Judgment — ECLI:EU:T:2016:578
Date: 2016-09-29
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: United Kingdom

summary of the pleas in law on which it is based. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action. The same considerations must apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity. In addition, in order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, at the very least summarily, provided that the statement is coherent and comprehensible (see, by analogy, judgment of 27 September 2005, Cargo Partner v OHIM (CARGO PARTNER), T‑123/04, EU:T:2005:340, paragraphs 26 and 27). 51 In the present case, the applicant satisfies those conditions, given that the statement of evidence in support of the second plea in law is sufficient to enable the Court to identify the arguments constituting the legal and factual basis of the action. 52 The objection of inadmissibility raised by EUIPO must therefore be rejected. 53 Under Article 7(3) of Regulation No 207/2009, the absolute grounds for refusal set out in Article 7(1)(b) to (d) of that regulation are not to preclude registration of a trade mark if that mark has become distinctive in relation to the goods or services for which registration is sought in consequence of the use which has been made of it. 54 It is apparent from case-law that, in order for the registration of a trade mark to be accepted under Article 7(3) of Regulation No 207/2009, the distinctive character acquired through the use of that trade mark must be demonstrated in the part of the European Union in which it did not, ab initio, have such character (judgment of 24 May 2012, Chocoladefabriken Lindt & Sprüngli v OHIM, C‑98/11 P, EU:C:2012:307, paragraph 60). Furthermore, the acquisition of distinctive character through use must have taken place before the application for registration was filed (judgments of 21 April 2010, Schunk v OHIM (Representation of part of a chuck), T‑7/09, not published, EU:T:2010:153, paragraph 40, and of 6 November 2014, Vans v OHIM (Representation of a wavy line), T‑53/13, not published, EU:T:2014:932, paragraph 94). 55 It is also apparent from case-law that the acquisition of distinctive character through use of a mark requires that at least a significant proportion of the relevant public identifies the goods or services concerned as originating from a particular undertaking because of the mark, and thus distinguishes those goods or services from those of other undertakings. By contrast, signs which do not enable the public concerned to repeat a purchasing experience if it proves to be positive, or to avoid it if it proves to be negative, when acquiring the goods or services in question on a subsequent occasion, are devoid of any distinctive character. In addition, it should be noted that it is in relation to the goods or services in respect of which registration is sought and in the light of the presumed perception of an average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect, that the acquisition of distinctive character through use must be assessed (see judgment of 23 February 2016, Consolidated Artists v OHIM — Body Cosmetics International (MANGO), T‑761/14, not published, EU:T:2016:91, paragraph 17 and the case-law cited). 56 The present plea in law must be examined in the light of those considerations. 57 First of all, as can be seen from the examination of the first plea in law above, the contested trade mark was, correctly, considered to be descriptive of the goods in question. Accordingly, the applicant’s argument seeking to contest that finding, with the consequence that it would be exempt from having to prove the acquisition of distinctive character by the mark in question in any State whatsoever, must be rejected as being based on an incorrect premiss. 58 Next, the applicant argues, in essence, that, in any event, the United Kingdom is the only relevant territory for the purpose of assessing the distinctive character acquired through use. 59 However, the Board of Appeal properly concluded that the contested trade mark was descriptive in view of its meaning in English and that the relevant public was the average English-speaking consumer, which, moreover, the applicant has not contested (see paragraph 20 above). It is apparent from case-law that English-speaking consumers are those of Member States in which English is an official language, namely Ireland, the Republic of Malta and the United Kingdom of Great Britain and Northern Ireland, as well as Member States in which the knowledge of English is regarded as a well-known fact, namely the Kingdom of Denmark, the Republic of Cyprus, the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden (judgment of 9 December 2010, Earle Beauty v OHIM (NATURALLY ACTIVE), T‑307/09, not published, EU:T:2010:509, paragraphs 26 and 53). 60 Therefore, the relevant public for the purpose of assessing the distinctive character acquired through use of the trade mark RESCUE at issue in the present case cannot be limited to consumers in the United Kingdom but also includes, as a minimum, the average consumers of other English-speaking countries. The fact that long-standing use of the contested trade mark on a grand scale in the United Kingdom was acknowledged by the Board of Appeal, as emphasised by the applicant, cannot alter that conclusion. That fact does not preclude a finding, when assessing the distinctive character acquired through use of the contested trade mark in the present case, that the relevant territory is larger than that of the United Kingdom alone. 61 Nor, in the same vein, does the fact that the trade mark RESCUE would be perceived as a reference to Doctor Bach’s ‘rescue remedy’, which has distinctive character, undermine that conclusion concerning the concept of the relevant territory to be taken into account for the purpose of assessing the distinctive character acquired through use of the contested trade mark in the present case (see, to that effect, judgment of 30 September 2009, JOOP! v OHIM (!), T‑75/08, not published, EU:T:2009:374, paragraphs 43 to 45). 62 Lastly, the applicant, first, in no way establishes that the findings of the Board of Appeal concerning the insufficient proof of use of the mark in Ireland, the Netherlands and the United Kingdom are incorrect and, second, does not contest the Board of Appeal’s assertion that no proof of distinctive character acquired through use has been produced in respect of the Kingdom of Denmark, the Republic of Cyprus, the Republic of Malta, the Republic of Finland or the Kingdom of Sweden. 63 It follows that the applicant’s line of argument regarding the second plea in law must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 64 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. 65 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 (Ninth Chamber) hereby: 1. Dismisses the action; 2. Orders Bach Flower Remedies Ltd to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO). Berardis Spielmann Xuereb Delivered in open court in Luxembourg on 29 September 2016. [Signatures] * Language of the case: English.