Judgment — ECLI:EU:T:2018:762
Date: 2018-11-08
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - successful

Judgment of the General Court (Fifth Chamber) of 8 November 2018 – Perfect Bar v EUIPO (PERFECT BAR) (Case T‑758/17) (EU trade mark — Application for EU word mark PERFECT BAR — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001)) 1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 16) 2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service –Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 17-19) 3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Word mark PERFECT BAR (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 30, 51-53, 64, 76) 4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Examination of the grounds for refusal having regard to each of the products or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope (Council Regulation No 207/2009, Arts 7(1) and 75, first sentence) (see paras 34-36) 5. EU trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 56) 6. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see paras 57, 58) 7. EU trade mark — Definition and acquisition of the EU trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Earlier registration of the mark in certain Member States or third countries — Decisions not binding EU bodies (Council Regulation No 207/2009) (see paras 61-63) 8. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the various grounds for refusal — Overlap of the scope of the grounds set out in Articles 7(1)(b) and 7(1)(c) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 7(1)(b) and (c)) (see para. 69) Re: Action brought against the decision of the Fourth Board of Appeal of EUIPO of 5 September 2017 (Case R 2439/2016-4), relating to an application for registration of the word sign PERFECT BAR as an EU trade mark. Operative part The Court: 1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 September 2017 (Case R 2439/2016-4) in respect of ‘Protein supplements’ and ‘Dietary and nutritional supplements’; 2. Dismisses the action as to the remainder; 3. Orders each party to bear its own costs.