JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
19 June 2024 (*)
(EU trade mark – International registration designating the European Union – Figurative mark representing a broken circle – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001)
In Case T‑304/23,
Coinbase, Inc., established in Oakland, California (United States), represented by M. Zintler, N. Schmidt-Hamkens and F. Stoll, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Markakis and V. Ruzek, acting as Agents,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva and E. Tichy-Fisslberger (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 29 February 2024,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Coinbase, Inc., seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 March 2023 (Case R 2001/2022-1) (‘the contested decision’).
Background to the dispute
2 On 15 May 2021, the applicant designated the European Union for international registration No 1629156 in respect of the following figurative sign:
3 The goods and services in respect of which protection of the international registration was sought were in Classes 9, 35, 36, 41, 42 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, for each of those classes, after amendment on 28 January 2022, to the following description:
– Class 9: ‘Downloadable computer software for use in electronically trading, storing, sending, receiving, accepting and transmitting digital currency, and managing digital currency payment and exchange transactions; downloadable computer software for processing electronic payments and for transferring funds to and from others; downloadable authentication software for controlling access to and communications with computers and computer networks; magnetically encoded credit cards and magnetic ID cards for use in connection with payment for services; downloadable mobile application software for facilitating financial transactions; downloadable mobile application software for use in business and trade information management; downloadable software for enabling investors to stake their digital assets eligible for returns in a proof of stake network, vote to support network governance events, create digital assets and execute trades of digital assets’;
– Class 35: ‘Online trading services in which seller posts products to be auctioned and bidding is done via the internet’;
– Class 36: ‘Currency exchange services; on-line real-time currency trading; cash management, namely, electronic transfers of funds in the nature of electronic cash equivalents; electronic funds transfer featuring digital currency for transferrable electronic cash equivalent units having a specified cash value; digital currency exchange transaction services for transferrable electronic cash equivalent units having a specified cash value; financial services, namely, conducting a securities and derivatives exchange; financial services, namely, stock brokerage services, investment brokerage services, broker-dealer financial services in the field of in mutual funds, and providing information in the fields of financial investment and finance over computer networks and global communication network; financial services, namely, electronic funds transfer; clearing and reconciling financial transactions via a global computer network; providing a wide variety of payment and financial services, namely, credit card payment processing services, credit cards authorization services, providing personal loans and lines of credit, electronic payment services involving electronic processing and subsequent transmission of bill payment data, bill payment services featuring guaranteed payment delivery, all conducted via a global communications network; credit card and debit card transaction processing services; financial management of reimbursement payments for others featuring funds for disputed items in the field of electronic payment purchases; insurance services, namely, writing property and casualty insurance for goods and services purchased by others via a global computer network and wireless networks; credit card transaction processing services; issuance of credit services featuring revolving credit accounts; bill payment services; bill payment services provided via mobile applications; credit card payment processing services; electronic foreign exchange payment processing; merchant services, namely, payment processing services featuring virtual currency; financial affairs, namely, financial management, financial planning, financial forecasting, financial portfolio management and financial analysis and consultation; banking; financial information provided by electronic means; financial services, namely, providing information in the field of finance via the internet and providing on-line stored value accounts in an electronic environment; electronic banking services via a global computer network; stock brokerage services featuring trading in securities, derivatives and currencies; monetary exchange; commodities exchange services; financial exchange; financial information featuring rates of exchange; futures exchange services; currency exchange and advice; brokerage in the field of commodities, investments; financial consultation services in the field of payment systems; investment management services featuring management of assets; consultancy services in the field of financial planning and financial management; financial consultation services in the field of financial planning, financial management, and payment systems; investment management and financial risk management; financial management in the field of digital asset investment portfolios; financial management in the field of digital asset investment funds; financial management in the field of digital asset hedge funds; financial management in the field of digital asset index funds; financial management in the field of digital asset exchange-traded funds; financial management of digital asset portfolios and advise on financial digital assets; financial management of digital assets; financial management in the fields of mutual funds, securities and stocks; financial management in the field of digital asset mutual funds financial custody services, namely, maintaining possession of financial assets for others for financial management purposes for financial institutions and funds; financial investment brokerage services featuring prime lending rates; financial services, namely, providing information and cryptocurrency trading services, all featuring financial derivatives on cryptocurrencies; financial administration of stock exchange trading of shares and other financial securities in financial markets; financial exchange; financial information and advisory services; financial information processing; financial information provided by electronic means in the field of alternative assets; financial services, namely, electronic financial trading services, clearing and reconciling financial transactions via internet and electronic communications networks, financial asset management, management of investment portfolios, investment funds, index funds and exchange-traded funds, investment advisory services regarding pooled investment vehicles, funds investment, investment consultation, and investment of funds for others; financial services, namely, trading of financial instruments for others in the nature of securities, options, futures, derivatives, debt instruments and commodities; cryptocurrency trading services; cryptocurrency exchange services; financial consultation in the field of digital assets, namely, cryptocurrency, virtual currency, digital tokens, digital currency, decentralized application tokens and blockchain based assets; cryptocurrency payment processing; financial brokerage services for cryptocurrency trading; electronic financial trading services in the nature of algorithmic trading services; digital asset distribution services; providing loans for the purpose of financial trading; provision of commercial loans; facilitation of peer to peer payment services; providing information in the fields of finance, digital currency, cryptocurrency and digital assets, via a website; trade execution services relating to virtual currency’;
– Class 41: ‘Educational services, namely, providing online classes, tutorials, seminars and workshops in the fields of finance, digital currency, cryptocurrency and digital assets’;
– Class 42: ‘Providing temporary use of online non-downloadable software for use in electronically trading, storing, sending, receiving, accepting and transmitting digital currency, and managing digital currency payment and exchange transaction; providing temporary use of on-line non-downloadable software for processing electronic payments; providing temporary use of on-line non-downloadable authentication software for controlling access to and communications with computers and computer networks; providing technological consulting in the field of digital assets, namely, cryptocurrency, virtual currency, digital tokens, digital currency, decentralized application tokens and blockchain based assets; cryptocurrency and digital asset services, namely, technology custody services in the nature of electronic storage of cryptocurrency and digital assets for safeguarding, storing, and enabling users to access cryptocurrency and other digital assets for institutional investors; providing temporary use of online non-downloadable software for enabling investors to stake their digital assets eligible for returns in a proof of stake network, vote to support network governance events, create digital assets and execute trades of digital assets’.
4 By decision of 18 August 2022, the examiner dismissed the application for international registration protection in the European Union on the basis of Article 7(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 On 13 October 2022, the applicant filed a notice of appeal with EUIPO against the examiner’s decision.
6 By the contested decision, the Board of Appeal dismissed the appeal on the ground that the mark applied for was devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 (paragraph 33 of that decision).
7 In essence, the Board of Appeal found that the mark applied for constitutes an unremarkable geometrical shape and would, at first sight, be perceived by the relevant public as a circle which is broken on the right-hand side. That circle has no memorable element or characteristic and would not make a particular impression on that public (paragraph 23 of the contested decision). Consequently, that mark does not make it possible to distinguish the goods and services at issue and cannot function as an indication of commercial origin (paragraph 30 of that decision).
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision;
– declare that Article 7(1)(b) of Regulation 2017/1001 does not preclude registration of the trade mark applied for in respect of the goods and services at issue;
– order EUIPO to pay the costs.
9 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in the event that an oral hearing is convened.
10 In response to a question put by the Court at the hearing, the applicant stated that its second head of claim must be understood as asking the Court to alter the contested decision, formal note of which was taken in the minutes of the hearing.
Law
11 The applicant relies on two pleas in law, alleging, first, infringement of Article 7(1)(b) of Regulation 2017/1001 and, secondly, breach of the principles of equal treatment and sound administration.
The first plea, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
12 The applicant submits that the mark applied for has distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001, in so far as that mark is abstract and ambiguous and allows a sufficiently wide variety of possible interpretations, all of which are memorable, including, in particular, interpretation as an unusual representation of the capital letter ‘C’. In that context, the applicant claims that the Board of Appeal, first, did not take account of the market practice according to which simple but stylised signs are used as an indication of origin, in particular in the digital (financial) sector, and, secondly, disregarded the fact that a minimum degree of distinctive character is sufficient to allow registration of a trade mark. The applicant observes that that Board of Appeal also used arguments based on Article 7(1)(c) of Regulation 2017/1001, although that provision was not raised as a ground for objection. Furthermore, according to the applicant, that Board of Appeal did not take into consideration EUIPO’s previous decision-making practice and the registration of similar EU trade marks.
13 EUIPO disputes the applicant’s arguments.
14 Under Article 7(1)(b) of Regulation 2017/1001, trade marks which are devoid of any distinctive character are not to be registered.
15 For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001, it must serve to identify the goods and services in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods and those services from those of other undertakings (see, to that effect, judgment of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 33 and the case-law cited).
16 The distinctive character of a trade mark within the meaning of Article 7(1)(b) of Regulation 2017/1001 must be assessed, first, by reference to the products or services in respect of which registration has been applied for and, second, by reference to the perception of the relevant public (see judgment of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 35 and the case-law cited).
17 In the first place, as regards the relevant public, the parties do not dispute the Board of Appeal’s finding, in paragraph 18 of the contested decision, that the goods and services covered by the mark applied for, related to trading, currency and cryptocurrency, are aimed at business customers and professionals in that field throughout the European Union, whose level of attention is higher than average. That finding is not vitiated by any error.
18 In that regard, it should be observed that, as the Board of Appeal noted in paragraph 19 of the contested decision, the fact that the relevant public is a specialist one cannot have a decisive influence on the legal criteria used to assess the descriptive or distinctive character of a sign (judgments of 7 May 2019, Fissler v EUIPO (vita), T‑423/18, EU:T:2019:291, paragraph 14, and of 23 November 2022, General Wire Spring v EUIPO (GENERAL PIPE CLEANERS), T‑151/22, not published, EU:T:2022:721, paragraph 25).
19 In the second place, it must be recalled that, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it 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 OHIM, C‑144/06 P, EU:C:2007:577, paragraph 39 and the case-law cited).
20 The Board of Appeal found, in paragraph 23 of the contested decision, that the mark applied for was a figurative mark representing a circle which is broken on the right-hand side in black and with a thick or bold outline. According to the Board of Appeal, apart from the slight break in the circle on the right-hand side, that mark did not contain any memorable element or characteristic that the relevant public could remember and perceive as distinctive. That mark is excessively simple and unremarkable and therefore incapable, in itself, of conveying a message which consumers would be able to remember and which they could recognise as an indication of commercial origin. That simplicity makes the mark in question unsuitable to function as a trade mark.
21 The applicant criticises that assessment by the Board of Appeal, claiming that the mark applied for is abstract and ambiguous and gives rise to a wide variety of interpretations, which do not involve a common circular shape. According to the applicant, the break or deliberate intersection is visible, even from a greater distance. That break or intersection and the non-continuous line are also remembered by the relevant public, which is likely, in view of the nature of the goods and services at issue, to perceive that mark on a computer or a mobile telephone screen.
22 In that regard, it is apparent from settled case-law that 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, 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, The Smiley Company v OHIM (Representation of half a smiley smile), T‑139/08, EU:T:2009:364, paragraph 26 and the case-law cited).
23 That being so, a finding that a mark has distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 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 should enable the relevant public to identify the origin of the goods or services 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).
24 It is also apparent from the case-law that cases of a sign which is excessively simple, within the meaning of the case-law cited in paragraph 22 above, are not limited to cases of basic geometrical figures and that the fact that a sign does not represent a geometrical figure is not sufficient, in itself, for it to be held that that sign has the minimum distinctive character necessary for its registration (see judgment of 4 April 2019, Stada Arzneimittel v EUIPO (Representation of two facing arches), T‑804/17, not published, EU:T:2019:218, paragraph 23 and the case-law cited).
25 In the present case, as the Board of Appeal correctly pointed out in paragraph 23 of the contested decision, the mark applied for represents a circle which is broken on the right-hand side in black and with a thick or bold outline. Consequently, as the Board of Appeal found in paragraph 20 of that decision, that mark is an unremarkable geometrical shape.
26 As the Board of Appeal also observed in paragraph 28 of the contested decision, the fact that it could be argued that the mark applied for does not purely represent a basic geometrical figure does not, however, as such, suffice to support the view that it has the minimum distinctive character necessary for registration as an EU trade mark. There must also be characteristics of the sign which may be easily and instantly memorised by the relevant public which would make it possible for that sign to be perceived immediately as an indication of the commercial origin of the goods and services at issue (see, to that effect, 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).
27 In so far as the applicant maintains that the break in the circle and the non-continuous line functioned as such easily and instantly memorable characteristics, it is sufficient to note, first, that the non-continuous line is the inevitable consequence of the break in the circle. It is therefore the same characteristic, described in two different ways. Secondly, the fact that the break is visible does not mean that this is also an easily and instantly memorable characteristic within the meaning of the case-law cited in paragraph 26 above. On the contrary, since it is comparable to a basic geometrical shape, the circle which is slightly broken does not contain any element or characteristic that is likely to be remembered by the relevant public. The applicant’s argument that the break in the circle serves as a starting point for multiple interpretations is also unconvincing, since that break is not in any event likely to attract the public’s attention. Whatever the distance and means of observation, that break is still perceived as a minor element of the sign because it is minimal in relation to the whole circle.
28 Therefore, the Board of Appeal did not err in its assessment of the overall impression of the mark applied for in finding that that mark was excessively simple and did not display any aspect easily and instantly memorised by the relevant public which would make it possible for the mark to be perceived immediately as an indication of the commercial origin of the goods and services at issue. Contrary to what the applicant claims, it must therefore be held that that mark does not have the minimum degree of distinctive character sufficient to preclude the application of the absolute ground for refusal laid down in Article 7(1)(b) of Regulation 2017/1001.
29 None of the applicant’s other arguments is capable of calling that finding into question.
30 First, in so far as the applicant submits that part of the relevant public also interprets the mark applied for as a very unusual representation of the capital letter ‘C’, which is also the initial letter of the applicant’s company name, it is sufficient to observe that, in relation to that capital letter, the broken circle of which the mark in question consists is rounder and its empty space much smaller. In the light of the fact that no other element of that mark prompts its direct perception as being that capital letter, it must be held that it is not likely that that public will be able to equate that mark with such a capital letter. Since the applicant’s name, which begins with the capital letter in question, is not included in that mark, it is even less likely that that mark will be associated with the same capital letter.
31 Secondly, in so far as the applicant takes the view that, in paragraphs 26 and 30 of the contested decision, the Board of Appeal unduly extended the scope of the appeal by using an argument relating to Article 7(1)(c) of Regulation 2017/1001, which was not raised by the examiner and which should not be used in the application of Article 7(1)(b) of that regulation, it should be noted that the Board of Appeal, based its decision solely on Article 7(1)(b) (paragraph 33 of that decision), and, moreover, refused registration of the mark applied for on the ground that it was a broken circle and therefore a mark which is excessively simple (paragraphs 23, 25 and 30 of that decision).
32 By contrast, as EUIPO correctly contends, the Board of Appeal’s observations in paragraphs 26 and 30 of the contested decision relating to the descriptive character of the mark applied for concern only the situation in which that mark would be perceived as a capital letter ‘C’. These are therefore only observations which are included for the sake of completeness.
33 It should be recalled that, according to settled case-law, even if a ground proves to be erroneous, that cannot justify the annulment of the measure which it affects if it is included for the sake of completeness and if other grounds exist which are sufficient to justify the measure. It is also settled case-law that complaints directed against grounds included in a judgment purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (see judgment of 30 April 2013, Boehringer Ingelheim International v OHIM (RELY-ABLE), T‑640/11, not published, EU:T:2013:225, paragraph 27 and the case-law cited). The applicant’s arguments disputing the descriptive character of the mark applied for must therefore be rejected as being ineffective.
34 Thirdly, as regards the applicant’s assertion that the mark applied for allows for a ‘sufficiently wide array of possible interpretations’, inter alia, as being a ‘Landolt ring’, a key, a spatula, a spoon or a pin, respectively white and on a black background, or even as a street’s cul-de-sac, it must be held that that mark, as shown in paragraph 2 above, does not, in the absence of other elements, present any evidence making it possible to claim that it will give rise to such interpretations in respect of which the applicant has not, moreover, provided any evidence. On the contrary, it must be held that the relevant public will not attribute such meanings to a sign which it will immediately perceive as the mere representation of a circle which is broken on the right-hand side.
35 Fourthly, in so far as the applicant claims that consumers of the goods and services at issue are accustomed to perceiving simple but stylised signs as being trade marks, in particular, in the digital (financial) sector, it should be noted that the applicant merely sets out in support of its argument statements drawn from some previous EUIPO decisions and screenshots of the website ‘crypto.com’ showing logos of other undertakings in the sector which are not registered as EU trade marks. It is not apparent either from those decisions and logos or from the case file that the relevant public will be able to repeat its purchase owing to the sign at issue (see, to that effect and by analogy, judgment of 5 April 2017, Anta (China) v EUIPO (Representation of two lines forming an acute angle), T‑291/16, not published, EU:T:2017:253, paragraph 42).
36 Accordingly, the first plea must be rejected as being in part ineffective and in part unfounded, with the exception of the complaint relating to EUIPO’s previous decision-making practice, which will be examined in the second plea.
The second plea, alleging breach of the principles of equal treatment and sound administration
37 The applicant claims, in essence, that the Board of Appeal breached the principles of equal treatment and sound administration having regard, first, to EUIPO’s decision relating to the international registration No 1696415 designating the European Union in respect of goods and services in Classes 9, 38 and 41 concerning an identical mark and, secondly, to the fact that it successfully registered the sign at issue for goods and services in Classes 9, 35, 36, 41 and 42 in two Member States, namely in Latvia and Lithuania, as well as in a number of third countries, namely in Argentina, Armenia, the United Kingdom, Indonesia, Israel, Kazakhstan, Monaco, Mexico, Mongolia, Norway, New Zealand, Oman, Switzerland, the Philippines, Ukraine, Uruguay, the United States, Chile, Ecuador, Aruba, Curaçao, Andorra, the United Arab Emirates, with the African Intellectual Property Organization, in Hong Kong, Macao and Taiwan.
38 Furthermore, by a complaint raised in the first plea, the applicant relies on a series of decisions of the examiners and Boards of Appeal of EUIPO to show that the contested decision is contrary to EUIPO’s previous practice. According to the applicant, those decisions concerning similar signs show that that Board of Appeal’s reasoning is not based on a clear and unambiguous criterion relating to the distinctive character of figurative marks.
39 EUIPO disputes the applicant’s arguments.
40 In the first place, as regards the registrations of the sign at issue in other countries, it should be recalled that 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, the registrability or protectability of a sign as an EU trade mark must be assessed by reference only to the relevant EU rules. Accordingly, EUIPO and, as the case may be, the courts of the European Union are not bound by a decision given in a Member State, or in a third country, that the sign in question is registrable as a national mark (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).
41 In the second place, as regards the international registration No 1696415 designating the European Union concerning a mark identical to the mark applied for with EUIPO for goods and services in Classes 9, 38 and 41, it should be noted that it is common ground that that identical mark was not relied on before the Board of Appeal and that the applicant does not even claim that that identical mark should have been taken into account by that Board of Appeal.
42 Moreover, it must be recalled that, first, the decisions concerning registration of a sign as an EU trade mark which EUIPO is led to take under Regulation 2017/1001 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 EU judicature 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).
43 Secondly, the way in which the principles of equal treatment and sound administration are applied 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 or her advantage and in order to secure an identical decision, on a possibly unlawful act committed for the benefit of someone else. Moreover, for reasons of legal certainty and, indeed, of 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, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 77; of 14 December 2018, Dermatest v EUIPO (ORIGINAL excellent dermatest), T‑803/17, not published, EU:T:2018:973, paragraph 59; and of 14 September 2022, Lotion v EUIPO (BLACK IRISH), T‑498/21, not published, EU:T:2022:543, paragraph 75).
44 Those considerations apply even if the sign in respect of which registration as an EU trade mark is sought is composed in a manner identical to that of a mark in respect of which EUIPO has already approved registration as an EU trade mark and which relates to goods or services identical or similar to those in respect of which registration of the sign in question is sought (see judgment of 13 May 2020, Global Brand Holdings v EUIPO (XOXO), T‑503/19, not published, EU:T:2020:183, paragraph 59 and the case-law cited).
45 In those circumstances, having regard to the fact that the Board of Appeal was right in finding, as a result of a stringent and full examination, that the mark applied for was caught by the ground for refusal laid down in Article 7(1)(b) of Regulation 2017/1001 (see paragraph 28 above), it is to no avail that the applicant relies, for the purpose of invalidating that finding, on the registration of an identical mark by EUIPO and on the registration of the sign at issue in a number of different countries.
46 For the same reasons, the complaint, raised in the first plea, by which the applicant relies on a series of previous decisions of the examiners and Boards of Appeal of EUIPO to show that the contested decision is contrary to EUIPO’s previous practice, must be rejected. That is a fortiori the case since the signs which are the subject of those decisions, first, have a higher degree of stylisation compared with the mark applied for, and, secondly, are not of a simplicity comparable to that of basic geometrical figures.
47 Consequently, the second plea and the complaint relating to EUIPO’s previous decision-making practice must be rejected as being unfounded.
48 It follows from all of the foregoing that the action must be dismissed in its entirety, without it being necessary to rule on the admissibility of the applicant’s second head of claim.
Costs
49 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 and a hearing was convened, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO, which requested that the applicant be ordered to pay the costs in the event that an oral hearing is convened.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Coinbase, Inc., to pay the costs.
Costeira | Kancheva | Tichy-Fisslberger |
Delivered in open court in Luxembourg on 19 June 2024.
V. Di Bucci | | S. Papasavvas |