JUDGMENT OF THE GENERAL COURT (Second Chamber)
3 December 2019 (*)
(EU trade mark — International registration designating the European Union — Figurative mark representing a chequered gingham pattern — Absolute grounds for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001)
In Case T‑658/18,
Hästens Sängar AB, established in Köping (Sweden), represented by M. Johansson and R. Wessman, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Söder, H. O’Neill and D. Gája, acting as Agents,
defendant,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 8 August 2018 (Case R 442/2018-2) concerning the international registration designating the European Union of a figurative mark representing a chequered gingham pattern,
THE GENERAL COURT (Second Chamber),
composed of E. Buttigieg, acting as President, B. Berke (Rapporteur) and M.J. Costeira, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the application lodged at the Court Registry on 31 October 2018,
having regard to the response lodged at the Court Registry on 30 January 2019,
further to the hearing on 24 September 2019,
gives the following
Judgment
Background to the dispute
1 On 16 December 2016 the applicant, Hästens Sängar AB, filed an application for international registration designating the European Union at 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), as amended (replaced by 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)).
2 The mark which is the subject of the international registration designating the European Union is the following figurative sign:
3 The goods and services for which registration was sought are in Classes 20, 24, 25 and 35 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 20: ‘Furniture, including beds, bed frames and bedroom furniture; mattresses, spring mattresses, overlay mattress; pillows and down pillows’;
– Class 24: ‘Woven textiles, textile products, not included in other classes; bed linen; down quilts’;
– Class 25: ‘Clothing; footwear; headgear’;
– Class 35: ‘Marketing, commercial information related to furniture, home furnishings and interior decoration products, textile products, bed linen, bed covers, clothing, footwear and headgear and toys’.
4 By decision of 9 January 2018, the examiner refused protection on the basis of Article 7(1)(b) of Regulation 2017/1001 in relation to the goods and services in question on account of the mark’s lack of distinctive character.
5 On 7 March 2018, the applicant filed a notice of appeal under Articles 66 to 71 of Regulation 2017/1001 against the decision of the examiner.
6 By decision of 8 August 2018 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal with regard to all the goods and services in question on the basis of Article 7(1)(b) of Regulation 2017/1001.
7 First, the Board of Appeal held that the relevant public, which consists of the general public in the European Union as a whole, would perceive the mark applied for as a simple geometric pattern, namely a square divided into four squares of the same size, of which three are filled with different shades of grey-blue while the fourth is white. Second, the Board of Appeal held that, since such a pattern could be applied to the surface of the applicant’s textiles, furniture and clothing, the mark applied for did not consist of a sign unrelated to the appearance of the goods it designated. Third, the Board of Appeal held that the mark applied for, when applied to the goods at issue, would be perceived as an attractive detail rather than as an indication of its commercial origin since it did not differ significantly from the norm or customs of the sector. Fourth, the Board of Appeal took the view that the mark applied for did not contain any notable variation in relation to the conventional representation of a chequered design found everywhere in the field of textiles.
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs.
9 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
10 It is necessary to clarify that the applicant’s complaints, although divided into four subheadings, in fact concern errors of assessment regarding the lack of distinctive character of the mark applied for. In addition, under the same subheadings, the applicant brings together materially different complaints such as infringement of the right to be heard and error of assessment. In essence, the applicant relies on three pleas in law, alleging, (i) infringement of Article 7(1)(b) of Regulation 2017/1001; (ii) failure to comply with Article 94(1) of that regulation; and, (iii) infringement of Article 94(1) and Article 95(1) of the same regulation.
The first plea, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
11 By this plea, in essence, the applicant criticises the Board of Appeal for having found that the mark applied for was a repeated pattern or a three-dimensional mark, for having considered that the assessment of the general use of chequered patters on the market in the textiles sector was relevant for the purpose of assessing the distinctive character of the mark applied for, and for having wrongly based its assessment on the finding that the mark consisted of the surface of the goods, whereas in fact it consists of a logo.
12 EUIPO disputes the applicant’s arguments.
13 As a preliminary point, it should be recalled that, under Article 7(1)(b) of Regulation 2017/1001, trade marks which are devoid of any distinctive character are not to be registered.
14 It is apparent from settled case-law that for a trade mark to possess distinctive character for the purposes of that article, it must serve to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (judgments of 29 April 2004, Procter & Gamble v OHIM, C‑473/01 P and C‑474/01 P, EU:C:2004:260, paragraph 32; of 8 May 2008, Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 66; and of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 33).
15 In that regard, in the first place, a mark’s distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the relevant public’s perception of the mark (judgments of 29 April 2004, Procter & Gamble v OHIM, C‑473/01 P and C‑474/01 P, EU:C:2004:260, paragraph 33; of 8 May 2008, Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 67; and of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 34).
16 A minimum degree of distinctive character is sufficient to render the absolute ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001 inapplicable (judgment of 14 March 2014, Lardini v OHIM (Affixing of a flower to a collar), T‑131/13, not published, EU:T:2014:129, paragraph 16).
17 The 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 enables the relevant public to identify the origin of the goods or services which it covers and to distinguish them from those of other undertakings (judgments 16 September 2004, SAT.1 v OHIM, C‑329/02 P, EU:C:2004:532, paragraph 41, and of 29 September 2009, The Smiley Company v OHIM (Representation of half a smiley smile), T‑139/08, EU:T:2009:364, paragraph 27).
18 Nevertheless, a sign which is excessively simple and composed of 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 (judgments of 12 September 2007, Cain Cellars v OHIM (Representation of a pentagon), T‑304/05, not published, EU:T:2007:271, paragraph 22, and of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 26).
19 In the second place, it is also settled case-law that the criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark (see judgment 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 20 and the case-law cited).
20 However, it should be borne in mind that, for the purpose of applying those criteria, the average consumer’s perception is not necessarily the same in the case of a three-dimensional mark consisting of the appearance of the product itself as it is in the case of a word or figurative mark consisting of a sign unrelated to the appearance of the products it denotes (judgment of 21 April 2015, Representation of a grey chequerboard pattern, T‑360/12, not published, EU:T:2015:214, paragraph 21).
21 Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark (judgment of 21 April 2015, Representation of a grey chequerboard pattern, T‑360/12, not published, EU:T:2015:214, paragraph 22).
22 In addition, in accordance with the case-law, the more closely the shape for which registration is sought resembles the shape most likely to be taken by the goods in question, the greater the likelihood of the shape being devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001. In those circumstances, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001 (judgment of 21 April 2015, Representation of a grey chequerboard pattern, T‑360/12, not published, EU:T:2015:214, paragraph 23).
23 That case-law, which was developed in relation to three-dimensional trade marks consisting of the appearance of the goods themselves, also applies where the mark applied for is a figurative mark consisting of the two-dimensional representation of that product. In such a case, the mark also does not consist of a sign unrelated to the appearance of the goods it covers (judgment of 21 April 2015, Representation of a grey chequerboard pattern, T‑360/12, not published, EU:T:2015:214, paragraph 24).
24 That is equally the case of a figurative mark consisting of a part of the shape of the product that it designates, inasmuch as the relevant public will immediately and without further thought perceive it as a representation of a particularly interesting or attractive detail of the product in question, rather than as an indication of its commercial origin (judgment of 21 April 2015, Representation of a grey chequerboard pattern, T‑360/12, not published, EU:T:2015:214, paragraph 25).
25 It is in the light of those considerations that it must be determined whether, in the present case, the relevant public will perceive the mark applied for as an indication of commercial origin, and therefore as having distinctive character.
The relevant public
26 It must be noted that the Board of Appeal rightly found, in paragraphs 19 to 21 of the contested decision, that the relevant public consisted of the general public of the European Union, a point which, moreover, is not disputed by the applicant.
Perception of the trade mark applied for
27 It is necessary to assess whether the mark applied for is unrelated to the appearance of the goods it covers, in accordance with the case-law cited in paragraph 23 above.
28 The Board of Appeal held in paragraphs 24, 26 and 27 of the contested decision that the mark applied for was not unrelated to the appearance of the goods it covered, since it was presented in the form of a pattern which could be placed on the surface of the goods in question and the relevant public would immediately and without further thought perceive it as an attractive detail of the product in question rather than as an indication of its commercial origin.
29 The Board of Appeal was fully entitled to find that the mark applied for was presented in the form of a pattern which could be placed on the surface of the goods in question and was therefore not unrelated to the appearance of the goods it covered.
30 First, the ‘furniture, including beds, bedsteads and bedroom furniture; mattresses, spring mattresses, overlay mattress; pillows and down pillows’ in Class 20 and the ‘footwear; headgear’ in Class 25 may be made from fabric or contain fabric parts which may represent the pattern which constitutes the mark applied for.
31 Second, the ‘woven textiles, textile products, not included in other classes; bed linen; down quilts’ in Class 24 and the ‘clothes’ in Class 25 are made from fabric that may bear the pattern which constitutes the mark applied for.
32 Third, the services of ‘marketing, commercial information related to furniture, home furnishing and interior decoration products, textile products, bed linen, bed covers, clothing, footwear and headgear and toys’ in Class 35 may concern the goods in respect of which the mark was applied for, which are made from fabric, may be made from fabric or may contain fabric parts that may represent the pattern which constitutes the mark applied for.
33 It follows that the Board of Appeal correctly found that the mark applied for consisted of a representation of a fabric pattern, in other words the representation of the possible outward appearance of the goods covered by the application for registration, which are fabrics, are made from fabrics or have fabric surfaces.
34 In applying the case-law set out in paragraphs 23 and 24 above, it must be noted that a figurative mark consisting of a part of the shape (or characteristic) of a product cannot be considered to be unrelated to the appearance of the goods covered by the mark.
35 That finding cannot be called into question by the various arguments formulated by the applicant.
36 First, the applicant claims that the trade mark application concerns the two-dimensional figurative sign which is used as a logo on its marketing material and on the labels attached to its products. As EUIPO correctly stated, the mark must be assessed as it was filed, not as it is used. Accordingly, the applicant could have filed the mark applied for as a logo or a label with a frame. However, it is apparent from the application for registration that the applicant filed the mark applied for without adding a description to restrict the scope of the protection to the logo or the label mentioned above and without specifying where the mark might be positioned on its products. As a result, the mark is sought in respect of a scope of protection that covers all possible uses as a figurative mark, including as a pattern applied to the surface of the goods in question, making the case-law cited in paragraphs 23 and 24 above applicable.
37 Second, the applicant takes the view that the Board of Appeal’s assessment that the mark applied for consists of a repeated pattern intended to cover in full or in part some of its goods and is indissociable from the appearance of those goods is incorrect.
38 That argument is the result of a misreading of the contested decision, since the Board of Appeal did not challenge the figurative nature of the mark applied for. Paragraphs 1 and 26 of the contested decision refer to the fact that the application for registration concerns a figurative mark. That is not put into question by the use of the words ‘pattern’ and ‘repeated pattern’ in the contested decision, since those words were used by the Board of Appeal to explain that the sign could be applied as a pattern to the surface of the goods in question and not to hold that it was a ‘pattern mark’. The word ‘pattern’ in paragraph 26 of the contested decision must therefore be understood as ‘the arrangement of coloured and white squares’ comprising that figurative mark.
39 Nevertheless, in paragraph 26 of the contested decision, the Board of Appeal stated that the mark applied for was a simple geometric pattern, namely a square divided into four squares of the same size, of which three are filled with different shades of grey-blue while the fourth is white, and that, since such a pattern may be applied to the surface of the applicant’s textiles, furniture and clothing, the mark applied for did not consist of a sign unrelated to the appearance of the goods it covered. That finding is based on evidence submitted by the applicant to the Board of Appeal, to which the Board of Appeal referred in paragraphs 24 and 25 of the contested decision in order to demonstrate that the mark applied for could be applied to beds, pillows, furniture and clothing. Moreover, as EUIPO stated, it is well known that the chequered pattern may be found on furniture with a textile surface or on textile products, a point which was not disputed by the applicant. There is no doubt that the sign which constitutes the mark applied for may form a pattern for a fabric, particularly if the woven structure, which is visible in the mark, is taken into account.
The significant difference between the mark applied for and the norm or customs of the sector in question
40 By reason of the case-law cited in paragraph 22 above, it is necessary to assess whether the mark applied for differs significantly from the norm or customs of the sector and, accordingly, allows consumers to identify the sign forming the mark applied for as originating from a particular company and therefore to distinguish it from signs originating from other companies.
41 The Board of Appeal found, in paragraph 32 of the contested decision, that the chequered pattern is a basic and commonplace style for fabric, since it is composed of a regular succession of squares of the same size which are differentiated by alternating different colours, in this case grey-blue and white. It deduced from this that the pattern did not contain any notable variation in relation to the conventional representation of a chequered design found everywhere in the field of textiles.
42 The Board of Appeal was fully entitled to find that the mark applied for did not differ significantly from the norm or customs of the sector.
43 In that regard, first, it must be borne in mind that the colours used in the pattern will be perceived by the relevant public as being used for aesthetic purposes or to display the goods and services in question and will not be sufficient, on their own, to distinguish the goods and services of the applicant from those of other undertakings (judgment of 19 September 2012, Fraas v OHIM (Tartan pattern in dark grey, light grey, black, beige, dark red and light red), T‑50/11, not published, EU:T:2012:442, paragraph 66).
44 Second, it must be noted that, graphically, the representation of squares at issue does not contain any notable variation in relation to the conventional representation of such patterns and that, as a result, the relevant public will in fact only perceive a commonplace and everyday pattern (judgment of 19 September 2012, Tartan pattern in dark grey, light grey, black, beige, dark red and light red, T‑50/11, not published, EU:T:2012:442, paragraph 68).
45 Therefore, in view of the goods and services in question and the way in which they are perceived by the relevant public, the mark applied for will not be understood and remembered as an indicator of the commercial origin of those goods and services.
46 Those findings cannot be called into question by the arguments put forward by the applicant. First, the applicant takes the view that the assessment of distinctive character does not depend, in the present case, on whether the mark applied for significantly differs from the norm or customs of the sector, since the mark does not consist of a representation of a part of the product it covers. Accordingly, the Board of Appeal failed to recognise that the mark applied for does not constitute a pattern covering its goods but rather a sign which is not indissociable from the appearance of the goods and services it covers.
47 In that regard it is sufficient to note that the mark applied for is indissociable from the appearance of the goods in question, as is clear from paragraph 29 above. It follows that, pursuant to the case-law cited in paragraphs 22 and 23 above, the Board of Appeal was fully entitled to assess whether the mark applied for significantly differed from the norms and customs of the sector.
48 Second, the applicant claims that, in any event, the mark applied for significantly differs from the norms of the sector because it is unique. It considers that the Board of Appeal was wrong to compare the applicant’s chequered pattern to chequered patterns used by other manufacturers. In its view, the relevant question is whether the applicant’s sign differs from the marks used by other manufacturers in connection with the sale and promotion of beds and similar goods, which it does, since there is no other manufacturer in that sector using similar signs as a logo or as a label attached to its products.
49 Given that the mark applied for is not limited to use as a label or a logo but may be applied to the surface of products, as is apparent from paragraph 36 above, that argument is ineffective.
50 Third, the applicant considers that the Board of Appeal focused on the general use of chequered patterns on the market in the textiles sector when only the perception of the relevant public, namely consumers, is relevant for assessing the distinctive character of the mark applied for.
51 That argument must be rejected, since, under the case-law cited in paragraphs 23 and 24 above, the principles concerning three-dimensional marks consisting of the appearance of the product concerned and, in particular, the standard of significant difference from the norm or customs of the sector are applicable in the present case. The Board of Appeal assessed the distinctive character of the mark applied for in the light of the relevant public’s perception of it, a point which is not contested by the applicant. The fact that the Board of Appeal also relied on its general use on the market in order to assess whether the mark applied for differed significantly from the norm or customs of the sector is not inconsistent with the assessment of the relevant public’s perception. The application of that standard of difference requires the actual market situation to be taken into consideration. As was stated in paragraph 40 above, the Board of Appeal correctly assessed, in paragraph 34 of the contested decision, whether that difference allowed consumers to identify the pattern corresponding to the form of presentation of the mark applied for as originating from a particular company and therefore to distinguish it from patterns originating from other companies.
52 It follows from the foregoing that the Board of Appeal was fully entitled to conclude in paragraph 34 of the contested decision that the mark applied for was devoid of any distinctive character for all the goods and services in question for the purposes of Article 7(1)(b) of Regulation 2017/1001 and, accordingly, the first plea must be rejected as unfounded.
The second plea, alleging infringement of Article 94(1) of Regulation 2017/1001
53 By its second plea, the applicant claims that the Board of Appeal did not correctly assess or provide adequate reasons for its decision as regards the various goods and services in respect of which registration was sought. Merely mentioning the goods does not mean that the Board of Appeal correctly assessed the distinctive character of the mark applied for as regards those various goods and services. In addition, the decision did not allow the applicant to understand fully why the mark was devoid of any distinctive character in respect of all of the goods and services in question.
54 First of all, it is necessary to distinguish the obligation to state reasons, as an essential procedural requirement, from the review of the merits of the reasons stated, which falls within the review of the act’s substantive legality and requires the Court to determine whether the grounds on which the act is founded are vitiated by an error (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraphs 66 to 68 and the case-law cited).
55 Moreover, it must be recalled that, under Article 94 of Regulation 2017/1001, decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. That obligation has two purposes: (i) to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights, and, (ii) to enable the Courts of the European Union to exercise their power to review the legality of the decision. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect judgment of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65).
56 As regards the obligation to state reasons in the context of the assessment of distinctive character, it must be recalled that, according to the Court’s case-law, first, the examination of the absolute grounds for refusal must be carried out in relation to each of the goods or services for which trade mark registration is sought and, secondly, the decision by which the competent authority refuses registration of a mark must, in principle, state reasons in respect of each of those goods or services (judgment of 15 February 2007, BVBA Management, Training en Consultancy, C‑239/05, EU:C:2007:99, paragraph 34, and order of 18 March 2010, CFCMCEE v OHIM, C‑282/09 P, EU:C:2010:153, paragraph 37).
57 However, as regards the latter requirement, the Court has stated that the competent authority may use only general reasoning for all of the goods and services concerned where the same ground for refusal is given for a category or group of goods or services (judgments of 15 February 2007, BVBA Management, Training en Consultancy, C‑239/05, EU:C:2007:99, paragraph 37, and of 17 October 2013, Isdin v Bial-Portela, C‑597/12 P, EU:C:2013:672, paragraph 26).
58 The Court then made clear that such a power extends only to goods and services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services (judgment of 17 October 2013, Isdin v Bial-Portela, C‑597/12 P, EU:C:2013:672, paragraph 27).
59 In order to determine whether the goods and services covered by an application for registration of an EU mark are interlinked in a sufficiently direct and specific way and can be placed in sufficiently homogenous categories or groups, account must be taken of the fact that the objective of that exercise is to enable and facilitate the assessment in concreto of the question whether or not the mark concerned by the application for registration comes under one of the absolute grounds for refusal (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 32).
60 Accordingly, the placement of the goods and services in question in one or more groups or categories must be carried out, in particular, on the basis of the characteristics which are common to them and which are relevant for the analysis of whether or not a specific absolute ground for refusal may apply to the mark applied for in respect of those goods and services. It follows that such an assessment must be carried out in concreto for the examination of each application for registration and, as the case may be, for each of the different absolute grounds for refusal which may apply (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 33).
61 It is clear from the foregoing considerations that it is not inconceivable a priori that the goods and services covered by an application for registration all present a relevant characteristic for the analysis of an absolute ground for refusal and that they can be placed, for the purposes of examining the application for registration at issue in relation to that absolute ground for refusal, in a sufficiently homogenous single category or group (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 34).
62 For the purpose of analysing the homogeneous nature of the goods and services in question, it is necessary to take into account the specificity of the mark applied for and, in particular, its perception by the relevant public (see, to that effect, judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 40).
63 First, in the light of the case-law cited in paragraph 54 above, it should be noted that, by its complaint alleging a defective statement of reasons, the applicant seeks, in actual fact, to dispute the merits of the decision as regards the lack of distinctive character of the mark applied for in relation to the various goods and services covered by that mark. In any event, clearly, pursuant to the case-law set out in paragraph 55 above, the reasons given in the contested decision enabled the interested parties to ascertain the reasons for the measure and therefore defend their rights, as is apparent from the arguments put forward by the applicant in its application and, moreover, enabled the EU Courts to review the legality of the decision, as is clear from the analysis in paragraphs 26 to 52 above. As a result, the reasons given for the contested decision as regards the assessment of the distinctive character of the mark applied for must be held to be sufficient.
64 Second, in so far as the applicant seeks to call into question the recourse to general reasoning that does not distinguish between the various goods and services in question, given that the latter are sufficiently homogeneous, on account of the common characteristic concerning the fact that it is possible to place decorative patterns on the goods in question, which are made from fabric, and on account of the fact that the services in question relate to those goods, the recourse to general reasoning was justified under the case-law set out in paragraphs 56 to 62 above.
65 Therefore, the second plea in law, alleging infringement of Article 94(1) of Regulation 2017/1001, must be rejected.
The third plea, alleging infringement of Articles 94(1) and 95(1) of Regulation 2017/1001
66 By its third plea, the applicant claims that the Board of Appeal should have questioned it in order to find out whether the registration was sought in order to protect the use of a three-dimensional pattern given that, in fact, it was not given the possibility to clarify that the mark applied for was not intended for a use other than that for which registration was requested.
67 As a preliminary point, it should be noted that Article 94(1) of Regulation 2017/1001 states:
‘Decisions of the Office shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.’
68 It follows from Article 95(1) of Regulation 2017/1001 that:
‘In proceedings before it the Office shall examine the facts of its own motion … In invalidity proceedings pursuant to Article 59, the Office shall limit its examination to the grounds and arguments submitted by the parties.’
69 In that regard, it is sufficient to note that, as was stated in paragraph 36 above, the mark must be assessed as it was filed, not as it is used. If the applicant had wished to restrict the scope of the protection of the mark, it should have done that in its application for registration.
70 Since the application for registration contained no details as regards the nature of the mark applied for, not least that the protection was to cover the use of the mark only as a logo or label with a border, the applicant cannot complain that EUIPO did not ask it whether it wished to restrict the scope of the protection of the mark as it was applied for.
71 The Board of Appeal assessed the mark applied for as a two-dimensional figurative mark, which also includes protection of the mark when it is applied to the surface of the goods in question, as is apparent from paragraph 36 above. It did not take into account any area of protection beyond that which the application requested.
72 Moreover, contrary to the applicant’s claims, the Board of Appeal did not consider that the mark applied for protected use of a ‘three-dimensional pattern’. By contrast, as is apparent from paragraphs 23 and 24 above, the Board of Appeal was fully entitled to apply to the present case the case-law concerning three-dimensional marks consisting of the appearance of the product concerned.
73 As a result, the third plea must be rejected and the action must therefore be dismissed in its entirety.
Costs
74 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.
75 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 (Second Chamber),
hereby:
1. Dismisses the action;
2. Orders Hästens Sängar AB to pay the costs.
Delivered in open court in Luxembourg on 3 December 2019.