Judgment — ECLI:EU:T:2016:155
Date: 2016-03-17
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

JUDGMENT OF THE GENERAL COURT (Eighth Chamber) 17 March 2016 (*) (Community trade mark — Application for Community word mark IPVanish — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 207/2009) In Case T‑78/15, Mudhook Marketing, Inc., established in Winter Park, Florida (United States), represented by H. Eckermann and A. Dellmeier, 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 4 December 2014 (Case R 1417/2014-2), relating to an application for registration of the word sign IPVanish as a Community trade mark, THE GENERAL COURT (Eighth Chamber), composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges, Registrar: E. Coulon, having regard to the application lodged at the Court Registry on 16 February 2015, having regard to the response lodged at the Court Registry on 27 May 2015, 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 1 On 21 November 2013, the applicant, Mudhook Marketing, Inc., filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). 2 The trade mark in respect of which registration was sought is the word sign IPVanish. 3 The goods and services in respect of which registration was sought are in Classes 9 and 38 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, for each of those classes, to the following description: – Class 9: ‘Virtual private network (VPN) operating software’; – Class 38: ‘Providing virtual private network (VPN) services’. 4 By letter of 29 November 2013, the examiner stated that the application for registration lodged by the applicant must be rejected under Article 7(1)(b) and (c) and (2) of Regulation No 207/2009, on the ground that the word sign IPVanish amounted to a descriptive indication of the goods and services covered by the application and that it was devoid of any distinctive character. Lastly, the examiner requested the applicant to submit its observations pursuant to Article 37(3) of Regulation No 207/2009. 5 By decision of 9 April 2014, the OHIM examiner rejected the application in respect of all of the goods and services mentioned in paragraph 3 above on the basis of Article 7(1)(b) and (2) of Regulation No 207/2009 on the ground that the word sign for which registration was sought was devoid of any distinctive character. 6 On 3 June 2014, the applicant filed a notice of appeal against that decision with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009. 7 By decision of 4 December 2014 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal. It found that the relevant public, namely members of the profession in question and the general public of the European Union with English as their mother tongue or, at least, a basic understanding of English, and a higher-than-average level of attention when purchasing the goods and services covered by the trade mark applied for, will understand the word element ‘ipvanish’, the meaning of which is clear, as a mere promotional message. The Board of Appeal therefore found that the application for registration of the trade mark in question must be rejected pursuant to Article 7(1)(b) of Regulation No 207/2009. Forms of order sought 8 The applicant claims that the Court should: – annul the contested decision; – order OHIM to pays the costs. 9 OHIM contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law 10 In support of its action, the applicant puts forward a single plea in law, alleging infringement of Article 7(1)(b) of Regulation No 207/2009. In particular, it contests the findings of the Board of Appeal concerning, first, the level of attention of the relevant public and, second, the lack of distinctive character of the trade mark applied for. 11 It should be recalled that, under Article 7(1)(b) of Regulation No 207/2009, trade marks which are devoid of any distinctive character are not to be registered. Article 7(2) of that regulation states that Article 7(1) thereof is to apply notwithstanding the fact that the grounds of non-registrability obtain in only part of the European Union. 12 According to case-law, a minimum degree of distinctiveness is sufficient to prevent application of the absolute ground for refusal provided for in Article 7(1)(b) of Regulation No 207/2009 (see judgment of 25 September 2015 in BSH v OHIM (PerfectRoast), T‑591/14, EU:T:2015:700, paragraph 40 and the case-law cited). 13 In addition, according to settled case-law, a trade mark has a distinctive character, within the meaning of Article 7(1)(b) of Regulation No 207/2009, where it allows the good or service in respect of which registration is sought to be identified as originating from a particular undertaking, and thus allows that product or service to be distinguished from those originating from other undertakings (see judgment of 28 April 2015 in Volkswagen v OHIM (EXTRA), T‑216/14, EU:T:2015:230, paragraph 13 and the case-law cited, and order of 24 June 2015 in Wm. Wrigley Jr. v OHIM (Extra), T‑552/14, EU:T:2015:462, paragraph 13 and the case-law cited). 14 In this regard, it should be recalled that the signs lacking distinctive character referred to in Article 7(1)(b) of Regulation No 207/2009 are signs which are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the origin of the goods or services covered by the mark, thus enabling the consumer who acquires those goods or services 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 (see judgment in EXTRA, cited in paragraph 13 above, EU:T:2015:230, paragraph 14 and the case-law cited). 15 The distinctive character of a trade mark must be assessed, first, by reference to the goods or services in respect of which registration of the trade mark has been applied for and, second, reference to its perception by the relevant public, which consists of average consumers of those goods or services, who are reasonably well informed and reasonably observant and circumspect (see judgment of 14 September 2009 in Lange Uhren v OHIM (Geometric shapes on a watch-face), T‑152/07, EU:T:2009:324, paragraph 127 and the case-law cited). 16 In addition, according to case-law, the distinctive character of a composite mark may be assessed, in part, in relation to each of its words or components, considered in isolation, but must, on any view, be based on the overall perception of that trade mark by the relevant public and not on the presumption that components lacking distinctiveness when considered in isolation cannot, once combined, present such a character (see order of 14 May 2012 in Timehouse v OHIM, C‑453/11 P, EU:C:2012:291, paragraph 40 and the case-law cited). 17 As regards marks made up of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded as such by virtue of such use (see judgments of 11 December 2012 in Fomanu v OHIM (Qualität hat Zukunft), T‑22/12, EU:T:2012:663, paragraph 15 and the case-law cited, and judgment in EXTRA, cited in paragraph 13 above, EU:T:2015:230, paragraph 16 and the case-law cited). 18 As regards the assessment of the distinctive character of such marks, the Court of Justice has previously held that it was inappropriate to apply to such marks criteria which are stricter than those applicable to other types of sign (see judgments in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 16 and the case-law cited, and EXTRA, cited in paragraph 13 above, EU:T:2015:230, paragraph 17 and the case-law cited). 19 However, it is apparent from case-law that, while the criteria for the assessment of distinctive character are the same for various categories of marks, it may be that, for the purposes of applying those criteria, the relevant public’s perception is not necessarily the same in relation to each of those categories and that it could therefore prove more difficult to establish distinctive character in relation to marks of certain categories as compared with marks of other categories (see judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 17 and the case-law cited). 20 According to the Court of Justice, it cannot be excluded that that case-law is equally relevant for word marks formed by advertising slogans. The Court of Justice has held that that could be the case, inter alia, if it were established, when assessing the distinctiveness of the trade mark at issue, that it served a promotional function consisting, for example, of commending the quality of the product at issue and that the importance of that function was not manifestly secondary to its purported function as a trade mark, namely that of guaranteeing the origin of the product. In such a case, the authorities may have regard to the fact that the average consumer does not ordinarily presume what the origin of a product is on the basis of such slogans (see judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 18 and the case-law cited). 21 Nevertheless, difficulties in establishing distinctive character that may be associated with certain categories of trade mark because of their very nature, such as those formed by advertising slogans or incitements to purchase the goods or services covered by those marks — difficulties which it is legitimate to take into account — do not justify laying down specific criteria supplementing or derogating from the criterion of distinctiveness as interpreted in the case-law referred to in paragraphs 15 and 16 above (see, to that effect and by analogy, judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 19 and the case-law cited). 22 The Court has also observed that, while it is true that a mark possesses distinctive character only in so far as it serves to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking, the mere fact that a mark is perceived by the relevant public as a promotional formula and that, because of its laudatory nature, it could in principle be used by other undertakings, is not sufficient, in itself, to support the conclusion that that mark is devoid of distinctive character. The laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. Thus, such a mark can be perceived by the relevant public both as a promotional formula and as an indication of the commercial origin of goods or services covered by the mark (see judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 20 and the case-law cited). 23 In that regard, the Court has also made clear that the fact that a mark was understood — perhaps even primarily understood — as a promotional formula had no bearing on its distinctive character provided that, at the same time, the relevant public perceived it as an indication of the commercial origin of the goods or services which it covered (judgment of 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, ECR, EU:C:2012:460, paragraph 32). 24 The Court has, in particular, held that it was not sufficient, in order to find that a mark applied for would not be perceived by the relevant public as an indication of the commercial origin of the goods and services at issue, merely to highlight the fact that that mark consisted of, and was understood as, a promotional formula (see judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 21 and the case-law cited). 25 It follows that, for a finding of lack of distinctive character, it is sufficient for the semantic content of the word sign at issue to indicate to the consumer that a characteristic of the goods or services, whilst not specific, comes from promotional or advertising information which the relevant public will perceive as such, rather than as an indication of the commercial origin of the goods or services (see judgment of 6 June 2013 in Interroll v OHIM (Inspired by efficiency), T‑126/12, EU:T:2013:303, paragraph 25 and the case-law cited). However, according to settled case-law, such a mark must be recognised as distinctive if, apart from its promotional function, it may be perceived immediately by the relevant public as an indication of the commercial origin of the goods or services covered by the mark (see judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 22 and the case-law cited, and judgment in EXTRA, cited in paragraph 13 above, EU:T:2015:230, paragraph 19 and the case-law cited). 26 The arguments raised by the applicant in this action will be examined by the Court in the light of those considerations. 27 The applicant submits, first, that the Board of Appeal did not demonstrate that the trade mark applied for was descriptive of the goods and services covered by that mark. Second, it challenges the finding of the Board of Appeal that the trade mark applied for was devoid of descriptive character on the basis that the word element ‘ipvanish’ would be immediately perceived as a mere promotional message. In particular, even if it were established that the word element ‘ipvanish’ conveyed an objective message, that would not support the conclusion that the mark applied for was devoid of any inherently distinctive character. According to the applicant, that message does not follow obviously from that ‘slogan’, which requires a measure of interpretation on the part of the public, exhibits a certain originality and resonance which makes it easy to remember and, lastly, due to its brevity and conciseness, one which can be easily and instantly memorised. The trade mark applied for is therefore, taken as a whole, inherently capable of being perceived by the relevant public as a distinctive sign. 28 OHIM contests the applicant’s arguments. 29 It must be noted, from the outset, that the Board of Appeal expressly limited its assessment to the ground based on Article 7(1)(b) of Regulation No 207/2009, which, read in conjunction with Article 7(2) of that regulation, precludes the registration of signs devoid of any distinctive character. 30 It follows that the Board of Appeal did not conduct a review on the basis of Article 7(1)(c) of the regulation, which lays down an absolute ground for the refusal to register signs that are descriptive of the goods and services covered by the mark applied for. 31 As the applicant notes in paragraph 12 of its application, it is settled case-law that the absolute grounds for refusal laid down in Article 7(1)(b) and (c) of Regulation No 207/2009 form two independent grounds for refusal to register a trade mark (see judgment in EXTRA, cited in paragraph 13 above, EU:T:2015:230, paragraph 26 and the case-law cited). The applicant’s submissions to the effect that the trade mark applied for is not descriptive and that the Board of Appeal did not demonstrate that it was descriptive must be rejected as ineffective. 32 As regards the elements forming the trade mark applied for, the Board of Appeal found, as did the examiner, that the meaning of the term ‘ip’ was ‘Internet Protocol’ and that that of the term ‘vanish’ was ‘to disappear, especially suddenly or mysteriously, to cease to exist, fade away or to become zero’. In addition, it accepted the meaning of the term ‘vpn’ as submitted by the applicant, namely as an Internet encryption and privacy tool. 33 The Board of Appeal then assessed the distinctive character of the trade mark applied for taken as a whole and found that, in the light of the meaning of the term ‘vpn’ and of that of the terms ‘ip’ and ‘vanish’, the notion conveyed by the sign at issue, in relation to the goods and services covered by it, is that they will somehow achieve or contribute to the disappearance or continuing confidentiality of the user’s internet address. The Board of Appeal thus found that the notion at issue described ‘at least the purpose as well as a desirable quality of the goods and services [at issue]’. In view of the foregoing, it must therefore be found that the applicant’s claim that the Board of Appeal did not give an explanation of the meaning of the expression ‘internet protocol vanish’ is not borne out by the facts. 34 Furthermore, the Board of Appeal found that the meaning of the sign at issue would, immediately and without any further thought, be understood as a promotional message or indication by the relevant public, namely the English-speaking public of the European Union, formed both of professionals and the general public having a higher-than-average level of attention. 35 According to the contested decision, the sign at issue was not found to fall foul of Article 7(1)(b) of Regulation No 207/2009 merely because it conveyed an objective message, but rather because the message it conveyed would be clearly understood as a mere promotional message. As OHIM notes in its response, according to the message conveyed by the trade mark applied for, the goods and services covered by that mark will somehow achieve or contribute to the disappearance of users’ internet addresses or to keeping a user’s internet activity or privacy confidential. 36 The Board of Appeal, lastly, found that the word element ‘ipvanish’ was correctly spelt and was not a lexical invention within the meaning of the judgment of 20 September 2001 in Procter & Gamble v OHIM, (C‑383/99 P, ECR, EU:C:2001:461) and was not perceptibly different from a lexically correct construction within the meaning of the judgment of 9 October 2002 in Dart Industries v OHIM (UltraPlus) (T‑360/00, ECR, EU:T:2002:244). Accordingly, there was nothing in the expression at issue, which is so clearly expressed in everyday language and without any hint of fancifulness or resonance, that might enable the relevant public to memorise it easily and instantly as a distinctive mark for the goods and services covered by it. 37 In the first place, the Court approves the Board of Appeal’s finding that, in view of the meaning of the elements forming the term ‘ipvanish’, that term may be understood as referring to the purpose and, at the very least, a desirable quality of the goods and services covered by the trade mark applied for, which any reasonably well informed and reasonably observant and circumspect person, particularly any such consumer of the goods and services covered by the mark, would be capable of recognising. 38 The same is true, in the second place, of the Board of Appeal’s finding that the message conveyed by the trade mark applied for is clearly expressed in everyday language. As the Board of Appeal in fact stated, there is nothing in the word element ‘ipvanish’, which has no hint of fancifulness or resonance, that might, beyond its basic promotional or laudatory meaning, enable the relevant public to memorise it easily and instantly as a trade mark. Having regard to those elements, it must, in any event, be found, in the light of the case-law cited in paragraph 25 above, that the relevant public will perceive the sign applied for as promotional or advertising information, rather than as an indication of the commercial origin of the goods or services covered by the sign. 39 It is clear, in that regard, that the combination formed by the terms ‘ip’ and ‘vanish’, namely by the abbreviation of a term equivalent to a noun and by a verb, may be considered, in the light of the syntactical, grammatical, phonetic or semantic rules of English, as being ‘grammatically correct’ or ‘syntactically normal’ (see, by analogy, judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 27, and judgment in Inspired by efficiency, cited in paragraph 25 above, EU:T:2013:303, paragraph 30). The combination in question, formulated as an ‘order’ or an ‘invitation’, addressed to the ‘IP’, to ‘disappear’, does not present, at a grammatical or syntactical level, any perceptible difference from the construction of an expression intended to convey the same message and the juxtaposition of the components forming the word element at issue must be considered, in their construction, as normal from a lexical point of view in English (see, to that effect and by analogy, judgment in UltraPlus, cited in paragraph 36 above, EU:T:2002:244, paragraph 47). 40 In that regard, it cannot be considered that the deletion of the space, which should, under the rules of English syntax, separate the two elements forming the sign at issue, will prevent the relevant public from grasping the meaning of the expression in question (see, by analogy, judgment of 3 September 2015 in iNET24 Holding v OHIM (IDIRECT24), T‑225/14, EU:T:2015:585, paragraph 61). The combination of the two terms at issue, which do not have any additional characteristic, without imbuing the whole that they form with any graphic or semantic modification, cannot change the assessment of the sign as being incapable of distinguishing the applicant’s goods and services from those of other undertakings (see, by analogy, judgment of 23 September 2015 in Reed Exhibitions v OHIM (INFOSECURITY), T‑633/13, EU:T:2015:674, paragraph 39 and the case-law cited). 41 Consequently, average consumers will not be misled by the clear promotional message conveyed by the trade mark applied for (see, by analogy, the order in Extra, cited in paragraph 13 above, EU:T:2015:462, paragraph 20), which in fact refers directly to the goods and services covered. The Board of Appeal was therefore fully entitled to find that the relevant public will not perceive the trade mark applied for as a sign intended to distinguish the commercial origin of the goods and services covered. 42 It is true that it has been held that an advertising slogan cannot be required to display ‘imaginativeness’ or even ‘conceptual tension which would create surprise and so make a striking impression’ in order to have the minimal level of distinctiveness required under Article 7(1)(b) of Regulation No 207/2009 (see judgment in EXTRA, cited in paragraph 13 above, EU:T:2015:230, paragraph 18 and the case-law cited). 43 However, the Board of Appeal did not base its assessment solely on the lack of imaginativeness. As is apparent from paragraphs 20 to 28 of the contested decision and from paragraphs 29 to 36 above, the finding of lack of imaginativeness constitutes only one of the elements which the Board of Appeal took into account for the purpose of its assessment. 44 In that regard, it must also be noted that the applicant has not put forward, either in the proceedings before OHIM or before the Court, any evidence relating to the perception by the relevant public of the trade mark applied for. 45 Furthermore, it cannot be considered that the finding relating to the lack of distinctiveness of the trade mark applied for is incompatible with the principle referred to in the judgment of 21 January 2010 in Audi v OHIM (C‑398/08 P, ECR, EU:C:2010:29, paragraph 45), on which the applicant relies in the present case, and in the case-law cited in paragraph 22 above. According to that principle, if the relevant public perceives the mark at issue as an indication of the same commercial origin, the fact that the mark is at the same time understood — perhaps even primarily understood — as a promotional formula has no bearing on its distinctive character (see, by analogy, judgment of 13 January 2011 in Media-Saturn-Holding v OHIM, C‑92/10 P, EU:C:2011:15, paragraph 52). 46 It is clear from the contested decision that the Board of Appeal did not limit itself to highlighting the fact that the trade mark applied for was composed of a promotional message and understood as such by the relevant public. As is clear from paragraphs 32 and 33 above, it conducted a detailed assessment of the constituent elements of the trade mark applied for, as well as of the trade mark as a whole, in order to gauge the relevant public’s perception of the trade mark for the goods and services covered. Following that assessment, as observed in paragraph 41 above, the Board of Appeal found that the word element ‘ipvanish’ was not capable of constituting an indication of the commercial origin of the goods and services which it covers. It did not therefore limit itself to finding that the trade mark applied for was a mere promotional formula, even though, in paragraph 29 of the contested decision, it found that the relevant public would immediately perceive the promotional message conveyed by the word element at issue (see, by analogy, judgment in Qualität hat Zukunft, cited in paragraph 17 above, EU:T:2012:663, paragraph 32). 47 Consequently, in view of the foregoing, the Board of Appeal did not err in law in finding that the trade mark applied for was devoid of a sufficient degree of distinctiveness for the English-speaking public. 48 Nevertheless, the applicant claims that the Board of Appeal’s assessment was based on an erroneous premiss that the relevant public, which is — a point not contested by the applicant — formed of both professionals and the English-speaking general public of the European Union, had a higher-than-average, or even high, level of attention when purchasing the goods and services covered by the trade mark applied for. The applicant claims, in particular, that the use of the technologies to which all the products concerned relate is common, widespread and everyday and that the Board of Appeal was not entitled in law to base its decision solely on their relatively specialised nature. Lastly, according to the applicant, the Board of Appeal was not entitled to find that that higher-than-average, or even high, level of attention allowed the average consumer to understand more easily the meaning conveyed by the sign at issue and to link it to the goods and services covered. 49 According to case-law, the relevant public’s perception of trade marks is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (judgments of 22 June 1999 in Lloyd Schuhfabrik Meyer, C‑342/97, ECR, EU:C:1999:323, paragraph 26, and 3 December 2003 in Nestlé Waters France v OHIM (Shape of a bottle), T‑305/02, ECR, EU:T:2003:328, paragraph 34). 50 As regards that part of the relevant public formed by average consumers, it cannot be excluded that, as OHIM submits, their level of attention may be generally higher than average as far as concerns goods and services which are relatively complex from a technical point of view such as, inter alia, IT goods and services (see, to that effect and by analogy, judgment of 21 November 2013 in Equinix (Germany) v OHIM — Acotel (ancotel.), T‑443/12, EU:T:2013:605). However, for the purpose of the assessment of the level of attention of the relevant public when purchasing that type of goods and services, regard must also be had to other factors. It is necessary to assess whether the purchase of such goods or services constitutes a significant financial investment (see, to that effect, judgment of 3 December 2015 in TrekStor v OHIM — Scanlab (iDrive), T‑105/14, EU:T:2015:924, paragraph 37) and whether the consumer is called on to purchase those goods and services regularly or frequently (see, to that effect and by analogy, judgment of 12 February 2015 in Compagnie des montres Longines, Francillon v OHIM — Staccata (QUARTODIMIGLIO QM), T‑76/13, EU:T:2015:94, paragraph 34 and the case-law cited). 51 In addition, as OHIM states in its response, it has been held that the level of attention of the relevant public may be relatively low with regard to statements of a promotional nature, whether an average end consumer is at issue or a generally more attentive public consisting of specialists or informed consumers (see judgments of 17 January 2013 in Solar-Fabrik v OHIM (Premium XL and Premium L), T‑582/11 and T‑583/11, EU:T:2013:24, paragraph 28 and the case-law cited, and of 29 January 2015 in Blackrock v OHIM (INVESTING FOR A NEW WORLD), T‑59/14, EU:T:2015:56, paragraph 27 and the case-law cited). 52 It must be noted that the contested decision does not refer to all of the factors mentioned in paragraph 50 above. Nevertheless, and even assuming that the Board of Appeal ought to have had regard to the case-law cited in paragraph 51 above, that is not capable in the present case of calling into question its assessment regarding the lack of distinctive character of the mark applied for. As the Board of Appeal was entitled to state in paragraph 26 of the contested decision, the message conveyed by the trade mark applied for is clear and, consequently, a reasonably well informed and reasonably observant and circumspect average consumer does not require further reflection to understand it immediately (judgment in Premium XL and Premium L, cited in paragraph 51 above, EU:T:2013:24, paragraph 28). Consequently, the relevant public will understand the promotional message conveyed by the trade mark applied for, even it if were the case that, contrary to the assertion of the Board of Appeal, that public, as a whole, had a relatively low level of attention. 53 Accordingly, it must be found that the Board of Appeal’s findings concerning the lack of distinctiveness of the trade mark applied for could not have been any different had the Board of Appeal found that the level of attention of the relevant public was relatively low and the applicant’s line of argument must therefore be rejected (see, by analogy, judgment in INVESTING FOR A NEW WORLD, cited in paragraph 51 above, EU:T:2015:56, paragraph 28). 54 In the light of all the foregoing, the single plea in law put forward by the applicant must be rejected and, consequently, the action must be dismissed in its entirety. Costs 55 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 (Eighth Chamber), hereby: 1. Dismisses the action. 2. Orders Mudhook Marketing, Inc. to pay the costs. Gratsias Kancheva Wetter Delivered in open court in Luxembourg on 17 March 2016. [Signatures] * Language of the case: English.