Judgment of the General Court (Eighth Chamber) of 16 November 2017 – Nanogate v EUIPO (metals)
(Case T-767/16)
(European Union trade mark — Application for EU figurative mark metals — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))
1. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Aim – Need to preserve availability
(Council Regulation No 207/2009, Art. 7(1)(c))
(see para. 20)
2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Assessment of the descriptive nature of a sign – Criteria
(Council Regulation No 207/2009, Art. 7(1)(c))
(see paras 21-24)
3. Judicial proceedings – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – General reference to other documents not annexed to the application – Inadmissibility
(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))
(see paras 31, 32, 56)
4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Assessment of distinctive character
(Council Regulation No 207/2009, Art. 7(1)(c))
(see para. 40)
5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Figurative mark metals
(Council Regulation No 207/2009, Art. 7(1)(c))
(see paras 34-46)
6. 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 paras 48-52)
7. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Review of the lawfulness of decisions of the Boards of Appeal – Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies – Not included
(Council Regulation No 207/2009, Art. 65(2))
(see para. 53)
8. EU trade mark – Definition and acquisition of the EU trade mark – Assessment of the registrability of a sign – EU rules only taken into account – Earlier registration of the mark in certain Member States or third countries – Decisions not binding EU bodies
(Council Regulation No 207/2009)
(see para. 57)
Re:
| ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 29 August 2016 (Case R 2361/2015-5) concerning an application for registration of figurative sign metals as an EU trade mark. |
Operative part
The Court:
1. Dismisses the action;
2. Orders Nanogate AG to pay the costs.