Information;Judgment — ECLI:EU:T:2022:673
Date: 2022-10-26
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary manner. Moreover, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (see judgment of 29 May 2018, Sata v EUIPO – Zhejiang Rongpeng Air Tools (2000), T‑301/17, not published, EU:T:2018:311, paragraph 67 and the case-law cited). 95 Further, the question as to whether a statement of reasons satisfies those requirements is to be assessed by reference not only to its wording but also to its context and to the whole body of legal rules governing the matter in question. Thus, when EUIPO refuses registration of a sign as an EU trade mark, it must, in order to state the reasons for its decision, indicate the ground for refusal, absolute or relative, which precludes that registration and the provision from which that ground is drawn, and set out the facts which it found to be proved and which, in its view, justify application of the provision relied on (see, to that effect, judgment of 27 January 2021, Turk Hava Yollari v EUIPO – Sky (skylife), T‑382/19, not published, EU:T:2021:45, paragraph 22 and the case-law cited). Such a statement of reasons is, in principle, sufficient to satisfy the requirements referred to in paragraph 91 above (see judgment of 19 December 2019, Nosio v EUIPO (BIANCOFINO), T‑54/19, not published, EU:T:2019:893, paragraph 17 and the case-law cited). 96 In the present case, it is apparent from paragraphs 71 to 74 of the contested decision that the Board of Appeal drew a conclusion, preceded by a detailed analysis, in respect of all the goods and services in question as regards the application of Article 7(1)(c) of Regulation 2017/1001. Next, in paragraphs 86 to 95 of the contested decision, the Board of Appeal examined the application of Article 7(1)(b) of Regulation 2017/1001. Lastly, in paragraphs 96 to 113 of the contested decision, the Board of Appeal set out the reasons why it took the view that Article 7(3) of Regulation 2017/1001 could not apply in the present case. Those grounds, presented with precision and clarity, allowed the applicant to know the reasons for the rejection of the application for registration of the mark applied for and to challenge them substantively. Therefore, they are sufficient to satisfy the requirement to state reasons referred to in the first sentence of Article 94(1) of Regulation 2017/1001. 97 Furthermore, the applicant had not disputed that the goods and services allegedly omitted, referred to in paragraph 93 above, belong to more general categories, as mentioned in paragraphs 28 to 39 of the contested decision. The ‘software, in particular for casino and amusement arcade games, for gaming machines, slot machines, video lottery gaming machines, with or without prize pay-outs and/or for gaming via telecommunications networks and/or the internet’ form part of broader categories, namely the ‘software’, ‘games programs’ and ‘gambling software’ in Class 9. As regards the ‘sport camp services’ and the ‘sporting and cultural activities’, they form part of the ‘organisation of e-sporting events’ and ‘sport camp services’ included in Class 41. Lastly, the contested services included in Class 42 form part of the category headed ‘computer system design’. Consequently, the Board of Appeal was able to present those grounds in summary form in respect of the categories mentioned above in this paragraph as well as for all the goods and services in question. In stating the reasons for its decision with sufficient clarity and precision, the applicant was able to know the grounds for refusal in respect of all the goods and services at issue. 98 In the light of the foregoing, the Board of Appeal did not infringe the obligation to state reasons referred to in the first sentence of Article 94(1) of Regulation 2017/1001. The right to be heard 99 In the second part, as regards the alleged infringement of the right to be heard in that the Board of Appeal did not give the applicant the opportunity to present any comments on a ground for partial refusal, it should be borne in mind that, in the context of EU trade mark law, Article 94(1) of Regulation 2017/1001 enshrines the general principle of protection of the rights of the defence, also laid down in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union. According to that principle, a person whose interests are appreciably affected by a decision addressed to him or her by a public authority must be given the opportunity effectively to make his or her point of view known (see judgment of 26 March 2020, Armani v EUIPO – Asunción (GIORGIO ARMANI le Sac 11), T‑653/18, not published, EU:T:2020:121, paragraph 25 and the case-law cited). 100 However, the right to be heard extends to all the factual and legal material which forms the basis for the decision and not to the final position which the authority intends to adopt (see, to that effect, judgment of 20 October 2021, Square v EUIPO ($ Cash App), T‑211/20, not published, EU:T:2021:712, paragraph 34). 101 In the present case, it must be stated that the applicant was able to submit its observations on two occasions before EUIPO on the ground for partial refusal of the mark on the basis of Article 7(1)(b) of Regulation 2017/1001. It is clear from the file relating to the proceedings before EUIPO that the existence of an absolute ground for refusal, on the basis of Article 7(1)(b) of that regulation, was mentioned both in EUIPO’s notification of a provisional refusal of 15 May 2020 and in the examiner’s decision of 3 December 2020. 102 In that regard, the applicant relies in vain on the argument that there is inconsistency between the examiner’s decision and that of the Board of Appeal in that the former found that the sign was devoid of any distinctive character because of its descriptive meaning, whereas the latter took the view that the sign was also incapable of performing the essential function of a trade mark. The examiner expressly stated in the notification of a provisional refusal of 15 May 2020 that the sign ‘was incapable of performing the essential function of a trade mark, namely that of distinguishing the goods or services of one undertaking from those of other undertakings’. The applicant is therefore wrong in alleging an infringement of its right to be heard on that ground for refusal. 103 In the light of the foregoing considerations, the first plea in law must be rejected. The fifth plea in law, alleging infringement of the principles of equal treatment and of sound administration 104 In the fifth plea, the applicant submits that the Board of Appeal infringed the principles of equal treatment and of sound administration by refusing to register the mark applied for, whereas other marks containing the word elements ‘game’ or ‘tournaments’ had been accepted for registration. 105 EUIPO disputes the applicant’s arguments. 106 According to the case-law, the decisions concerning registration of a sign as an EU trade mark that 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 Courts of the European Union, and not on the basis of a previous administrative practice (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65). 107 In the present case, it should be noted that the previous decisions relied on by the applicant were adopted by the EUIPO examiners. It is sufficient to note that neither the Board of Appeal nor the Court can be bound by the decisions adopted by those examiners. In particular, it would be contrary to the Board of Appeal’s purpose, as defined in Articles 66 to 71 of Regulation 2017/1001, for its competence to be restricted to the requirement to comply with the decisions of the first-instance adjudicating bodies of EUIPO (judgment of 9 March 2022, Telefónica Germany v EUIPO (LOOP), T‑132/21, not published, EU:T:2022:124, paragraph 113). 108 Moreover, it is apparent from the examination of the other pleas in law carried out above that the Board of Appeal acted correctly, on the basis of a full examination and taking into account the perception of the relevant public, in finding that the mark applied for was caught by the absolute grounds for refusal set out in Article 7(1)(b) and (c) of Regulation 2017/1001, with the result that the applicant cannot validly rely, for the purposes of casting doubt on that finding, on previous decisions of EUIPO. 109 Having regard to those considerations, the fifth plea in law must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 110 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. 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 Gameageventures LLP to pay the costs. Tomljenović Schalin Nõmm Delivered in open court in Luxembourg on 26 October 2022. E. Coulon S. Papasavvas Registrar President * Language of the case: English.