Judgment of the General Court (Second Chamber) of 30 November 2017 — Mackevision Medien Design v EUIPO (TO CREATE REALITY)
(Case T‑50/17)
(EU trade mark — Application for EU word mark TO CREATE REALITY — Trade mark consisting in an advertising slogan — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001])
1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Meaning
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 14,15)
2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark TO CREATE REALITY
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 18-20, 27-42, 53, 54)
3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Distinctive character — Application of specific criteria for assessment — Not permissible
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 22, 23)
4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Slogan with a fantasy character
(Council Regulation No 207/2009, Art. 7(1)(b))
(see para. 24)
5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 25, 26)
6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any 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 — Scope of protection of the mark
(Council Regulation No 207/2009, Art. 7(1)(b))
(see para 30)
7. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case
(Council Regulation No 207/2009)
(see para. 52)
Re:
| ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 20 December 2016 (Case R 995/2016-5) concerning an application for registration of the word sign TO CREATE REALITY as an EU trade mark. |
Operative part
The Court:
2. | | Orders Mackevision Medien Design GmbH Stuttgart to pay the costs. |