Judgment of the General Court (Sixth Chamber) of 4 July 2018 –
Deluxe Entertainment Services Group v EUIPO (deluxe)
(Case T‑222/14 RENV)
(EU trade mark — Application for EU figurative mark deluxe — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) — Obligation to state reasons — Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001))
1. EU trade mark — Procedural provisions — Statement of reasons for decisions — First sentence of Article 75 of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU
(Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence)
(see para. 20)
2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Meaning — Criteria for assessment
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 22, 34, 49)
3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope
(Council Regulation No 207/2009, Arts 7(1) and 75, first sentence)
(see paras 23-29)
4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 35, 36, 48)
5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Distinctive character — Application of specific criteria for assessment — Not permissible
(Council Regulation No 207/2009, Art. 7(1)(b))
(see para. 37)
6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark deluxe
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 41, 47, 57-62)
7. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Trade mark made up of several elements — Possible for the competent authority to examine each of the elements making up the trade mark — Scope of protection of the mark
(Council Regulation No 207/2009, Art. 7(1)(b))
(see para. 45)
8. 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 — Criteria
(Council Regulation No 207/2009, Art. 7(1)(b))
(see paras 51, 56)
9. 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 65-69)
10. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Criteria for assessment
(Council Regulation No 207/2009, Art. 7(3))
(see paras 82-86)
11. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Probative value of the evidence — Criteria for assessment
(Council Regulation No 207/2009, Art. 7(3))
(see para. 91)
Re:
| Action brought against the decision of the Second Board of Appeal of EUIPO of 22 January 2014 (Case R 1250/2013-2), concerning an application for registration of the figurative sign deluxe as an EU trade mark. |
Operative part
The Court:
2. | | Orders Deluxe Entertainment Services Group Inc. to pay the costs. |
2. | | Orders Deluxe Entertainment Services Group Inc. to pay the costs. |