ORDER OF THE GENERAL COURT (Sixth Chamber)
31 May 2021 (*)
(EU trade mark – International registration designating the European Union – Word mark Royal Bavarian Beer – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EU) 2017/1001 – Right to be heard – Article 94(1) of Regulation 2017/1001 – Unitary character of the EU trade mark – Article 1(2) of Regulation 2017/1001 – Action manifestly lacking any foundation in law)
In Case T‑332/20,
König Ludwig International GmbH & Co. KG, established in Geltendorf (Germany), represented by O. Spuhler and J. Stock, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Palmero Cabezas, acting as Agent,
defendant,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 1 April 2020 (Case R 1714/2019-4), relating to the international registration designating the European Union in respect of the word mark Royal Bavarian Beer,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, J. Schwarcz and R. Norkus (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 29 May 2020,
having regard to the response lodged at the Court Registry on 5 September 2020,
makes the following
Order
Background to the dispute
1 On 11 January 2018, the applicant, König Ludwig International GmbH & Co. KG, designated the European Union for international registration No 1384147. That registration was notified to the European Union Intellectual Property Office (EUIPO) pursuant to 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 trade mark that is the subject of the international registration designating the European Union is the word sign Royal Bavarian Beer.
3 The goods in respect of which protection has been sought are in Class 32 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 to the following description: ‘Non-alcoholic fruit juice beverages; non-alcoholic beverages; cider, non-alcoholic; beer; beer wort; extracts of hops for making beer; ginger beer; malt beer; malt wort’.
4 By decision of 12 June 2019, the examiner rejected the application for registration of that mark on the basis, inter alia, of Article 7(1)(b) and (c) of Regulation 2017/1001.
5 On 5 August 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the examiner’s decision.
6 By decision of 1 April 2020 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal.
7 In the first place, the Board of Appeal found that the mark applied for, taken as a whole, was a grammatically correct and immediately understandable expression, which informed the consumer that the goods in question were of superior quality and had a particular geographical origin. Therefore, the Board of Appeal found that the mark applied for was descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001.
8 In the second place, the Board of Appeal held that the relevant public would perceive the mark applied for as a promotional statement which did not enable the commercial origin of the goods concerned to be distinguished, with the exception of their geographical origin, and that, even in that regard, the mark remained devoid of distinctive character. As regards the applicant’s arguments relating to the monarchy in Bavaria (Germany), the rights of members of the Wittelsbach family to bear certain titles or designations, and to national marks containing references to the Bavarian monarchy and to beer, the Board of Appeal found that they were ineffective. Accordingly, the Board of Appeal held that the mark applied for was also devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001.
Forms of order sought
9 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs.
10 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
11 Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
12 In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings, even though one of the parties – in this case the applicant – has requested a hearing (see, to that effect, judgment of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraphs 22 to 24, and order of 3 May 2018, Siberian Vodka v EUIPO – Schwarze und Schlichte (DIAMOND ICE), T‑234/17, not published, EU:T:2018:259, paragraph 14).
13 In support of its action, the applicant puts forward four pleas in law, alleging (i) infringement of the right to be heard, (ii) infringement of Article 7(1)(c) of Regulation 2017/1001, (iii) infringement of Article 7(1)(b) of that regulation, and (iv) infringement of Article 1(2) of that regulation.
The first plea in law, alleging infringement of the right to be heard
14 By its first plea, the applicant claims, in essence, that the Board of Appeal infringed its right to be heard within the meaning of Article 94(1) of Regulation 2017/1001, in so far as it assessed the understanding that trade circles have of the monarchy in Germany and in particular in Bavaria, instead of basing its decision on the facts and evidence as submitted by the applicant.
15 The applicant submits that the Board of Appeal did not take into account, in particular, the importance of the Bavarian Royal Family, its legal position and the links between the applicant and that family and, therefore, did not correctly assess the understanding of the mark applied for by the trade circles concerned as well as the distinctive and non-descriptive character of that mark.
16 According to the applicant, the trade circles referred to, in particular in Bavaria, naturally assume that the expression ‘Royal Bavarian’ refers to a still existing and active Bavarian Royal Family and therefore understand that expression as an indication of the origin of the goods. Due to the long-standing relationship between the House of Wittelsbach and beer, the understanding of the Bavarian Royal Family as guarantors of quality and tradition applies in particular to beer. Thus, EU trade circles automatically assume that the expression ‘Royal Bavarian Beer’ is a reference only to the Bavarian Royal Family and the provenance of goods under the responsibility of that family and its companies.
17 Finally, the applicant claims that it is a company belonging to the Bavarian Royal Family, its partner and managing director being a prince of the line of descent of the last Bavarian king. The applicant is therefore the only company in the world authorised to designate its goods and services as ‘Royal Bavarian Beer’, and other companies can do so only with the applicant’s consent. This is also confirmed by the fact that the applicant is the proprietor of various marks containing the terms ‘Royal Bavarian Beer’ or ‘Königlich Bayerisches Bier’. The mark applied for is therefore a clear indication that the goods in question come from a single company, namely the applicant.
18 EUIPO disputes the applicant’s arguments.
19 According to the second sentence of Article 94(1) of Regulation 2017/1001, EUIPO’s decisions are to be based only on reasons on which the parties concerned have had an opportunity to present their comments. That provision enshrines the general principle of protection of the rights of the defence in the law on EU trade marks.
20 According to that general principle of EU law, a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity to make his or her point of view known (see judgment of 15 September 2005, Citicorp v OHIM (LIVE RICHLY), T‑320/03, EU:T:2005:325, paragraph 22 and the case-law cited).
21 In the present case, it is necessary to ascertain whether the Board of Appeal’s reasoning, which differs from that of the applicant, constitutes reasons on which the applicant did not have an opportunity to present its comments.
22 It should be noted that the applicant had submitted its arguments relating to the alleged links between it and the Bavarian Royal Family first of all before the examiner. It then restated those arguments in its statement setting out the grounds of appeal before the Board of Appeal. It is clear from, inter alia, paragraphs 9, 21, 32, 47 and 48 to 59 of the contested decision that the applicant’s arguments in that regard were examined and rejected. In addition, to the extent that the Board of Appeal’s decision merely reproduces the examiner’s decision so far as those arguments are concerned, the applicant must be regarded as having had an opportunity to present its comments on those arguments when it appealed against the examiner’s decision (see, to that effect, judgment of 15 September 2005, LIVE RICHLY, T‑320/03, EU:T:2005:325, paragraph 24).
23 Moreover, although the right to be heard, as laid down by Article 94(1) of Regulation 2017/1001, covers all the factual and legal evidence which forms the basis for the act of making the decision, it does not apply to the final position which the administration intends to adopt (see judgment of 20 April 2005, Krüger v OHIM – Calpis (CALPICO), T‑273/02, EU:T:2005:134, paragraph 65 and the case-law cited). Accordingly, since the assessment in question falls within the final position of the Board of Appeal, the latter was not required to hear the applicant concerning it.
24 Accordingly, the first plea in law must be rejected as being manifestly unfounded.
The second plea in law, alleging infringement of Article 7(1)(c) of Regulation 2017/1001
25 By its second plea, the applicant submits that the Board of Appeal erred in finding that the mark applied for was descriptive and not a clear and direct indication of the commercial origin of the goods at issue.
26 According to the applicant, trade circles both in Germany and in the other Member States of the European Union understand the expression ‘Royal Bavarian Beer’ in its literal sense, namely a beer with a royal Bavarian origin and, consequently, as being a product of the applicant. Furthermore, that expression can be used only by the Bavarian Royal Family or by third parties to whom the latter has granted a licence.
27 The applicant complains that the Board of Appeal examined the mark applied for in an excessively detailed manner by arbitrarily dividing its elements into ‘royal’ and ‘bavarian beer’. It submits that the Board of Appeal incorrectly assumed that the relevant public will understand the element ‘royal’ as a reference to the quality of the goods in question, since that means that that public should analyse the adjective ‘royal’ and look for its possible connotations.
28 The applicant submits that such an analysis is, moreover, contrary to the practice of EUIPO, which has already registered marks containing the element ‘royal’. That shows that the term ‘royal’ does not necessarily give the mark concerned descriptive character, which is particularly true where the level of attention is low, as in the present case. According to the applicant, in such a case, the relevant public focuses on the most obvious meaning of the term ‘royal’, namely ‘having the status of, or owned by, a king or queen or a member of their family’. Given that the goods in question, like the applicant itself, belong to a member of the Bavarian Royal Family, the trade circles concerned would not assume that that term had a laudatory meaning, but rather that it referred to ‘Bavarian’ and therefore to the Bavarian Royal Family.
29 According to the applicant, Royal Bavarian Beer is therefore a mark which designates the special quality, distinction, reputation and origin of the goods, referring directly to the applicant and the House of Wittelsbach. The fact that that is how the trade circles concerned would understand the mark applied for is also borne out by the existence of marks containing the expression ‘Royal Bavarian Beer’ registered by the German Patent and Trade Mark Office and the United Kingdom Intellectual Property Office.
30 Finally, the applicant claims that, under the German law on unfair competition, the use of the expression ‘the Royal Bavarian’ by a company not belonging to the Bavarian Royal Family is misleading where the latter has not consented to such use. Consequently, the mark applied for may only be used and registered by the applicant and all the trade circles in the European Union understand the mark as a reference to the Bavarian Royal Family and to its business, namely the applicant.
31 EUIPO disputes the applicant’s arguments.
32 Under Article 7(1)(c) of Regulation 2017/1001, 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 are not to be registered. Under Article 7(2) of that regulation, Article 7(1) is to apply notwithstanding that the grounds of non-registrability obtain in only part of the Union.
33 Those signs or indications are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services (judgment of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 37).
34 Article 7(1)(c) of Regulation 2017/1001 prevents the signs or indications referred to therein from being reserved to one undertaking alone because they have been registered as trade marks. That provision thus pursues an aim in the public interest, which requires that such signs or indications may be freely used by all (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31; of 27 February 2002, Ellos v OHIM (ELLOS), T‑219/00, EU:T:2002:44, paragraph 27; and of 7 July 2011, Cree v OHIM (TRUEWHITE), T‑208/10, not published, EU:T:2011:340, paragraph 12).
35 Moreover, signs or indications which may serve, in trade, to designate characteristics of the goods or service in respect of which registration is sought are, by virtue of Article 7(1)(c) of Regulation 2017/1001, regarded as incapable of performing the essential function of a trade mark. That function is to identify the commercial origin of the goods or service, thus enabling the consumer who acquires the goods or service designated by the mark to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 8 May 2019, Battelle Memorial Institute v EUIPO (HEATCOAT), T‑469/18, not published, EU:T:2019:302, paragraph 19).
36 It follows that, for a sign to fall within the scope of the prohibition in Article 7(1)(c) of Regulation 2017/1001, there must be a sufficiently direct and specific relationship between the sign and the goods and services in question to enable the relevant public immediately to perceive, without further thought, a description of the goods and services in question or one of their characteristics (see judgments of 12 January 2005, Deutsche Post EURO EXPRESS v OHIM (EUROPREMIUM), T‑334/03, EU:T:2005:4, paragraph 25 and the case-law cited, and of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 25 and the case-law cited).
37 Accordingly, a sign’s descriptiveness cannot be assessed other than by reference to the goods or services concerned, on the one hand, and by reference to the understanding which the relevant persons have of it, on the other (see judgment of 25 October 2005, Peek & Cloppenburg v OHIM (Cloppenburg), T‑379/03, EU:T:2005:373, paragraph 37 and the case-law cited).
38 It is in the light of those considerations that it must be examined whether, as the applicant claims, the Board of Appeal infringed Article 7(1)(c) of Regulation 2017/1001.
39 In the first place, as regards the definition of the relevant public, the Board of Appeal found, in paragraph 19 of the contested decision, that the mark applied for consisted exclusively of word elements belonging to standard English vocabulary, that it was understood in most Member States, in particular in the Scandinavian countries, in the Benelux, Germany and Austria, and that only a limited command of that language was necessary in order to understand the meaning of the word elements in question. Accordingly, the Board of Appeal held that the relevant public consisted of consumers in those Member States, in addition to those in the Member States in which English was the mother tongue, namely Ireland, Malta and the United Kingdom.
40 The applicant does not dispute those assessments of the Board of Appeal. Moreover, there is no evidence in the file capable of casting doubt on those assessments.
41 In the second place, it should be noted that the Board of Appeal found, in paragraphs 30 to 36 of the contested decision, that the meaning of the term ‘beer’ was clear and that the term ‘Bavarian’ described the geographical origin of that product, namely Bavaria. Furthermore, since ‘Bayerisches Bier’ (Bavarian beer) is an indication of origin protected under Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), beer must be brewed in Bavaria in order to meet that designation.
42 As regards the term ‘royal’, the Board of Appeal, relying on the online version of the Cambridge dictionary, found that it could have two meanings. On the one hand, it may have the meaning of ‘good or excellent, or as if intended for or typical of royalty’. On the other, it may mean ‘having the status of, or owned by, a king or queen or a member of their family’. On the basis that at least one of the meanings of that term designates a characteristic of the goods concerned, the Board of Appeal found that it was descriptive in that it stated that the goods at issue were of superior quality.
43 The Board of Appeal therefore concluded that the mark applied for, taken as a whole, informed consumers that the goods in question, namely beer or goods which contain beer or look like beer, had as their geographical origin Bavaria and were of superior quality.
44 The applicant does not dispute the Board of Appeal’s assessments concerning the terms ‘beer’ and ‘Bavarian’ and the possible meanings of the term ‘royal’. However, it criticises the Board of Appeal’s finding that the latter term was descriptive.
45 In that regard, the applicant submits in essence that, because of its particular status, in so far as it is operated by a member of the Bavarian Royal Family, the trade circles referred to understand the mark applied for in the sense that it designates beer of royal Bavarian origin and therefore a product of the applicant.
46 First, it should be noted that the applicant, the holder of the international registration designating the European Union, is a legal person governed by German law and not a natural person having the status of a member of the Bavarian Royal Family. It should also be noted that the applicant has not produced any evidence, such as opinion surveys, in order to establish that the relevant public, in particular in Member States other than Germany, would perceive the mark applied for as designating goods produced by it because it was operated by a member of the Bavarian Royal Family. As EUIPO correctly submits in paragraph 32 of the response, it cannot be assumed that the relevant public knows the name of the applicant’s managing director and its family relations.
47 As regards, in particular, the applicant’s argument that it is the only party able to use the mark applied for, it should be noted that the exclusivity of the use of a sign cannot mean that that sign should automatically benefit from registration as an EU trade mark. The fact that use of the sign is reserved for a single economic operator is irrelevant in the assessment of the intrinsic descriptive character of the sign concerned, since it has no effect on the relevant public’s perception and understanding of that sign (judgment of 24 September 2019, Crédit Mutuel Arkéa v EUIPO – Confédération nationale du Crédit mutuel (Crédit Mutuel), T‑13/18, EU:T:2019:673, paragraph 63).
48 Consequently, the applicant’s arguments alleging possible links that may exist between its managing director and the Bavarian Royal Family must be rejected.
49 Second, it should be noted that the mark applied for consists of three words which are part of standard English vocabulary. According to the grammatical rules of that language, in a linguistic construction such as ‘Royal Bavarian Beer’, the terms ‘royal’ and ‘Bavarian’ are adjectives qualifying the noun ‘beer’ and serve to indicate a quality or characteristic of what is designated by the latter. Furthermore, as the Board of Appeal correctly found in paragraph 32 of the contested decision, the two adjectives describe a noun which designates a product and not a person.
50 However, in view of the goods in respect of which registration was sought, namely beer or goods which contain beer, look like beer or may be mixed with it, the meaning identified by the Board of Appeal is manifestly correct. The sign in question enables the relevant public to discern immediately and without further reflection that the goods at issue are manufactured in Bavaria and that they have a quality befitting a royal family. That understanding of the mark applied for by the relevant public is also confirmed by the applicant when it submits, in paragraph 57 of the application, that Royal Bavarian Beer is, inter alia, a trade mark which designates the special quality, distinction and reputation of the goods.
51 As regards the applicant’s arguments that the mark applied for would be perceived by the relevant public as a distinctive sign enabling the commercial origin of the goods at issue to be identified, it must be stated that they fall within the scope of Article 7(3) of Regulation 2017/1001, and not Article 7(1)(c) of that regulation, given that their analysis requires an assessment of the qualities which the mark applied for could have acquired through its use by the relevant public, with the result that it would identify the goods in question as originating from the applicant. Such an argument cannot therefore be taken into account in the assessment of the inherent descriptive character (see, to that effect, judgment of 24 September 2019, Crédit Mutuel, T‑13/18, EU:T:2019:673, paragraph 62).
52 Furthermore, it must be borne in mind that, according to settled case-law, in order for EUIPO to refuse to register a trade mark under Article 7(1)(c) of Regulation 2017/1001, it is sufficient that the signs and indications composing the mark applied for may be used in a way that is descriptive of goods or services or of characteristics of those goods or services. A word sign must therefore be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32; see also judgment of 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, EU:T:2011:158, paragraph 50 and the case-law cited).
53 Accordingly, the Board of Appeal was correct in finding that the mark at issue was descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001.
54 As regards the applicant’s argument that the term ‘royal’ is not descriptive given that EUIPO has already registered other trade marks containing that term, it should be borne in mind that 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).
55 The applicant cannot therefore criticise the Board of Appeal for having based the contested decision on Regulation 2017/1001, as interpreted by the EU Courts, rather than on allegedly comparable decisions of the Boards of Appeal of EUIPO or on EUIPO’s previous practice in relation to registration of an EU trade mark.
56 It also follows from the case-law that EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law. Although, having regard to the principles of equal treatment and sound administration, EUIPO must take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not, the way in which those principles are applied must however be consistent with the principle of 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 to the benefit of someone else (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 76, and of 21 March 2014, FTI Touristik v OHIM (BigXtra), T‑81/13, not published, EU:T:2014:140, paragraph 52).
57 Moreover, for reasons of legal certainty and 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 (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77, and of 9 March 2017, Maximum Play v EUIPO (MAXPLAY), T‑400/16, not published, EU:T:2017:152, paragraph 49).
58 In the present case, the EU trade mark application submitted by the applicant is caught by one of the grounds for refusal set out in Article 7(1) of Regulation 2017/1001. In so far as it has been held in paragraph 53 above that the Board of Appeal had been right to find that the registration of the mark applied for in respect of the goods in question was incompatible with that regulation, the applicant cannot successfully rely on EUIPO’s previous decision-making practice in order to invalidate that finding.
59 Consequently, the second plea in law must be rejected as being manifestly unfounded.
The third plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
60 It must be borne in mind that, as is clear from Article 7(1) of Regulation 2017/1001, it is sufficient for one of the absolute grounds for refusal to apply for a sign to be ineligible for registration as an EU trade mark (judgments of 14 June 2001, Telefon & Buch v OHIM (UNIVERSALTELEFONBUCH and UNIVERSALKOMMUNIKATIONSVERZEICHNIS), T‑357/99 and T‑358/99, EU:T:2001:162, paragraph 35, and of 12 March 2019, Perry Ellis International Group v EUIPO (PRO PLAYER), T‑220/16, not published, EU:T:2019:159, paragraph 50).
61 Consequently, since, as is apparent from paragraph 53 above, the Board of Appeal was correct in finding that the sign in question was descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001, it is not necessary, in the present case, to examine the merits of the third plea in law, alleging infringement of Article 7(1)(b) of that regulation (judgment of 19 September 2002, DKV v OHIM, C‑104/00 P, EU:C:2002:506, paragraphs 28 and 29; order of 13 February 2008, Indorata-Serviços e Gestão v OHIM, C‑212/07 P, not published, EU:C:2008:83, paragraph 28, and judgment of 12 March 2019, PRO PLAYER, T‑220/16, not published, EU:T:2019:159, paragraph 51).
The fourth plea in law, alleging infringement of Article 1(2) of Regulation 2017/1001
62 By its fourth and last plea in law, the applicant submits that, by finding, in paragraph 49 of the contested decision, that its arguments relating to the fact that none of its competitors are authorised to use the mark applied for were irrelevant, the Board of Appeal infringed the principle of the unitary character of the EU trade mark laid down in Article 1(2) of Regulation 2017/1001. Furthermore, the applicant reiterates its argument that it is the only party able to apply for registration of the mark Royal Bavarian Beer, since it alone may use such an indication of commercial origin.
63 EUIPO disputes the applicant’s arguments.
64 It should be noted that, in accordance with the principle, enshrined in Article 1(2) of Regulation 2017/1001, according to which the EU trade mark has a unitary character, that mark is acquired by means of one procedural system, is given uniform protection and is to have effect throughout the entire area of the European Union. However, that principle does not require a mark which has been registered in one or several Member States to be registered at EU level. Nor does it require that a sign which, under the legislation applicable in a Member State, may be used by a single legal or natural person automatically be protected as an EU trade mark.
65 Furthermore, in accordance with settled case-law, the EU trade mark regime is an autonomous system which applies independently of any national system. Consequently, the registration of an EU trade mark does not replace its registration at national level, in one or more Member States. The EU trade mark system coexists with that obtaining in each of the Member States (see judgment of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraph 59 and the case-law cited).
66 It follows that the fourth plea in law must be rejected as being manifestly unfounded.
67 In the light of the foregoing, the action must be dismissed in its entirety as manifestly lacking any foundation in law.
Costs
68 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
69 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 (Sixth Chamber)
hereby orders:
1. The action is dismissed as manifestly lacking any foundation in law.
2. König Ludwig International GmbH & Co. KG shall pay the costs.
Luxembourg, 31 May 2021.