Judgment — ECLI:EU:T:2018:719
Date: 2018-10-25
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Bulgaria

summary issued by the municipality of Devin itself, stating, on the basis of statements by hotel owners, the number of foreign tourists who visited the town of Devin in 2014, which was allegedly a ‘record year’. That document shows that, during that year, less than 3 500 foreign tourists of all nationalities visited the town of Devin and that, among them, there were only 400 Greek tourists and 50 Romanian tourists. Compared with the figure of 5.4 million foreign tourists who visited Bulgaria in 2014 (see paragraph 38 above) and the populations of the Member States of the European Union, in particular Greece and Romania —10.7 million and 19.6 million inhabitants respectively on 1 January 2017 according to the Statistical Office of the European Union (Eurostat) — that data suggests that the town of Devin does not represent a major attraction for foreign tourists, particularly Greek and Romanian, and, a fortiori, is not known to the average consumer abroad. 55 The applicant also produced data resulting from an ‘omnibus’ market survey carried out in several Member States, including Greece (mainland and Crete), Romania, Germany and the United Kingdom (‘the omnibus survey’). With regard to the survey conducted in Greece and covering a sample of 1 007 people from the Greek public, the results seemed to show that less than 1% of that sample associated the word ‘devin’ with a place in Bulgaria, and less than 3% with any place at all. 56 The Board of Appeal considered this omnibus survey to be ‘flawed on several points’ listed in paragraphs 44 to 47 of the contested decision. According to it, first, the investigation was trying to prove a negative fact, namely that the public did not know the town of Devin, and because of that questionable premiss, most of the data collected was ambiguous. The interviewees should have been ‘prompted to be more precise’, but it did not specify how. Secondly, there was no indication as to whether or to what extent people living in border regions of Bulgaria had taken part in the Greek survey. Thirdly, the results of the Greek survey were vitiated by errors and the data suffered from occasional unreliability (in the order of an erroneous total of 71 instead of 72). Fourthly, even if the data were interpreted in its most favourable sense from the applicant’s point of view, it should be taken into account that, in the Greek survey, 30 respondents replied that Devin was either a ‘town’, a ‘location’ or a ‘region in Bulgaria’. It inferred that those 30 respondents, out of sample of 1 007, correspond to more than 270 000 inhabitants out of a total Greek population of 11 million, which was not an insignificant number. Of all these, the Board of Appeal concluded that the survey data was ‘clearly ... not convincing’ and ‘not conclusive’. 57 Even if that omnibus survey were to suffer from the shortcomings identified by the Board of Appeal, it must be held that its conclusions can at least be taken into account, with a sufficient margin of error and without being decisive. Accordingly, even if the actual percentage of the Greek public recognising Devin as a geographical place (in Bulgaria or elsewhere) is 3%, or even two or three times higher, that is still a small percentage, which cannot be considered as representing the average Greek consumer. 58 Above all, even if the number of 270 000 inhabitants is not insignificant in absolute terms, the relevant question is the perception by the entire public concerned, with regard to which a relative percentage of 3% is very unrepresentative. The same result can also be read as meaning that 97% (or an approaching percentage) of the Greek population does not recognise the word ‘devin’ as a ‘town’, ‘place’ or ‘region of Bulgaria’, which is much more convincing and conclusive. 59 Moreover, as regards the absence of any indication in the Greek survey of persons bordering Bulgaria, it suffices to recall that, in any case, a very large majority of average Greek consumers does not live close to the Bulgarian border. 60 Finally, EUIPO’s allegation in the response, that the fact that Greece and Romania are parties to the Lisbon Agreement implies that the citizens of those Member States know Devin as a geographical indication of Bulgarian mineral water must be rejected. Such an allegation is clearly lacking in fact, in that it presumes on the part of the average Greek or Romanian consumer an extremely high degree of knowledge that they clearly do not possess, including international treaties and the list of protected geographical indications in their country. Moreover, the legal protection by a Member State of a geographical indication cannot suffice to automatically establish the recognition, by the average consumer in that Member State, of the word corresponding to that indication as descriptive of a geographical origin. 61 Consequently, it must be concluded, as the applicant claims, that the Board of Appeal did not comply with the requirements established by the settled case-law cited in paragraph 24 above, namely that it should ‘establish’ that the word ‘devin’ is known as the designation of a geographical origin by the average consumer in Greece and Romania. (3) The average consumer in other EU Member States 62 The Board of Appeal, having found that the contested trade mark was descriptive for the average Greek or Romanian consumer, hardly examined that issue from the point of view of the average consumer in the other Member States of the European Union. In paragraph 47 of the contested decision, it merely considered that it could be deduced by extrapolation from the omnibus survey, which it had however dismissed as ‘not convincing’, that around 455 000 German consumers would perceive the word ‘devin’ as the name of a town or a town in Bulgaria. In paragraph 55 of that decision, it added that ‘it would be unrealistic to claim that none of these members of the general public from other Member States [who visit Bulgaria] would fail to familiarise themselves with Bulgarian culture, history and natural attractions, which would include the town of Devin, when considering their travel arrangements’. 63 It must be noted, as did the applicant, that 455 000 consumers would correspond to less than 0.6% of the total German population, which hardly qualifies as a considerable proportion or an average German consumer of mineral water and drinks. Further, the mere fact that consumers answered ‘town’ to a question in the survey is inconclusive, as it cannot be equated with the knowledge of a particular town or particular direct link with the goods at issue. 64 As for the characterisation of the average EU consumer as a tourist preparing a trip to Bulgaria and familiarising himself with a relatively minor attraction of the country, this seems much more ‘unrealistic’ than the contrary finding. In that respect, it should be noted again that the average consumer of mineral water and beverages in the European Union does not have a high degree of specialisation in geography or tourism (see paragraph 47 above). 65 Moreover, the intervener did not present any specific evidence to establish that the average consumer of the European Union perceives the word ‘devin’ as a geographical place in Bulgaria. 66 As regards the Cancellation Division’s assertion that the geographical name Devin, in the future, would potentially be understood by the public in the European Union as a description of the geographical origin of the relevant goods, taking into account the marketing efforts made and the growth of the Bulgarian tourism sector (see paragraph 4 above), it should be noted that such an assertion is not supported by the facts of the case and is a mere hypothesis, in particular because the town of Devin is not one of Bulgaria’s 50 main destinations and benefits only very marginally from the growth of foreign tourism in that country. It is therefore not ‘reasonable’, within the meaning of the case law cited in paragraph 24 above, to consider that the name Devin could, in the eyes of the public of the European Union, designate the geographical origin of the goods concerned. Moreover, the burden of proof cannot be reversed by requiring the applicant to demonstrate a negative fact, namely that the town of Devin could not be visited or known in the future. 67 It must be concluded that it does not appear from the file that the word ‘devin’ is recognised as the designation of a geographical origin by the average consumer in the Member States of the European Union other than Bulgaria. 68 In view of the general interest in preserving the availability of geographical names (see paragraph 20 above), it is necessary to consider the consequences of the above conclusion on the availability of the geographical name Devin. (b) The availability of the geographical name Devin 69 The Board of Appeal, in paragraph 8 of the contested decision, recalled that the Cancellation Division had stressed the general interest in preserving the availability of geographical names. According to the Cancellation Division, the case of Devin illustrated the underlying logic of Article 7(1)(c) of Regulation No 207/2009, namely the need for certain geographical descriptions to remain available for other operators to use them, and that the existence of a European Union trademark should not hinder current and future economic efforts to develop the reputation of a traditional spa town beyond the country’s borders. The Cancellation Division had rejected the applicant’s argument that the water concession was granted to one company only, on the ground that it did not take into account the settled case-law that the general or public interest in leaving descriptive or potentially descriptive marks free for third parties to use was pre-established and presumed. 70 The Board of Appeal itself, in paragraphs 49 to 52 of the contested decision, rejected an ‘essential argument’ of the applicant described by the Board of Appeal as relating to ‘the alleged “exclusivity” of its contract allowing it to exploit Devin’s water reserves’, a provision of Bulgarian law according to which ‘an extraction concession … is granted to a single concessionaire’ (Article 47(11) of the Water Act) as well as a ‘factual monopoly over the [geographical indication] “Devin Natural Mineral Water”’ (see paragraph 28 above) precluding, according to that Board, that it ‘be left free for other traders’. 71 To this end, the Board of Appeal first considered that the applicant’s potential monopoly is limited in time and can be terminated for various commercial or legal reasons. Furthermore, it considered that the ‘exploitation’ of a natural source and its subsequent bottling may involve different undertakings, each of which must have the right to include the word ‘devin’ on its labels. Finally, it observed that ‘regardless of the current legal constraints in Bulgaria ... Directive [2009/54] does not restrict the exploitation of mineral water sources to one undertaking’, that ‘Article 8(2), of [the directive] only imposes the restriction that water from one spring should be marketed always under one and the same “trade description”, but does not limit the marketing to one undertaking’ and that ‘[that provision] does not seek to regulate the number of “concessionaires”[as the applicant seemed to argue]’. 72 The Board of Appeal, in paragraph 54 of the contested decision, addressed another argument of the applicant, pointing out that EUIPO had registered the European Union word marks VITTEL (under number 958322) and EVIAN (under number 1422716) for, inter alia, ‘mineral waters’ included in Class 32. The Board of Appeal countered that it was not necessarily EUIPO’s ‘practice’ to accept the registration of such marks unchallenged, as an examination of the history of the latter mark revealed that an objection had been raised against it during the examination of the absolute grounds for refusal, although it was later waived after the submission of evidence. 73 EUIPO, both in the response and at the hearing, considers that the Board of Appeal rightly protected the general interest in preserving the availability of a geographical name such as that of the spa town of Devin. It specifies that the applicant may of course continue exploiting its well-known trade mark in Bulgaria. However, it adds, the fact that it has a well-known trade mark in Bulgaria does not give it a right to have an EU-wide monopoly on the descriptive word ‘devin’, which would hinder economic efforts to develop the reputation of a traditional spa town beyond Bulgaria’s borders. Nor does it rule out that other competitors might, in the future, have a legitimate interest to use the descriptive indication ‘devin’ in other Member States of the European Union, where Devin is known and associated with its waters, but where it had not acquired any distinctiveness by virtue of use. 74 The applicant claims that Article 7(1)(c) of Regulation No 207/2009 is not an absolute block on the registration of descriptive signs as trade marks. It states that, when a descriptive sign has acquired a secondary meaning as a trade mark by use, it can be registered, which does not prevent other parties from making descriptive use of the sign. 75 In that regard, in the first place, it should be recalled that, under Article 12(1)(b) of Regulation No 207/2009 (now, in slightly amended form, Article 14(1)(b) of Regulation 2017/1001), ‘[an EU] trade mark shall not entitle the proprietor to prohibit a third party from using in the course of trade indications concerning the ... geographical origin ... of the goods or of rendering of the service, or other characteristics of the goods or service’. 76 The Court of Justice considered that, by thus limiting the effects of the exclusive rights of a trade mark proprietor, Article 12 of Regulation No 207/2009 seeks to reconcile the fundamental interests of trade mark protection with those of free movement of goods and freedom to provide services in the internal market in such a way that trade mark rights are able to fulfil their essential role in the system of undistorted competition which the TFEU seeks to establish and maintain (see, to that effect and by analogy, judgment of 10 April 2008, Adidas and Adidas Benelux, C‑102/07, EU:C:2008:217, paragraph 45 and the case-law cited). 77 Specifically, Article 12(1)(b) of Regulation No 207/2009 seeks to ensure that all economic operators have the opportunity to use descriptive indications. That provision therefore gives expression to the requirement of availability. However, the requirement of availability cannot in any circumstances constitute an independent restriction of the effects of the trade mark in addition to those expressly provided for in that article (see, to that effect and by analogy, judgment of 10 April 2008, Adidas and Adidas Benelux, C‑102/07, EU:C:2008:217, paragraphs 46 and 47 and the case-law cited). 78 Admittedly, it should be noted that, in circumstances that are different from the present case, it has been held that the case-law principle, referred to in paragraphs 19 and 20 above, concerning the general interest underlying Article 7(1)(c) of Regulation No 207/2009, is not contradicted by Article 12(1)(b) of that regulation, which also does not have a decisive influence on the interpretation of the first provision. Indeed, Article 12(1)(b) of Regulation No 207/2009, which aims, inter alia, to resolve the problems posed by registration of a mark consisting wholly or partly of a geographical name, does not confer on third parties the right to use the name as a trade mark, but merely guarantees their right to use it descriptively, that is to say, as an indication of geographical origin, provided that it is used in accordance with honest practices in industrial or commercial matters (see, to that effect judgments of 15 October 2003, Nordmilch v OHIM (OLDENBURGER), T‑295/01, EU:T:2003:267, paragraph 55, and of 20 July 2016, Internet Consulting v EUIPO — Provincia Autonoma di Bolzano-Alto Adige (SUEDTIROL), T‑11/15, EU:T:2016:422, paragraph 55; see also, to that effect and by analogy, judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraphs 26 to 28). 79 In particular, a descriptive use of the name ‘Devin’ is thus permitted in order to promote the town as a tourist destination. Contrary to what the intervener fears, the contested mark cannot therefore constitute an impediment to the economic efforts to develop, beyond the borders of Bulgaria, the reputation of the town of Devin for its spa waters. 80 For the sake of clarity, it should be pointed out that this legislative and jurisprudential reminder does not amount to advocating a minimum control of the grounds for refusal in Article 7 of Regulation No 207/2009 at the time when the application for registration is considered, on the pretext that the risk that operators might appropriate certain signs which ought to remain available would be neutralised by the limits which Article 12 of that regulation imposes at the stage when advantage is taken of the effects of the registered mark. The assessment of the grounds for refusal set out in Article 7 of that regulation must be carried out by the competent authority for the registration procedure or invalidity proceedings of the trademark, and cannot be withdrawn from it in order to transfer it to the courts with responsibility for ensuring that the rights conferred by the trade mark can actually be exercised (see, to that effect and by analogy, judgment of 6 May 2003, Libertel, C‑104/01, EU:C:2003:244, paragraph 58). 81 With regard to the citation by the Board of Appeal of the judgment of 23 October 2003, OHIM v Wrigley (C‑191/01 P, EU:C:2003:579, paragraph 32), according to which ‘a word sign must be refused registration … if at least one of its possible meanings designates a characteristic of the goods or services concerned’, it suffices to recall that that case-law answers, in the negative, the question of whether it is ‘necessary that the signs and indications composing the mark ... be in use at the time of the application for registration in a way that is descriptive’. However, in the present case, the relevant issue is not this one — since the word ‘devin’ is descriptive in Bulgaria, subject to distinctiveness acquired through the use of the contested mark for the goods concerned — but instead concerns the perception of that word by the relevant public outside Bulgaria. 82 In that regard, while the likelihood of a geographical indication of origin influencing competitive relationships is strong in the case of a large region with a reputation for the quality of a wide range of goods or services, it is, however, weak in the case of a well-defined place the reputation of which is limited to a restricted number of goods or services (see, to that effect, judgments of 15 December 2011, Mövenpick v OHIM (PASSIONATELY SWISS), T‑377/09, not published, EU:T:2011:753, paragraph 41, and of 20 July 2016, SUEDTIROL, T‑11/15, EU:T:2016:422, paragraph 44). However, in the present case, Devin is a well-defined place, known to the average consumer only in Bulgaria and largely unknown to the average consumer in the rest of the European Union, the reputation of which is limited to its waters. 83 In the second place, it is important to note that, assuming that the contested trade mark has acquired a secondary meaning and distinctive character in Bulgaria, the only Member State where the word ‘devin’ is descriptive, and therefore valid as a trade mark of the European Union, the fact remains that Regulation No 207/2009 provides, in the very definition of the exclusive right conferred by such a mark, safeguards to protect the interests of third parties. 84 Accordingly, the Court recalled that the purpose of Regulation No 207/2009 is generally to strike a balance between the interest which the proprietor of a trade mark has in safeguarding its essential function, on the one hand, and the interests of other economic operators in having signs capable of denoting their products and services, on the other. It follows that the protection of rights that the proprietor of a trade mark derives under that regulation is not unconditional (see, to that effect and by analogy, judgments of 27 April 2006, Levi Strauss, C‑145/05, EU:C:2006:264, paragraphs 29 and 30 and the case-law cited; of 22 September 2011, Budějovický Budvar, C‑482/09, EU:C:2011:605, paragraphs 34 and 48; of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraphs 41 to 43; and of 30 May 2018, Tsujimoto v EUIPO, C‑85/16 P and C‑86/16 P, EU:C:2018:349, paragraph 90). 85 First, the protection of the function of indicating the origin of the trade mark, provided for in Article 9(2)(a) and (b) of Regulation No 207/2009 (now Article 9(2)(a) and (b) of Regulation 2017/1001), covers its use for identical or similar goods (or services) only and requires a risk of confusion on the part of the relevant public, which is assumed in the case of double identity of signs and goods. 86 Secondly, the protection of the advertising function of a reputed trademark, provided for in Article 9(2)(c) of Regulation No 207/2009 (now Article 9(2)(c) of Regulation 2017/1001), also covers dissimilar products, but requires a risk of dilution, tarnishing or free-riding and, in addition, does not cover uses with a ‘due cause’. 87 According to the case-law of the Court, the concept of ‘due cause’ should not be interpreted as being limited to objectively overriding reasons, but may also relate to the subjective interests of a third party using a sign which is identical or similar to the mark with a reputation. That concept is intended, not to resolve a conflict between a mark with a reputation and a similar sign which was being used before that trade mark was filed or to restrict the rights which the proprietor of that mark is recognised as having, but to strike a balance between the interests in question by taking account, in the specific context of Article 9(2)(c) of Regulation No 207/2009 and in the light of the enhanced protection enjoyed by that mark, of the interests of the third party using that sign (see, to that effect and by analogy, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraphs 45 to 48). 88 It follows from Article 9(2)(c) of Regulation No 207/2009 that the proprietor of a trade mark with a reputation may be obliged, pursuant to the concept of ‘due cause’, to tolerate the use by a third party of a sign similar to that mark in relation to a product which is identical to that for which that mark was registered, if it is demonstrated that that sign was being used before that mark was filed and that the use of that sign in relation to the identical product is in good faith. Similarly, pursuant to Article 8(5) of that regulation (now Article 8(5) of Regulation 2017/1001), that proprietor may not oppose the registration of such a sign (judgment of 5 July 2016, Future Enterprises v EUIPO — McDonald’s International Property (MACCOFFEE), T‑518/13, EU:T:2016:389, paragraph 113; see also, to that effect and by analogy, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 60). 89 In the present case, it follows from the above that the name of the town of Devin remains available to third parties not only for descriptive use, such as the promotion of tourism in that town, but also as a distinctive sign in cases of ‘due cause’ and where there is no likelihood of confusion excluding the application of Articles 8 and 9 of Regulation No 207/2009. 90 The general interest in preserving the availability of a geographical name such as that of the spa town of Devin can thus be protected by allowing descriptive uses of such names and by means of safeguards limiting the exclusive right of the proprietor of the contested mark, without requiring cancellation of that mark and the total suppression of the exclusive right that it confers for the goods in Class 32 covered by the registration. 91 Moreover, it is this necessary balance between the rights of the proprietors and the interests of third parties which allows the registration of trade marks originating from an eponymous geographical name, such as the European Union word marks VITTEL and EVIAN mentioned by the applicant, under certain conditions relating in particular to the acquisition of a secondary meaning and distinctive character by use in territories where the sign is intrinsically descriptive of a geographical origin and where that sign is not deceptive as regards that origin. 2. Conclusion on the first plea in law and on the request for annulment 92 In view of the above considerations, in particular paragraphs 32 to 67 above, it must be concluded, as the applicant submits, that the Board of Appeal has not established the existence of a sufficient degree of recognition of the town of Devin by the average European Union consumer, in particular Greek or Romanian consumers, and that the intervener has not supported its request for a declaration of invalidity with any evidence that the average European Union consumer would associate the word ‘devin’ with a town in Bulgaria. While it must be held that a proportion of European Union consumers know the town of Devin, that proportion must, in any event, be considered to be very small.That conclusion in no way calls into question the natural beauty of Devin and the healing properties of its spa waters, nor the economic efforts made to promote tourism in Bulgaria. 93 According to the case-law cited in paragraph 22 above, in principle, Article 7(1)(c) of Regulation No 207/2009 does not preclude the registration of geographical names which are unknown in the circles concerned or, at the very least, unknown as a designation of a geographical place. In the present case, however, while the geographical name Devin is known to the relevant class of persons in Bulgaria, in which country the applicant claims that the contested mark has acquired distinctive character, it must be noted that, as regards the relevant class of persons in the other Member States of the European Union, in particular Greece and Romania, the geographical name Devin is largely unknown to them or, at the very least, unknown as a designation of a geographical place. 94 Similarly, according to the case-law cited in paragraph 24 above, in making its assessment, EUIPO was bound to establish that the geographical name is known to the relevant class of persons as the designation of a place. In the present case, however, it must be noted that, with respect to the relevant class of persons, which is made up of average consumers, the geographical name Devin is, for a large majority of the public, unknown. The part of the relevant public that knows that name as a geographical place represents only a very small and negligible minority of one or a few percent at most. Moreover, that percentage seems, prima facie, to be lower than that representing the part of the relevant public who know Devin as a brand of mineral water. 95 It follows from the foregoing that the Board of Appeal erred in its assessment by concluding that the contested trade mark was descriptive of a geographical origin as regards the average consumer in the neighbouring countries of Bulgaria, namely Greece and Romania, and in all the other Member States of the Union, with the sole exception of Bulgaria. In doing so, it infringed Article 52(1)(a) of Regulation No 207/2009 in conjunction with Article 7(1)(c) of that regulation. 96 Consequently, the first part of the first plea should be upheld and, consequently, the contested decision should be annulled, in accordance with the applicant’s first head of claim, without the need to examine the second part of the first plea or the second plea, including the pleas of inadmissibility raised against them respectively by the intervener or by EUIPO, nor to rule on the admissibility of certain annexes that, according to the applicant, were submitted by the intervener for the first time before the General Court. B. The claim for alteration 97 As regards the applicant’s second and third heads of claim, seeking the rejection of the intervener’s application for a declaration of invalidity in its entirety and, in essence, requesting the alteration of the contested decision (see paragraph 10 above), it must be borne in mind that the power of the General Court to alter decisions pursuant to Article 65(3) of Regulation No 207/2009 does not have the effect of conferring on that court the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgments of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72, and of 13 May 2015, easyAir-tours, T‑608/13, not published, EU:T:2015:282, paragraph 68). 98 In the present case, the conditions for the exercise of the General Court’s power to alter decisions, as set out in the judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452), are not satisfied. While it is true that it follows from the considerations set out in paragraph 95 above that the Board of Appeal was required to declare that the contested trade mark was not descriptive in respect of the non-Bulgarian part of the relevant public, in particular for the average Greek or Romanian consumer, the fact remains that the Board of Appeal — in so far as it considered, wrongly, that the alleged descriptive character of the contested mark for the Greek or Romanian part of the relevant public was sufficient to establish the existence of a ground of invalidity justifying the dismissal of the appeal against the decision of the Cancellation Division — did not clearly rule on the acquisition of distinctive character by the use of the contested mark as regards the Bulgarian part of the relevant public, the only part for which the contested mark is descriptive of a geographical origin. Since the issue of whether distinctive character had been acquired by the use of the contested trade mark in Bulgaria was not clearly examined by the Board of Appeal, it is not for the General Court to examine it, for the first time, in its review of the legality of the contested decision (see, to that effect, judgments of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraphs 72 and 73, and of 13 May 2015, easyAir-tours, T‑608/13, not published, EU:T:2015:282, paragraphs 69 and 70 and the case-law cited). 99 It follows that, as the case currently stands, the General Court cannot exercise its power to review the contested decision in order to annul the decision of the Cancellation Division of 29 January 2016 — which had, moreover, considered, on that point, that, ‘in view of the materials submitted by the [applicant] ... there can be no doubt that the trade mark “Devin” has acquired distinctive character in Bulgaria’ — and to reject the request for a declaration of invalidity of the contested mark. 100 The applicant’s second and third heads of claim must therefore be rejected. IV. Costs 101 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. 102 Since EUIPO and the intervener have been unsuccessful for the most part, first, EUIPO must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter, and, secondly, the intervener must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 December 2016 (Case R 579/2016-2); 2. Dismisses the action as to the remainder; 3. Orders EUIPO to bear its own costs and to pay those incurred by Devin AD; 4. Orders Haskovo Chamber of Commerce and Industry to bear its own costs. Collins Kancheva Passer Delivered in open court in Luxembourg on 25 October 2018. E. Coulon M. Kancheva Registrar President Table of contents I. Background to the dispute II. Forms of order sought III. Law A. The application for annulment 1. The first plea in law, alleging infringement of Article 52(1)(a) of Regulation No 207/2009, in conjunction with Article 7(1)(c) of that regulation (a) On the perception of the word ‘devin’ by the average EU consumer (1) Average Bulgarian consumers (2) Average Greek or Romanian consumers (3) The average consumer in other EU Member States (b) The availability of the geographical name Devin 2. Conclusion on the first plea in law and on the request for annulment B. The claim for alteration IV. Costs * Language of the case: English.