JUDGMENT OF THE GENERAL COURT (First Chamber)
30 September 2015 (*)
(Community trade mark — International registration designating the European Community — Word mark GREASECUTTER — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)b) and (c) of Regulation (EC) No 207/2009)
In Case T‑610/13,
Ecolab USA, Inc., established in Wilmington, Delaware (United States), represented by G. Hasselblatt and V. Töbelmann, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by L. Rampini, acting as Agent,
defendant,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 5 September 2013 (Case R 1704/2012-2), concerning the international registration designating the European Community of the word mark GREASECUTTER,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová and E. Buttigieg (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 21 November 2013,
having regard to the response lodged at the Court Registry on 11 April 2014,
having regard to the reply lodged at the Court Registry on 13 August 2014,
having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to rule on the action without an oral procedure pursuant to Article 135a of the Rules of Procedure of the General Court of 2 May 1991,
gives the following
Judgment
Background to the dispute
1 On 17 November 2011, Ecolab Deutschland GmbH obtained from the International Bureau of the World Intellectual Property Organisation (WIPO) the international registration designating the European Community of the word mark GREASECUTTER (‘the international registration’ or ‘the mark sought’). On 19 January 2012 notice of that registration was given to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
2 The goods for which registration was sought are within Classes 3 and 5 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.
3 On 2 February 2012, OHIM notified Ecolab Deutschland of an ex officio provisional refusal of protection in the European Union of the word mark at issue, pursuant to Article 5 of the Protocol relating to the Madrid Agreement concerning the international registration of marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22) and to Rule 113 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), as amended, for some the goods covered by the international registration designating the European Community, corresponding, for each of the classes referred to, to the following description:
– Class 3 — ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; essential oils, cosmetics, hair lotions; dentifrices’;
– Class 5 — ‘Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; disinfectants, preparations for destroying vermin; fungicides, herbicides’.
4 The grounds put forward in support of that refusal were: lack of distinctive character and the descriptive character of the mark at issue for the goods concerned within the meaning of Article 7(1)(b) and (c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
5 On 28 February 2012, following a transfer of the international registration, the applicant, Ecolab USA, Inc., succeeded Ecolab Deutschland as holder of the mark sought.
6 By decision of 20 July 2012, after the applicant had responded to the objections set out in the notification of provisional refusal, the examiner confirmed, for the goods referred to in paragraph 3 above and on the same grounds as those set out above, the partial refusal of protection of the mark at issue in the European Union.
7 On 12 September 2012, the applicant filed a notice of appeal against that decision with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009.
8 By decision of 5 September 2013 (‘the contested decision’), the Second Board of Appeal of OHIM allowed the action in part in respect of ‘dentifrices’ in Class 3 and ‘preparations for destroying vermin; herbicides’ in Class 5. However, it upheld the examiner’s decision with respect to the other goods referred to in paragraph 3 above on the ground that the mark sought was descriptive of those goods within the meaning of Article 7(1)(c) of Regulation No 207/2009. It considered, in particular, that the relevant English-speaking public, upon perceiving the term ‘greasecutter’ of the mark sought to refer to those goods, would understand immediately and without a doubt that they serve to dissolve or reduce animal fat. It further stated that, given that the sign for which registration was sought was descriptive of the characteristics of the goods designated by it, it therefore lacked distinctive character in respect of those goods within the meaning of Article 7(1)(b) of Regulation No 207/2009.
Forms of order sought
9 The applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
10 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
11 In support of its action, the applicant puts forward two pleas in law, alleging, respectively, an infringement of Article 7(1)(c) of Regulation No 207/2009 and an infringement of Article 7(1)(b) of that regulation.
The first plea: infringement of Article 7(1)(c) of Regulation No 207/2009
12 By its first plea, the applicant disputes, in essence, the descriptive character of the mark sought. It submits that the Board of Appeal was incorrect in finding that the relevant public would understand the mark sought as a whole as referring to goods which dissolve or reduce animal fat. It further argues that, even if that were the case, some of the goods for which registration was refused are in any event not degreasers or scouring preparations.
13 OHIM disputes the applicant’s arguments.
14 It must be recalled that, under Article 7(1)(c) of Regulation No 207/2009, ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ may not be registered.
15 According to the case-law, that provision pursues an objective of general interest, which requires that descriptive signs or indications relating to the characteristics of the goods or services in respect of which registration is sought may be freely used by all traders offering such goods or services (see, to that effect, judgments of 23 October 2003 in OHIM v Wrigley, C‑191/01 P, ECR, EU:C:2003:579, paragraph 31, and 10 March 2011 Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, ECR, EU:C:2011:139, paragraph 37).
16 By using, in that provision, the terms ‘the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’, the EU legislature made it clear, first, that those terms must all be regarded as characteristics of goods or services and, secondly, that that list is not exhaustive, since any other characteristics of goods or services may also be taken into account (judgment in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 15 above, EU:C:2011:139, paragraph 49).
17 The fact that the Union legislature chose to use the word ‘characteristic’ highlights the fact that the signs referred to in that provision are merely those which serve to designate a property, easily recognisable by the relevant class of persons, of the goods or the services in respect of which registration is sought. Consequently, a sign can be refused registration on the basis of Article 7(1)(c) of Regulation No 207/2009 only if it is reasonable to believe that it will actually be recognised by the relevant class of persons as a description of one of those characteristics (see judgment in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 15 above, EU:C:2011:139, paragraph 50 and the case-law cited).
18 It has also been held in the case-law that, for the purposes of the application of Article 7(1)(c) of Regulation No 207/2009, a determination must be made as to whether, in the light of the relevant meaning of the word sign at issue, there is, from the point of view of the relevant public, a sufficiently direct and specific relationship between that sign and the goods or services for which registration was sought, such as to enable that public to perceive immediately and without further thought a description of the goods and services in question or one of their characteristics (see, to that effect, judgments of 28 June 2012 in XXXLutz Marken v OHIM, C‑306/11 P, EU:C:2012:401, paragraph 79, and 7 July 2011 Cree v OHIM (TRUEWHITE), T‑208/10, EU:T:2011:340, paragraph 14 and the case-law cited).
19 Accordingly, the descriptive character of a mark must be assessed, first, by reference to the goods or services in respect of which registration is sought and, second, by reference to the perception of the relevant public (see judgment of 12 June 2007 in MacLean-Fogg v OHIM (LOKTHREAD), T‑339/05, EU:T:2007:172, paragraph 32 and the case-law cited).
20 It should furthermore be remembered that, for a trade mark which consists of a neologism or a word produced by a combination of elements to be regarded as descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009, it is not sufficient that each of its components may be found to be descriptive. The word or neologism itself must be found to be so. A trade mark consisting of a neologism or a word composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of the characteristics of those goods or services for the purposes of that provision, unless there is a perceptible difference between the neologism or the word and the mere sum of its parts. That assumes that, because of the unusual nature of the combination in relation to the goods or services, the neologism or word creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, with the result that the word is more than the sum of its parts. In that regard, the analysis of the term in question in the light of the appropriate lexical and grammatical rules is also relevant (see, to that effect, judgments of 25 February 2010 in Lancôme v OHIM, C‑408/08 P, ECR, EU:C:2010:92, paragraphs 61 and 62 and the case-law cited, and TRUEWHITE, cited in paragraph 18 above, EU:T:2011:340, paragraph 16 and the case-law cited).
21 It must therefore be determined whether the word sign GREASECUTTER is, from the point of view of the relevant public, descriptive of the goods for which registration was refused.
22 As regards the relevant public, the Board of Appeal’s finding in the contested decision that, having regard to the goods concerned, the relevant public in the present case is made up of both professionals and average consumers, must be upheld. Since the mark sought is made up of words from the English language, the Board of Appeal was also correct in finding that the assessment of its descriptive character for the purposes of Article 7(1)(c) of Regulation No 207/2009 must therefore be carried out with the English-speaking public in the European Union in mind. It should be remembered that Article 7(2) of Regulation No 207/2009 states that Article 7(1) is applicable even if the grounds of refusal obtain in only part of the European Union (see, to that effect, judgments in LOKTHREAD, cited in paragraph 19 above, EU:T:2007:172, paragraph 41 and the case-law cited, and TRUEWHITE, cited in paragraph 18 above, EU:T:2011:340, paragraph 18 and the case-law cited).
23 Next, for the purpose of the application of Article 7(1)(c) of Regulation No 207/2009, it is necessary to consider, on the basis of a given meaning of the word sign at issue, whether, from the point of view of the relevant public, there is a sufficiently direct and specific relationship between the sign GREASECUTTER and the goods in respect of which registration is sought as held in the case-law referred to in paragraph 18 above.
24 It must be noted in that regard, as observed by the Board of Appeal, that the term ‘greasecutter’ is made up of a juxtaposition of two distinct words from the English language, namely ‘grease’ and ‘cutter’.
25 As to the meaning to be attributed to the mark sought, in paragraph 21 of the contested decision the Board of Appeal referred to definitions from the Collins Concise Dictionary of the words of which it is composed, namely ‘grease’, meaning ‘animal fat in a soft or melted condition’ and ‘cutter’, meaning ‘a person or thing that cuts, in particular a person who cuts cloth for clothing’. It further stated that, according to the same source, the verb ‘to cut’ as used in the expression ‘to cut fat’ means, inter alia, ‘to dissolve’ or ‘to break down’ and that the word ‘greasy’ was also used to refer to something that resembles grease, such as ‘greasy hair’ or ‘greasy skin’.
26 In paragraphs 22 and 23 of the contested decision, the Board of Appeal found that the mark sought could be construed by the relevant public only as a combination of the two descriptive elements of which it is composed and whose meaning does not extend beyond what each of those elements means separately. Thus, in its view, the mark sought, taken as a whole, conveys to consumers, without further thought, that the goods covered by the trade mark application are goods which cut (dissolve) or reduce animal fat or greasiness and is thus directly descriptive of their nature, properties or intended use.
27 The Board of Appeal’s finding must be upheld.
28 It should also be borne in mind in that regard, as rightly argued by OHIM, that although the term ‘greasecutter’ does not exist per se in English or other languages of the EU Member States — as pointed out by the applicant — it is a neologism as held in the case-law referred to in paragraph 20 above, being composed of English words which are easily identifiable by the English-speaking public, especially since they form a comprehensible expression obeying English grammatical rules, one which is not unusual in English-language structure (see, to that effect and by analogy, judgment in TRUEWHITE, cited in paragraph 18 above, EU:T:2011:340, paragraph 22 and the case-law cited).
29 The Board of Appeal’s finding cannot be called into question by the arguments put forward by the applicant.
30 First of all, the applicant disagrees that the English verb ‘to cut’ is a synonym of the English verb ‘to dissolve’. It further points out that the mark sought does not, in any event, contain the verb ‘to cut’, but the term ‘cutter’, which refers to a tailor or to an object which cuts or slices.
31 It must be borne in mind that in order for a word sign to be descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009, at least one of its possible meanings must designate a characteristic of the goods or services concerned (see, to that effect, judgment of 12 April 2011 in Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, ECR, EU:T:2011:158, paragraph 50 and the case-law cited).
32 In the present case, the applicant acknowledges that the term ‘cutter’ refers not only to a tailor but also to an object that cuts. Moreover, in the English language, the word is a noun stemming from the verb ‘to cut’. Thus the Board of Appeal was correct to refer to one of the possible meanings of that verb as being ‘to dissolve’ or ‘to break down’, especially given its meaning as part of the expression ‘to cut fat’. It follows that one of the possible meanings of the mark sought, considered as a whole, is the one endorsed by the Board of Appeal, which referred to an object or good which cuts (dissolves) or reduces fat or greasiness.
33 It must also be remembered that the mere fact, relied on by the applicant, that there may be other terms which describe more precisely the characteristics of degreasers or scouring preparations, such as ‘degreaser’, ‘grease remover’ or ‘scouring preparations’, does not rule out the application of Article 7(1)(c) of Regulation No 207/2009 to the word mark sought, given the general interest pursued by that provision, as observed in paragraph 15 above (see, to that effect, judgment of 16 April 2015 in Drogenhilfe Köln Projekt v OHIM (Rauschbrille), T‑319/14, EU:T:2015:208, paragraph 23 and the case-law cited).
34 Secondly, the applicant cannot successfully challenge the Board of Appeal’s references to the results of the examiner’s Internet searches aimed at demonstrating that the term ‘greasecutter’ was used on the market to refer to cleaning products or degreasers. According to the case-law, it is not necessary that the sign covered by the registration application already be known as being descriptive; rather, it is sufficient that it could be used for such purposes for it to come within the scope of the absolute ground for refusal in Article 7(1)(c) of Regulation No 207/2009. It is thus not necessary for the Board of Appeal to establish proof that that sign is actually used in a descriptive manner (see, to that effect, judgments in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 15 above, EU:C:2011:139, paragraph 38 and the case-law cited, and of 12 January 2005 in Wieland-Werke v OHIM (SnTEM, SnPUR, SnMIX), T‑367/02 to T‑369/02, ECR, EU:T:2005:3, paragraph 40).
35 Consequently, the Board of Appeal’s references to the results of Internet searches on the term ‘greasecutter’ must be viewed as being purely illustrative and not as having decisive value for establishing the descriptive character of the mark sought. As part of its assessment, OHIM must, on a case-by-case basis and subject to review by the General Court, ascertain whether the mark sought is, inter alia, descriptive of the goods or services covered by the application, so that that analysis cannot turn on the results of an Internet search (judgment of 27 February 2015 in Universal Utility International v OHIM (Greenworld), T‑106/14, EU:T:2015:123, paragraph 35). The applicant’s arguments refuting the Board of Appeal’s references to the results of the examiner’s Internet searches aimed at challenging the descriptive character of the mark sought must therefore be rejected as ineffective.
36 Thirdly, nor can the applicant successfully argue that, even if the meaning of the mark sought endorsed in the contested decision is accepted, it is in any event not descriptive of the goods concerned.
37 It should be noted in that regard that the list of the goods concerned, general and abstract as they are, necessarily encompasses goods which, by their nature, composition, packaging or effects, are intended specifically to remove fat or reduce greasiness. Thus, contrary to the applicant’s claims, the purpose of ‘bleaching preparations’ in Class 3 is, as observed by OHIM, to launder, wash or make clean, with the result that they eliminate or remove any greasy impurities. The same holds true for ‘polishing and abrasive preparations’ in the same class. Although it is true, as the applicant has pointed out, that the latter goods are primarily intended to make a surface smooth, such an action will necessarily have the effect of removing any impurities, including possibly grease. Regarding the ‘essential oils’ also in Class 3, the applicant is incorrect in arguing that they are used solely for their fragrant properties. Some essential oils have antiseptic and antibacterial properties and are used for degreasing or disinfectant purposes. Furthermore, contrary to the applicant’s assertions and as pointed out by OHIM, ‘cosmetics’ and ‘hair lotions’ in Class 3 may have the effect of removing excess sebum produced by the skin. These considerations are also valid, in essence, in relation to ‘disinfectants’ in Class 5, which, by their nature and intended use, have the effect of purifying or sterilising, inter alia by removing or reducing greasiness. The same is true of ‘fungicides’ which, as observed by the applicant, do have as their ultimate purpose the eradication of parasitic fungi. However, that effect necessarily requires a cleaner surrounding environment due to the removal of impurities such as fat or greasiness. Lastly, the ‘pharmaceutical and veterinary preparations’, ‘dietetic substances adapted for medical use’ and ‘food for babies’ in Class 5 include some which, by their nature, composition or effects, are intended specifically to address a health issue characterised by the excessive production of sebum by the skin, excess weight or obesity, or by other conditions requiring the use of medical, dietetic or nutritional goods which have the effect of eliminating or reducing fat or grease.
38 Consequently, it is reasonable to think that the mark sought will actually be recognised by the relevant class of persons as a description of one of the characteristics of those goods in accordance with the case-law referred to in paragraphs 17 and 18 above. Since the applicant did not set out any limitations in its trade mark application to OHIM excluding goods used to dissolve or reduce grease, the Board of Appeal was correct in considering that the goods for which registration was refused necessarily included such goods and accordingly concluded that the mark sought was descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009 (see, to that effect and by analogy, judgment of 30 January 2015 in Siemag Tecberg Group v OHIM (Winder Controls), T‑593/13, EU:T:2015:58, paragraph 45).
39 Fourthly, the applicant submits, in essence, that the Board of Appeal ought to have taken into account the fact that the trade mark GREASECUTTER Plus was registered by the United States Patent and Trademark Office (USPTO) for goods in Class 3. In the applicant’s submission, although the Board of Appeal is not bound by decisions adopted in other Member States or third countries, such earlier registrations are nevertheless relevant for the assessment of the registrability of a mark, in particular whether the earlier registration took place in a country having the same language as that on which OHIM based its objections, as was the case here. Such registrations tend to show that the mark sought is liable to fulfil the essential function of a trade mark, which is to serve as an indication of the origin of the goods covered.
40 The applicant further relies on the registrations as Community marks of the signs GreaseShield and Grease Guardian for certain goods in Class 7, and GREASE FIGHT for certain goods in Class 3.
41 Turning to the argument concerning the registration of the trade mark GREASECUTTER Plus in the United States, it must be remembered that the Community trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it is self-sufficient and applies independently of any national system (see, to that effect, judgments of 5 December 2000 in Messe München v OHIM (electronica), T‑32/00, ECR, EU:T:2000:283, paragraph 47, and 21 January 2009 giropay v OHIM (GIROPAY), T‑399/06, EU:T:2009:11, paragraph 46). OHIM, and, as the case may be, the Courts of the European Union are accordingly 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. Registrations already made in the Member States or in third countries are therefore a factor which may only be taken into consideration, without being given decisive weight (see, to that effect, judgment of 21 April 2004 in Concept v OHIM (ECA), T‑127/02, ECR, EU:T:2004:110, paragraph 70). That is so even if such a decision was adopted in a country belonging to the linguistic area in which the word mark in question originated (see, to that effect, judgment of 15 September 2009 in Wella v OHIM (TAME IT), T‑471/07, ECR, EU:T:2009:328, paragraph 35). Those considerations apply a fortiori to the grounds for allowing or not allowing registration of a sign and any considerations endorsed by, in particular, the USPTO at the time of registration of the mark GREASECUTTER Plus (see, to that effect and by analogy, judgment of 18 November 2014 in Think Schuhwerk v OHIM — Müller (VOODOO), T‑50/13, EU:T:2014:967, paragraph 52).
42 As regards, moreover, the substance and in so far as the applicant relies on the registrations of other Community trade marks, it should be remembered that OHIM is under a duty to exercise its powers in accordance with the general principles of EU law. Although, in the light of the principles of equal treatment and sound administration, OHIM must take into account the decisions already taken in respect of similar applications and must consider with especial care whether it should decide in the same way or not, the way in which those principles are applied must be consistent with respect for legality. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be rigorous and complete, in order to prevent trade marks from being improperly registered or maintained. Such an examination must therefore be undertaken in each individual case. The registration or maintenance of a sign as a Community 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 (see, to that effect, judgments in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 15 above, EU:C:2011:139, paragraphs 73 to 77 and the case-law cited, and 8 November 2012 Hartmann v OHIM (Nutriskin Protection Complex), T‑415/11, EU:T:2012:589, paragraph 36).
43 In the present case, the Board of Appeal concluded, on the basis of a complete examination and taking account of the relevant public’s perception, and having regard to the characteristics of the mark sought and the goods concerned, that that mark was descriptive. It is thus clear from the examination carried out in paragraphs 22 to 38 above that, in the present case, the principle of legality justified a refusal to register that mark on the basis of Article 7(1)(c) of Regulation No 209/2007. Therefore, since the legality of the contested decision concerning the non-registrability of the mark sought as a Community mark for the goods covered by the application has been established directly on the basis of Article 7(1)(c) of Regulation No 207/2009, it is clear from the case-law referred to in paragraph 42 above that it cannot be called into question simply because the Board of Appeal failed to take into account, in this case, the fact that the sign GREASECUTTER Plus had been registered in the United States, or because it failed to follow a certain line of OHIM decision-making practice, if such practice were to be established.
44 It follows from all the foregoing that the first plea in law must be rejected.
The second plea in law: infringement of Article 7(1)(b) of Regulation No 207/2009
45 The applicant submits that the mark sought has distinctive character with respect to the goods concerned. The Board of Appeal’s reasoning is limited to a statement that the relevant public will construe the mark sought as a description of the goods covered. Yet the arguments the applicant puts forward to challenge the descriptive character of the mark sought show, in its submission, that the mark was not devoid of distinctive character.
46 OHIM contests the position adopted by the applicant.
47 In the light of the considerations set out in paragraphs 22 to 43 above, it is not necessary to examine the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009, since it is sufficient that one of the absolute grounds for refusal applies for the sign at issue not to be registrable as a Community trade mark (judgment of 19 September 2002 in DKV v OHIM, C‑104/00 P, ECR, EU:C:2002:506, paragraph 29; see also judgments of 26 October 2000 in Community Concepts v OHIM (Investorworld), T‑360/99, ECR, EU:T:2000:247, paragraph 26 and the case-law cited, and 9 July 2008 Coffee Store v OHIM (THE COFFEE STORE), T‑323/05, EU:T:2008:265, paragraph 49).
48 In any event, it should be borne in mind, with respect to the alleged infringement of Article 7(1)(b) of Regulation No 207/2009, that the overlap between the absolute grounds for refusal implies, in particular, that a word mark which is descriptive of characteristics of goods or services may, on that account, be devoid of any distinctive character in relation to those goods or services, without prejudice to other reasons why it may be devoid of distinctive character (see order of 18 March 2010 in CFCMCEE v OHIM, C‑282/09 P, ECR, EU:C:2010:153, paragraph 52, and judgment in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 15 above, EU:C:2011:139, paragraph 46 and the case-law cited).
49 In the present case, it has been established that the Board of Appeal considered, correctly, that the mark sought was descriptive in respect of the goods covered.
50 The Board of Appeal was therefore correct in finding that the mark sought had no distinctive character.
51 It follows from the foregoing that the second plea in law put forward by the applicant must also be rejected, as must the action in its entirety.
Costs
52 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 OHIM.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders Ecolab USA, Inc. to pay the costs.
Kanninen | Pelikánová | Buttigieg |
Delivered in open court in Luxembourg on 30 September 2015.
[Signatures]