulation No 207/2009 are those which are regarded as incapable of performing the essential function of a trade mark, namely, that of identifying the commercial origin of the goods or services at issue, thus enabling the consumer who acquired them to make the same choice, when making a subsequent acquisition, if the experience has proved positive, or to make another choice, if it has proved negative (judgments of 29 September 2009, The Smiley Company v OHIM (Representation of half a smiley smile), T‑139/08, EU:T:2009:364, paragraph 14, and of 6 November 2014, Vans v OHIM (Representation of a wavy line), T‑53/13, EU:T:2014:932, paragraph 66 (not published)).

16      In accordance with the case-law, the distinctive character of a mark must be assessed, first, by reference to the goods in respect of which registration has been sought and, secondly, by reference to its perception by the relevant public, which consists of average consumers of those goods (judgments of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 15, and of 6 November 2014, Representation of a wavy line, T‑53/13, EU:T:2014:932, paragraph 67 (not published)).

17      A minimum degree of distinctive character is sufficient to render the absolute ground for refusal set out in Article 7(1)(b) of Regulation No 207/2009 inapplicable (judgments of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 16, and of 6 November 2014, Representation of a wavy line, T‑53/13, EU:T:2014:932, paragraph 68 (not published)).

18      It is in the light of these considerations that the applicant’s argument that the mark applied for has distinctive character must be examined.

 The relevant public

19      In order to determine whether a sign presents a characteristic such as to render it registrable as a trade mark, it is appropriate to take the viewpoint of the relevant public. Where the goods with which the registration application is concerned are intended for all consumers, the relevant public must be deemed to be composed of the average consumer, reasonably well informed and reasonably observant and circumspect (judgment of 16 September 2004, SAT.1 v OHIM, C‑329/02 P, EU:C:2004:532, paragraph 24; see also, to that effect, judgment of 6 May 2003, Libertel, C‑104/01, EU:C:2003:244, paragraph 46).

20      The way in which the relevant public perceives a trade mark is influenced by the average consumer’s level of attention, which is likely to vary according to the category of goods in question (see judgment of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 18 and the case-law cited).

21      In the present case, the goods concerned consist, in essence, of leather, various leatherware and luggage goods in Class 18, clothing, footwear and clothing accessories in Class 25 and games, playthings and sporting articles in Class 28. In paragraph 13 of the contested decision, the Board of Appeal held that the goods concerned were common consumer items and that the relevant public consisted of average EU consumers, reasonably well informed and reasonably observant and circumspect.

22      In this regard, the applicant claims that, when goods such as clothing, footwear and headgear in Class 25 are purchased, the public’s level of attention is generally higher as the public usually inspects and tries on these items before purchasing them. Moreover, according to the applicant, as a result of the fashion consciousness of many consumers purchasing goods in Class 25, including sports clothing, and the particular power of brand images and labels in the market at issue, consumers will pay more attention to those products when making their purchase selection and their level of attention will therefore be higher than average. The same goes for a large number of the Class 18 goods like bags from leather for packaging, travelling sets made from leather or handbags, which generally are not cheap and are not everyday purchases. Some of the Class 28 goods like golf bags and ball and racket bags for sports purposes are specialised goods intended for specific athletes or consumers who usually choose these goods with particular care. Consequently, the applicant claims that the relevant public’s level of attention varies from average to high, and that the Board of Appeal thereby committed an error of assessment in that regard.

23      First of all, it should be recalled, as stated in paragraph 12 of the contested decision, that clothing and, by extension, clothing accessories in Class 25 are goods that vary widely in terms of quality and price. In those circumstances, it has already been held that, while it may be accepted that the consumer is more attentive to the choice of mark where he or she buys a particularly expensive item of clothing, such an approach cannot be presumed with regard to all goods in the clothing sector (see, to that effect, judgment of 6 October 2004, New Look v OHIM — Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection), T‑117/03 to T‑119/03 and T-171/03, EU:T:2004:293, paragraph 43).

24      Furthermore, the Board of Appeal was entitled to find that the level of attention of the relevant public varied from average to higher than average as regards both clothing and clothing accessories and the other goods covered by the mark applied for. Moreover, as the applicant explicitly recognised, those goods are principally common consumer items. Nor is it apparent from their description that they are goods which are so sophisticated or expensive that the relevant public would be likely to be particularly attentive with regard to them (see, to that effect, judgments of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 19, and of 21 April 2015, Louis Vuitton Malletier v OHIM — Nanu-Nana(Representation of a grey chequerboard pattern), T‑360/12, not published, EU:T:2015:214, paragraph 27).

25      Moreover, as regards certain goods in Class 28 like golf bags and ball and racket bags for sports purposes, it should be noted that those goods are neither costly nor rare, their acquisition and use do not require specific knowledge and they do not have a serious impact on the budget or life of the consumer (see, by analogy, judgment of 20 October 2009, Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living), T‑307/08, not published, EU:T:2009:409, paragraph 21). Even though those goods may be intended for athletes, they may also be offered for sale to individuals in sports shops. Those goods may be purchased both by consumers who regularly practise a sport and by those who do not practise a sport or do not do so regularly. It cannot therefore be considered, contrary to what the applicant claims, that the goods at issue are specialised goods intended for specific athletes or consumers who usually choose these goods with particular care (see, by analogy, judgment of 16 October 2013, Zoo Sport v OHIM — K-2 (zoo sport), T‑455/12, not published, EU:T:2013:531, paragraphs 36 and 38).

26      Consequently, the Board of Appeal correctly held that, even if it was possible that certain consumers paid more attention when undertaking some purchases than others, there remained a vast cohort of the relevant public who were reasonably well informed and reasonably observant and circumspect, but no more. It could not be presumed, therefore, that that part of the relevant public would be particularly critical in its analysis of the goods purchased or place importance on the reputation of brand images and labels in the market at issue as, in essence, the applicant submits.

27      The Board of Appeal’s findings concerning the relevant public, which are not vitiated by any error of assessment, must therefore be upheld.

 The overall impression of the mark applied for

28      It should be recalled that, in order to assess whether or not a trade mark has any distinctive character, the overall impression it gives must be considered (see judgments of 30 June 2005, Eurocermex v OHIM, C‑286/04 P, EU:C:2005:422, paragraph 22 and the case-law cited, and of 4 October 2007, Henkel v OHMI, C‑144/06 P, EU:C:2007:577, paragraph 39 and the case-law cited).

29      The finding that a mark has distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009 is not subject to a finding of a specific level of linguistic or artistic creativity or imaginativeness on the part of the proprietor of the trade mark. It suffices that the trade mark would enable the relevant public to identify the origin of the goods which it covers and to distinguish them from those of other undertakings (see judgment of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 27 and the case-law cited).

30      However, a sign which is excessively simple and is constituted by a basic geometrical figure, such as a circle, a line, a rectangle or a conventional pentagon, is not, for example, according to the case-law, in itself capable of conveying a message which consumers will be able to remember, with the result that they will not regard it as a trade mark unless it has acquired distinctive character through use (see judgment of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 26 and the case-law cited).

31      In the present case, it is common ground that the sign at issue does not represent a basic geometrical figure. However, that circumstance, as such, does not suffice to support the view that it has the minimum distinctive character necessary for registration as an EU trade mark. There must also be certain characteristics of the sign that can be easily and instantly memorised by the relevant public and would make it possible for that sign to be perceived immediately as an indication of the commercial origin of the goods at issue (see judgment of 15 December 2016, Novartis v EUIPO (Representation of a grey curve and representation of a green curve), T‑678/15 and T‑679/15, not published, EU:T:2016:749, paragraphs 40 and 41 and the case-law cited).

32      In this regard, it should be recalled that the mark applied for represents a combination of two black lines, which the applicant acknowledges. Those black lines intersect by forming an acute angle. The first line is wide and in the form of an arc. The second line is smaller, slightly curved and placed above the first. It must be held that the mark applied for has no element that is visually eye-catching or likely to be remembered by the relevant public. Taken in its entirety, it presents no characteristic likely to create an impression sufficiently far removed from that produced by the mere combination of the two lines that form it so that it confers on the mark the minimum distinctive character necessary for its registration as an EU trade mark.

33      Thus, as was correctly pointed out by the Board of Appeal in paragraph 16 of the contested decision, the mark applied for is the representation of two intersecting lines whose simplicity is comparable to that of a basic geometrical figure and is incapable of conveying a message allowing consumers to perceive it as an indication of the commercial origin of the goods at issue.

34      Accordingly, the Board of Appeal did not err in its assessment of the overall impression of the mark applied for.

35      None of the applicant’s arguments is capable of calling that finding into question.

36      As regards the argument that the Board of Appeal failed to assess correctly the overall impression created by the interplay of the graphical features of the mark applied for, in particular the irregularity of the lines at issue, it must be observed that the Board of Appeal correctly held in paragraph 16 of the contested decision that, even supposing that that irregularity would be noticed by the relevant public, the mark applied for remained a very simple form and devoid of elements that were visually eye-catching or likely to be remembered by consumers. Likewise, as regards the supposedly unusual angle formed by the lines at issue, nothing supports the conclusion that that element will be perceived as characteristic, memorable or eye-catching. Thus, the irregularity of the lines, if it is accepted, and the acute angle that they form are not sufficient to enable the mark applied for to be perceived as more than an ordinary figure that is incapable of identifying the origin of the goods concerned and distinguishing them from those of other undertakings.

37      As regards the argument that the mark applied for may be interpreted in ‘various creative ways’, inter alia, as being the beak of a bird, the crest of a bird, a leaping animal or fish or even an arrow pointing up and to the left, it must be held, as the Board of Appeal correctly observed, that the mark applied for, as represented in paragraph 2 above, presents no evidence from which it could be inferred that it gives rise to such interpretations on the part of the relevant public.

38      Additionally, contrary to what the applicant suggests, the Board of Appeal did not reject those interpretations, in paragraph 18 of the contested decision, owing to the lack of a link between the goods at issue and those interpretations, but on the basis that the relevant public would not attribute such meanings to a sign that it would perceive as a simple representation of two lines forming an acute angle.

39      Moreover, even if, as the applicant claims, a totally abstract image not giving rise to any interpretation could be registered as an EU trade mark, in the present case, as a result of its lack of intrinsic distinctive character, the mark applied for does not meet the criteria set out in paragraphs 15 and 16 above and, accordingly, cannot be registered as an EU trade mark.

40      As regards the argument that the Board of Appeal incorrectly held that on clothing, such as jackets or trousers, the mark applied for would not be perceived as an indication of the commercial origin of the goods in question, it should be recalled that, in the present case, even though its level of attention varies from average to higher than average, the relevant public would not be particularly critical in its analysis of the goods in question when it purchases them. In those circumstances, the sign at issue, used on clothing such as jackets or trousers, will not be capable of attracting the attention of consumers and differentiating those goods from those of competitors, but will be perceived merely as a decorative element. As EUIPO correctly states, the sign at issue will be perceived as a simple combination of two lines that might bring to mind other combinations of lines used on clothing for aesthetic or ornamental purposes. Accordingly, contrary to what the applicant submits, the Board of Appeal was entitled to take the view, in paragraph 19 of the contested decision, that on clothing, for example on the pocket of a jacket or that of trousers, the relevant public would merely dismiss the mark applied for as an ordinary decorative element and would not attribute trade mark significance to it.

41      As regards the argument that the consumers of the goods concerned are accustomed to perceiving simple signs as trade marks, it should be recalled that, in so far as the applicant claims that the trade mark applied for is distinctive, notwithstanding the analysis of the Board of Appeal based on practical experience acquired generally from the marketing of popular consumer goods, the onus is on it to provide specific and substantiated evidence that the trade mark applied for has an intrinsic distinctive character, since it is much better placed to do so, given its thorough knowledge of the market (judgment of 13 June 2014, K-Swiss v OHIM — Künzli SwissSchuh (parallel stripes on a shoe), T‑85/13, not published, EU:T:2014:509, paragraph 18).

42      In the present case, the applicant merely sets out in support of its argument statements drawn from several decisions of the Boards of Appeal of EUIPO. Even though those decisions demonstrate that the relevant public is accustomed, in the sectors of the goods concerned, to perceiving simple signs as trade marks, it is not apparent from the case file that that public will be able to repeat its purchase owing to the sign at issue.

43      Moreover, as EUIPO observed, the three examples put forward by the applicant in paragraph 34 of the application, in order to illustrate its claim that the consumers purchasing the goods concerned, in particular clothing and sporting equipment, are used to perceiving purely figurative simple signs, are marks owned by undertakings for which it cannot be ruled out that they could, if they had to prove at the time the distinctive character of their mark, as the applicant does, claim distinctive character acquired through use. In this regard, the Court has previously held that the fact that certain signs are recognised as trade marks by consumers does not necessarily mean that they have inherent distinctive character. It is in fact possible for a mark to acquire distinctive character through use over time (see judgment of 9 November 2016, Birkenstock Sales v EUIPO (Representation of a pattern of wavy, crisscrossing lines), T‑579/14, EU:T:2016:650, paragraph 150 and the case-law cited). In the present case, none of the evidence submitted to the Court establishes that the mark applied for has distinctive character, whether inherent or acquired through use.

44      In the light of the foregoing, the Board of Appeal was correct to find, in view of the principles set out in paragraphs 15 to 17 and 28 to 31 above, that the mark applied for was devoid of distinctive character in relation to the goods concerned and the perception of the relevant public.

 The decisions of the Boards of Appeal of EUIPO and the earlier registrations concerning other EU trade marks

45      The applicant relies on a series of decisions of the Boards of Appeal of EUIPO. In its view, those decisions are an important indication as regards the signs that are considered distinctive and registrable as an EU trade mark. Although it admits that the Board of Appeal is not bound by those decisions, it maintains that the Board should have applied the same criteria in its assessment of the mark applied for. The applicant submits that if the figurative marks that were the subject of those decisions were capable of being considered distinctive, then it should indisputably be the same for the mark applied for. The applicant also relies on earlier registrations of other figurative marks it considers to be similar to the mark applied for. It submits that, even if EUIPO is not bound by its previous decisions, it is nevertheless obliged to exercise its powers in accordance with the general principles of EU law, such as the principle of equal treatment and the principle of sound administration.

46      In that respect, it should be recalled that the decisions concerning registration of a sign as an EU trade mark which EUIPO is led to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of a previous decision‑making practice (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65, and of 3 July 2013, Warsteiner Brauerei Haus Cramer v OHIM — Stuffer (ALOHA 100% NATURAL), T‑243/12, not published, EU:T:2013:344, paragraph 43).

47      In the light of the principles of equal treatment and sound administration, it has indeed been held that EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 74).

48      However, those principles must be consistent with respect for legality. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 75 and 76).

49      Moreover, for reasons of legal certainty and sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, applicable in the factual circumstances of the particular case and whose purpose is to ascertain whether the sign at issue is not caught by a ground for refusal (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77).

50      The applicant cannot therefore criticise the Board of Appeal for basing the contested decision on Regulation No 207/2009, as interpreted by the Courts of the European Union, rather than on ‘comparable’ decisions of the Boards of Appeal of EUIPO or the earlier practice of EUIPO in terms of registration of an EU trade mark.

51      In the present case, it is apparent from the contested decision that the Board of Appeal duly considered, in particular in paragraphs 23 to 30 of the contested decision, the relevance of the earlier registrations of other EU trade marks and of the decisions of the Boards of Appeal of EUIPO relied on by the applicant. However, it correctly held, as has previously been stated, that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009. That assessment cannot be called into question on the sole ground that it was not consistent with the earlier practice of EUIPO.

52      Moreover, it has previously been held that, contrary to what the applicant suggests, the mere fact that other trade marks, although simple, have been regarded as being capable of being perceived, by the relevant public, as an indication of the commercial origin of the goods in question without any possibility of confusion with those of a different origin and, therefore, as not being devoid of any distinctive character, is not conclusive for the purpose of establishing whether the mark applied for has the minimum degree of distinctive character necessary for registration as an EU trade mark (judgments of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 34, and of 6 November 2014, Representation of a wavy line, T‑53/13, EU:T:2014:932, paragraph 78 (not published)).

53      In those circumstances, the Board of Appeal cannot be criticised for incorrectly assessing the decisions of the Boards of Appeal of EUIPO and the earlier registrations of other EU trade marks relied on by the applicant.

 The registrations of the mark applied for already made in other countries

54      The applicant relies on several earlier registrations of the mark applied for made in other countries, submitting that those registrations represent a significant indication in favour of the distinctive character of the mark applied for.

55      In this regard, it is apparent from the documents submitted by the applicant that the mark applied for was registered in several EU countries such as Germany, Austria, the Benelux countries, the United Kingdom, Spain and Italy and in third countries, such as Albania, Singapore, Australia and Canada as well.

56      Nevertheless, it should be noted that, according to settled case‑law, the EU trade mark regime is an autonomous legal system which pursues objectives peculiar to it; it applies independently of any national system (judgments of 5 December 2000, Messe München v OHIM (electronica), T‑32/00, EU:T:2000:283, paragraph 47, and of 3 December 2015, Infusion Brands v OHIM (DUALTOOLS), T‑648/14, not published, EU:T:2015:930, paragraph 36). Consequently, whether a sign may be registered or protected as an EU mark must be assessed by reference to the relevant EU rules alone. Accordingly, EUIPO and, as the case may be, the Courts of the European Union are not bound by decisions given at the level of a Member State, or even a third country, that the sign in question is registrable as a national mark, which are only one factor which may be taken into account solely for the purposes of registering an EU trade mark and are not decisive (see judgment of 24 November 2016, Azur Space Solar Power v EUIPO (Representation of black lines and bricks), T‑614/15, not published, EU:T:2016:675, paragraph 44 and the case‑law cited).

57      Consequently, the Board of Appeal cannot be criticised for incorrectly assessing the registrations of the mark applied for already made in other countries relied on by the applicant.

58      In the light of all the foregoing considerations, the single plea in law raised by the applicant alleging infringement of Article 7(1)(b) of Regulation No 207/2009 must be rejected and the action must therefore be dismissed in its entirety.

 Costs

59      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Anta (China) Co. Ltd to pay the costs.


Frimodt Nielsen

Kreuschitz

Półtorak

Delivered in open court in Luxembourg on 5 April 2017.


E. Coulon

 

H. Kanninen

Registrar

 

      President


* Language of the case: English.