Information;Order — ECLI:EU:T:2020:268
Date: 2020-06-11
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

ORDER OF THE GENERAL COURT (Second Chamber) 11 June 2020 (*) (Action for annulment — EU trade mark — Application for EU word mark PERFECT BAR — Absolute grounds for refusal — No distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 — Decision taken following the annulment by the General Court of an earlier decision — Article 72(6) of Regulation 2017/1001 — Action manifestly lacking any foundation in law) In Case T‑553/19, Perfect Bar LLC, established in San Diego, California (United States), represented by F. Miazzetto, J.L. Gracia Albero, R. Seoane Lacayo and E. Cebollero González, lawyers, applicant, v European Union Intellectual Property Office (EUIPO), represented by M. Capostagno, acting as Agent, defendant, ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 22 May 2019 (Case R 371/2019-5), relating to the application for registration of the word sign PERFECT BAR as an EU trade mark, THE GENERAL COURT (Second Chamber), composed of V. Tomljenović, President, F. Schalin and P. Škvařilová-Pelzl (Rapporteur), Judges, Registrar: E. Coulon, having regard to the application lodged at the Court Registry on 8 August 2019, having regard to the response lodged at the Court Registry on 11 November 2019, makes the following Order Background to the dispute 1 On 26 April 2016, the applicant, Perfect Bar LLC, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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 Registration as a mark was sought for the word sign PERFECT BAR. 3 The goods in respect of which registration was sought are in Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Nutritional energy bars for use as a meal substitute; Nutritional supplement meal replacement bars for boosting energy; Nutritional supplement energy bars; Protein supplements; Dietary and nutritional supplements; Nutritional supplements in the form of bars and bites; nutritional supplements in the form of food bars for use as a meal substitute; nutritional and dietary supplements formed and packaged as bars’. 4 On 2 November 2016, the examiner dismissed the application for registration in respect of all the goods referred to in paragraph 3 above on the ground that the mark applied for was descriptive, pursuant to Article 7(1)(c) of Regulation No 207/2009 (now Article 7(1)(c) of Regulation 2017/1001), and devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001). 5 On 27 December 2016, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001) against the examiner’s decision. 6 By decision of 5 September 2017 (‘the earlier decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal in respect of all the goods referred to in paragraph 3 above, taking the view that the mark applied for was descriptive and devoid of distinctive character in respect of all those goods. 7 By application lodged at the Court Registry on 17 November 2017, the applicant brought an action against the earlier decision. 8 By judgment of 8 November 2018, Perfect Bar v EUIPO (PERFECT BAR) (T‑758/17, not published, ‘the judgment ordering annulment’, EU:T:2018:762), the General Court annulled in part the earlier decision, holding that, in that judgment, the Board of Appeal had failed to establish that the mark applied for was descriptive and devoid of distinctive character in respect of ‘protein supplements’ and ‘dietary and nutritional supplements’ (‘the goods at issue’), and dismissed the action as to the remainder. 9 Since the earlier decision had been annulled in part, the Presidium of the Boards of Appeal of EUIPO remitted the case to the Fifth Board of Appeal. 10 By communication of 25 March 2019, the Rapporteur informed the applicant that the issue remaining to be dealt with was whether the mark applied for is descriptive and lacks distinctive character in respect of the goods at issue and that that mark was descriptive and devoid of distinctive character in respect of those goods as they could be sold in the form of a bar. Accordingly, it submitted evidence demonstrating that the goods at issue could be marketed in the form of a bar. The applicant was invited to submit its comments on that communication. 11 By letter of 25 April 2019, the applicant submitted, in essence, that the General Court, in the judgment ordering annulment, had concluded that the absolute grounds referred to in Article 7(1)(b) and (c) of Regulation 2017/1001 could not be applied in refusing to register the trade mark applied for in respect of the goods at issue and that that judgment had become final and binding, so that EUIPO could not carry out a new examination. 12 By decision of 22 May 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. In particular, it took the view that, since the General Court held, in essence, that the earlier decision failed to provide a statement of reasons in relation to the goods at issue, it should re-examine whether the mark applied for is descriptive in relation to those goods, thereby rejecting the applicant’s arguments claiming res judicata in relation to the judgment ordering annulment. 13 As regards the descriptiveness of the mark applied for in relation to the goods at issue, the Board of Appeal first of all recalled the meaning of that mark, as endorsed by the General Court. Next, referring to various items of evidence, it took the view that the goods at issue could be sold in the form of a bar. Finally, the Board of Appeal concluded that there was a sufficiently close link between the mark applied for and the goods at issue for the mark to be caught by the prohibition laid down in Article 7(1)(c) of Regulation 2017/1001. 14 It also concluded that, since the mark applied for was descriptive of the goods at issue, it was also devoid of distinctive character in respect of those goods, in accordance with Article 7(1)(b) of Regulation No 2017/1001. Forms of order sought 15 The applicant claims that the Court should: – annul the contested decision; – order EUIPO to pay the costs, including the costs incurred before the Board of Appeal. 16 EUIPO contends that the Court should: – dismiss the application; – order the applicant to pay the costs. Law 17 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. 18 In the present case, the Court considers that it has sufficient information from the documents before it and has decided, in accordance with that article, to give a decision on the action without taking further steps in the proceedings, even though one of the parties has requested a hearing (see, to that effect, order of 12 September 2019, Puma v EUIPO (SOFTFOAM), T‑182/19, not published, EU:T:2019:604, paragraph 10 and the case-law cited). 19 In support of its action, the applicant relies on four pleas in law, claiming, first, failure to have due regard for the judgment ordering annulment, in that the General Court did not find that the earlier decision failed to state reasons, second, infringement of Article 72(6) of Regulation 2017/1001, third, infringement of Article 7(1)(c) of that regulation and, fourth, infringement of Article 7(1)(b) of the regulation. Since the first and second pleas relate to EUIPO’s compliance with the judgment ordering annulment and are based, in essence, on a misinterpretation of that judgment in the contested decision, it is appropriate to deal with them together. The first and second pleas in law: misinterpretation of the judgment ordering annulment 20 By its first plea, claiming infringement of Article 94(1) of Regulation 2017/1001, the applicant submits that, in the judgment ordering annulment, the General Court did not explicitly state that the earlier decision was vitiated by a failure to state reasons in relation to the goods at issue, but expressly concluded that the statement of reasons was incorrect. Accordingly, it criticises the Board of Appeal for misinterpreting the judgment ordering annulment in the contested decision and submits that, in any event, that decision was not capable of remedying the alleged failure to state reasons in the earlier decision concerning the goods at issue. 21 By its second plea, the applicant claims infringement of Article 72(6) of Regulation 2017/1001. It maintains, in particular, that the Board of Appeal exceeded its powers by re-examining the registrability of the mark applied for, thereby infringing the principles of separation of powers, res judicata, legal certainty, equality of arms and procedural economy. In the applicant’s view, in order to comply with the judgment ordering annulment the Board of Appeal was simply required to authorise the registration of the mark applied for in respect of the goods at issue. In support of its position, it refers in particular to the judgments of 6 October 2011, Bang & Olufsen v OHIM (Representation of a loudspeaker) (T‑508/08, EU:T:2011:575), and of 8 February 2018, Sony Interactive Entertainment Europe v EUIPO — Marpefa (Vieta) (T‑879/16, EU:T:2018:77). 22 EUIPO disputes the applicant’s arguments and maintains that the first plea is inadmissible because it lacks clarity and precision. 23 In that regard, it must be stated at the outset, as is apparent from paragraph 20 above, that, by its first plea, the applicant is, in essence, complaining that the Board of Appeal misinterpreted the judgment ordering annulment. That objection is sufficiently clear and precise, so that EUIPO’s argument that it is inadmissible on grounds of lack of clarity and precision must be rejected. Moreover, it is irrelevant that the applicant worded that plea as alleging infringement of Article 94(1) of Regulation 2017/1001. 24 It must be recalled that, under Article 72(6) of Regulation 2017/1001, EUIPO is required to take the necessary measures to comply with the judgments of the EU judicature. 25 A judgment annulling a measure takes effect, in principle, ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system (see, to that effect, judgment of 25 March 2009, Kaul v OHIM — Bayer (ARCOL), T‑402/07, EU:T:2009:85, paragraph 21 and the case-law cited). 26 In order to comply with a judgment annulling a measure and to implement it fully, the institution responsible for adopting that measure is required to have regard not only to the operative part of the judgment but also to the grounds constituting its essential basis. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (see judgment of 1 March 2018, Shoe Branding Europe v EUIPO — adidas (Position of two parallel stripes on a shoe), T‑629/16, EU:T:2018:108, paragraph 102 and the case-law cited). 27 In the present case, following the annulment in part of the earlier decision, the appeal lodged by the applicant before the Board of Appeal once more became pending. In order to comply with its obligation under Article 72(6) of Regulation 2017/1001 to take the measures necessary to comply with the judgment ordering annulment, EUIPO had to ensure that the appeal led to a new Board of Appeal decision. 28 The General Court held, in paragraph 41 of the judgment ordering annulment, that the Fourth Board of Appeal had not established that all the goods referred to in paragraph 3 above could be presented in the form of a bar. In particular, it pointed out, in paragraphs 46 and 47 of that judgment, that it was not apparent from the earlier decision that the Board of Appeal had itself relied on the argument, put before it by EUIPO, that the inclusion of ‘nutritional supplement energy bars’ and ‘nutritional and dietary supplements formed and packaged as bars’ in the list of goods referred to in paragraph 3 above demonstrated that the applicant itself took the view that the goods at issue could be presented in the form of a bar. The General Court concluded, in paragraph 53 of the judgment ordering annulment, that the Board of Appeal had not established to the requisite legal standard that the mark applied for was descriptive and consequently devoid of distinctive character in respect of the goods at issue. 29 It follows that, contrary to the applicant’s assertion, the General Court did not consider that the mark applied for was not descriptive in respect of the goods at issue, but found that the assessment of the descriptiveness and lack of distinctiveness of the mark applied for in respect of the goods at issue was deficient and that the earlier decision was vitiated by an error of law concerning the conditions for applying Article 7(1)(b) and (c) of Regulation 2017/1001. In other words, after endorsing the approach taken by the Board of Appeal that the mark applied for was descriptive as regards goods taking the form of bars and the Board of Appeal’s assessment with regard to ‘nutritional energy bars for use as a meal substitute’, ‘nutritional supplement meal replacement bars for boosting energy’, ‘nutritional supplement energy bars’, ‘nutritional supplements in the form of bars and bites’, ‘nutritional supplements in the form of food bars for use as a meal substitute’ and ‘nutritional and dietary supplements formed and packaged as bars’, the General Court criticised that Chamber on the ground that it had failed to demonstrate that the goods at issue could also be presented in that form. Following the judgment ordering annulment, it was therefore for the Board of Appeal to carry out a new examination of the descriptiveness and distinctiveness of the mark applied for in respect of the goods at issue, so that the applicant cannot properly rely on infringement of the principle of the separation of powers resulting from the Board of Appeal’s alleged failure to take into account, in the contested decision, the conclusions to be drawn from the judgment ordering annulment. 30 In that regard, the argument that the judgment ordering annulment includes no reference to Article 94 of Regulation 2017/1001 or to a plea, raised by the General Court of its own motion, alleging failure to state reasons in the earlier decision concerning the goods at issue is ineffective. Indeed, as is apparent from the grounds of that judgment, the Fourth Board of Appeal’s assessment was deficient in relation to the goods at issue. 31 Similarly, the applicant’s arguments claiming infringement of the judgments of 6 October 2011, Representation of a loudspeaker (T‑508/08, EU:T:2011:575), and of 8 February 2018, Vieta (T‑879/16, EU:T:2018:77), cannot succeed, given that, in those judgments, the General Court had found that the Board of Appeal’s reasoning in the contested decisions was erroneous. Unlike the circumstances giving rise to the judgment of 8 February 2018 in Case T‑879/16 Vieta (EU:T:2018:77, paragraph 41), the General Court did not adjudicate, in the judgment ordering annulment, on whether the mark applied for was descriptive in relation to the goods at issue, so that that judgment does not have the force of res judicata in that regard. Indeed, following the annulment in part of the earlier decision by the General Court, the appeal before the Board of Appeal was once more pending in respect of the goods at issue. Unlike the circumstances described in paragraph 33 of the judgment of 6 October 2011, Representation of a loudspeaker (T‑508/08, EU:T:2011:575), cited by the applicant, the General Court did not find in the judgment ordering annulment that the mark applied for was not caught by one of the absolute grounds for refusing to register a mark referred to in Article 7(1) of Regulation 2017/1001. 32 In the light of the findings made in paragraphs 29 and 31 above, the objection raised in the first plea, by which the applicant complains that, in the contested decision, the Board of Appeal interpreted the judgment ordering annulment as finding that the earlier decision had failed to state adequate reasons concerning the goods at issue must be rejected, as must the objections, raised in the second plea, claiming infringement of the principles of res judicata and legal certainty. 33 The same applies to the applicant’s objection, raised in the first plea, that, in the contested decision, the Board of Appeal did not remedy the earlier decision’s alleged failure to state reasons concerning the goods at issue, since that decision was based, to a large extent, on the findings previously set out in the earlier decision. It is clear that that allegation is the result of an incomplete reading of the contested decision. Indeed, in the contested decision, the Board of Appeal took account of and carried out an in-depth assessment of the nature of the goods at issue and how they were marketed (see in particular, in that respect, paragraphs 88 to 94 and 102 to 105 of the contested decision). Moreover, those new considerations were put to the applicant in the Rapporteur’s communication of 25 March 2019 (see paragraph 10 above). 34 In view of all the above, it is clear that, by carrying out, after the annulment in part of the earlier decision, a new examination of the grounds referred to in Article 7(1)(b) and (c) of Regulation 2017/1001 in respect of the goods at issue, the Board of Appeal correctly interpreted not only the operative part but also the grounds of the judgment ordering annulment, in accordance with the case-law cited in paragraph 26 above. Accordingly, the Board of Appeal did not fail to have due regard for that judgment, so that Article 72(6) of Regulation 2017/1001 cannot be said to have been infringed in the present case. 35 Nor did the Board of Appeal infringe the principle of procedural economy by carrying out a new assessment of the descriptiveness and distinctiveness of the mark applied for in respect of the goods at issue. The applicant’s objections in that regard must be rejected. Indeed, since that Board of Appeal correctly interpreted not only the operative part of the judgment ordering annulment but also the grounds of that judgment, the applicant cannot properly complain that that judgment was unreasonably circumvented or that it caused the applicant to incur additional and unnecessary costs. 36 Since the Board of Appeal, following the annulment in part of the earlier decision, was correct to reopen the administrative procedure in respect of the goods at issue and the Rapporteur was correct, respecting the applicant’s right to be heard, to submit the new evidence to the applicant for its comments, the applicant cannot, in any event, properly rely, in the present case, on infringement of the principle of equality of arms. The arguments put forward by the applicant that, unlike EUIPO, it ‘would not have the option of reopening the matter for a reassessment of the General Court’s adverse ruling or have an opportunity to submit new evidence and/or arguments after a final and binding judgment’, are also irrelevant. In that respect, it is sufficient to note that, first, those arguments are based on the erroneous premiss that the judgment ordering annulment has the force of res judicata in relation to the goods at issue (see paragraph 31 above) and, second, that the applicant was given the opportunity, following the communication from the Rapporteur, to submit its comments on the new evidence. 37 Since all the objections made in relation to the first and second pleas have been rejected, those pleas must be rejected in their entirety. The third plea in law: infringement of Article 7(1)(c) of Regulation 2017/1001 38 In its third plea, the applicant maintains that the Board of Appeal failed to demonstrate a clear link or connection between the mark applied for and the goods at issue. In particular, it submits that the grounds set out by the Board of Appeal in the contested decision do not allow a finding that the mark applied for is descriptive of the goods at issue and maintains, inter alia, that in the judgment ordering annulment, the General Court had drawn a clear distinction between the goods referred to in paragraph 3 above as presented in the form of a bar, in respect of which the mark applied for was descriptive, and the goods at issue, which are not presented in the form of a bar. 39 EUIPO disputes the applicant’s arguments. 40 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 rendering of the service, or other characteristics of the goods or service, are to be refused registration. Paragraph 2 of that article provides that paragraph 1 is to apply notwithstanding that the grounds of non-registrability obtain in only part of the Union. 41 In that regard, it should be recalled that, in accordance with case-law, Article 7(1)(c) of Regulation 2017/1001 prevents the signs or indications to which it refers from being reserved to one undertaking alone because they have been registered as trade marks. That provision thus pursues an aim which is in the public interest, namely that 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, and of 27 February 2015, Universal Utility International v OHIM (Greenworld), T‑106/14, not published, EU:T:2015:123, paragraph 14). 42 Furthermore, signs or indications which may serve, in trade, to designate the characteristics of the goods or services in respect of which registration is sought are, by virtue of Article 7(1)(c) of Regulation 2017/1001, deemed to be incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, thus enabling the consumer who acquires the goods or services 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 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 15). 43 In addition, as regards the absolute ground for refusal set out in Article 7(1)(c) of Regulation 2017/1001, a sign’s descriptiveness can only be assessed, first, by reference to the goods or services at issue and, second, by reference to the perception of the relevant public, which is composed of the consumers of those goods or services (see, to that effect, judgment of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 19). 44 It follows that, in order for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation 2017/1001, there must be a sufficiently direct and specific relationship between the sign and the goods or services at issue to enable the relevant public immediately to perceive, without further thought, a description of those goods or services at issue or one of their characteristics (see judgments of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 25 and the case-law cited, and of 21 January 2015, Grunding Multimedia v OHIM (GentleCare), T‑188/14, not published, EU:T:2015:34, paragraph 19). 45 The applicant’s arguments regarding the Board of Appeal’s assessment in the contested decision must be examined in the light of those considerations. 46 First, as regards the meaning of the mark applied for, the General Court has already endorsed, in paragraphs 21 and 30 of the judgment ordering annulment, the Board of Appeal’s assessments, as set out in the earlier decision, that that mark referred, for the English-speaking public able to identify the English words ‘perfect’ and ‘bar’ comprising that mark, to goods presented in the form of a bar which fulfilled all the ideal conditions for such a product. 47 Second, the General Court took the view that in the earlier decision the Board of Appeal was correct to conclude that the mark applied for was descriptive of goods presented in the form of a bar, since the relevant public would be able to understand that mark as referring to a food bar which was excellent in all respects and that those words described not only the nature of those goods but also their quality (paragraph 39 of the judgment ordering annulment). 48 Third, as previously stated, in the judgment ordering annulment the General Court held that the Board of Appeal, in the earlier decision, had not established that the mark applied for was descriptive of the goods at issue, since it had not demonstrated that those goods were presented in the form of a bar (see paragraph 28 above). 49 In the present case, as regards the link between the mark applied for and the goods at issue, the applicant does no more than maintain that the Board of Appeal failed to establish that link in the contested decision. 50 In that regard, it should be stated, first of all, that the Board of Appeal held, in paragraph 88 of the contested decision, that protein supplements could be defined as nutritional supplements intended to add nourishment to the body, in addition to that provided in food. Similarly, although one of the most common forms of protein supplements is powder, the Board of Appeal, referring to the evidence mentioned in paragraph 10 above, noted, in paragraphs 91 to 93 of the contested decision, that those goods were also sold in the form of a bar. Consequently, the Board of Appeal concluded, in paragraph 95 of the contested decision, that the relevant public would perceive the mark applied for as a ‘perfect bar’ of protein supplements which could be sold in the form of a bar, thus referring to a food bar having all essential elements and being excellent in all respects. 51 Next, as regards dietary and nutritional supplements, the Board of Appeal stated in paragraph 97 of the contested decision that they encompassed a number of supplements including vitamins, minerals, herbal and botanical substances, amino acids, enzymes and numerous other products. It argued that those goods were available in a variety of forms (traditional tablets, capsules and powders, as well as drinks and energy bars) and, referring to the evidence mentioned in paragraph 10 above, gave, in paragraph 105 of the contested decision, examples of goods available in the form of a bar. 52 Finally, it took the view that the link between the trade mark applied for and the goods at issue was sufficiently close for the sign to be caught by the prohibition laid down in Article 7(1)(c) of Regulation 2017/1001. 53 In that respect, the Board of Appeal did indeed establish, referring to concrete examples, that all the goods at issue could also be marketed in the form of a bar. In so doing, it demonstrated that there is a link between the mark applied for and all the goods at issue, so that the applicant’s allegations to the contrary are unfounded. 54 Furthermore, it must be stated that the applicant does not dispute, in the present case, the relevance of the evidence referred to in paragraph 10 above, or the Board of Appeal’s finding that that evidence enabled it to be established that protein and dietary supplements can be presented in the form of a bar. 55 Since the Board of Appeal established, without the applicant successfully challenging its conclusion, that the goods at issue could be presented in the form of a bar, it was also entitled to find that the mark applied for was descriptive of those goods, as the General Court had previously found in paragraph 39 of the judgment ordering annulment. 56 Moreover, it should be recalled that when registration of a sign as an EU trade mark is sought without distinction for a category of goods as a whole and that sign is descriptive in relation to only some of the goods within that category, the ground for refusal in Article 7(1)(c) of Regulation 2017/1001 nevertheless prevents registration of that sign for the whole of the category concerned (see judgment of 16 December 2010, Fidelio v OHIM (Hallux), T‑286/08, EU:T:2010:528, paragraph 37 and the case-law cited). 57 Accordingly, since, in the present case, the mark applied for is descriptive of at least some of the goods at issue, namely those which, as the Board of Appeal has demonstrated, can be marketed in the form of a bar, that fact prevents registration of that mark for the whole of the category of goods concerned, in accordance with the case-law cited in paragraph 56 above. 58 As to the applicant’s argument that the General Court, in the judgment ordering annulment, held that the mark applied for was descriptive only in respect of goods which could be presented in the form of a bar, that argument is completely irrelevant since, in the contested decision, the Board of Appeal established, to the requisite legal standard, that the goods at issue could be marketed in the form of a bar. 59 In the light of all the foregoing, the Board of Appeal was correct to take the view, in the contested decision, that the mark applied for was descriptive of the goods at issue. 60 Furthermore, since it is apparent from Article 7(1) of Regulation 2017/1001 that it is sufficient that one of the absolute grounds for refusal listed in that article is applicable for a sign to be ineligible for registration as an EU trade mark, there is no need to examine the substance of the fourth plea relied on by the applicant, which claims infringement of Article 7(1)(b) of that regulation. 61 It is clear from all the above findings that none of the pleas in law or objections relied on in support of the present action is well founded, so that the action must be dismissed, in its entirety, as manifestly lacking any foundation in law. Costs 62 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. 63 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 as manifestly lacking any foundation in law; 2. Orders Perfect Bar LLC to pay the costs. Luxembourg, 11 June 2020. E. Coulon V. Tomljenović Registrar President * Language of the case: English.