Judgment;Abstract — ECLI:EU:T:2025:996
Date: 2025-10-29
Language of the case: English
Court formation: Sixth Chamber
Procedure: Action for annulment
Origin: Bulgaria

summary of the applicant’s arguments made by the Cancellation Division, which was not disputed by the applicant during the proceedings before EUIPO. However, a summary of the arguments of one of the parties is not a matter of fact or law decided by the Cancellation Division and cannot, therefore, have the force of res judicata (see, to that effect and by analogy, order of 28 November 1996, Lenz v Commission, C‑277/95 P, EU:C:1996:456, paragraph 50). 62 Next, in the present case, the applicant stated on several occasions, in its observations before the Cancellation Division, that the contested mark had acquired distinctive character ‘with [regard] to goods in Class 32, namely mineral water’. The applicant reiterated that claim of distinctive character acquired through use of the contested mark, which was limited to mineral water, in its subsequent observations before the Cancellation Division. 63 In that regard, the general assertions made by the applicant in its observations before the Cancellation Division that the contested mark is a well-known mark in Bulgaria and therefore has distinctive character acquired through use, without reference to the goods covered by that mark, cannot be regarded as a claim of distinctive character acquired through use within the meaning of Article 7(3) of Regulation No 207/2009. 64 Moreover, it should be noted that the applicant’s line of argument relating to distinctive character acquired through use, during the administrative proceedings before EUIPO, and the evidence which it referred to in that regard relates almost entirely to ‘mineral water [and] seltzer mineral water’. 65 As is apparent from the case-law cited in paragraph 56 above, it is for the applicant to provide specific and substantiated information of the acquisition, by the contested mark, of distinctive character through use. 66 Thus, the applicant’s generic observations regarding the recognition of the contested mark and the fact that the evidence produced by the applicant before the Cancellation Division did not refer exclusively to ‘mineral water [or] seltzer mineral water’ did not allow the Board of Appeal to infer that the claim had to be regarded as extending to all the goods in Class 32, contrary to its explicit assertions in that regard. 67 Consequently, the applicant’s argument that it claimed distinctive character acquired through use of the contested mark in respect of all the goods covered by that mark must be rejected. 68 That conclusion is not called into question by applicant’s arguments. 69 First, as regards the applicant’s argument that the summary of its arguments in the Board of Appeal’s decision of 2 December 2016 shows that it claimed distinctive character acquired through use for all the goods covered by the contested mark, it is sufficient to note that the Board of Appeal’s decision of 2 December 2016 was retroactively eliminated from the legal system by the judgment of 25 October 2018, DEVIN (T‑122/17, EU:T:2018:719) (see, by analogy, judgment of 1 September 2021, Gruppe Nymphenburg Consult v EUIPO (Limbic® Types), T‑96/20, EU:T:2021:527, paragraph 28). 70 Second, as regards the applicant’s argument that it reiterated its claim of distinctive character acquired through use for all the goods covered by the contested mark in its application in the case which gave rise to the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), it must be borne in mind that, under Article 188 of the Rules of Procedure, the pleadings of the parties in the proceedings before the Court may not change the subject matter of the proceedings before the Board of Appeal. 71 Third, as regards the applicant’s argument that the Court, in its judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), expressly confirmed the scope of its claim concerning the distinctive character acquired through use of the contested mark, it should be stated, as observed by EUIPO, that, in that case, the Court did not rule on the scope of the claim that that mark had acquired distinctive character through use. 72 Lastly, as regards the additional evidence relied on by the applicant to show the distinctive character acquired through use of the contested mark for goods other than mineral water (Annexes A.9.a to A.9.g to the application), as was found in paragraph 37 above, that evidence is inadmissible. 73 In the light of the foregoing, the second plea in law must be rejected. The third plea in law, alleging infringement of the rights of the defence, the right to be heard and the principle of procedural economy 74 The applicant’s third plea alleges infringement of Article 94(1) of Regulation 2017/1001, Article 70(2) of that regulation and Article 27(2) of Delegated Regulation 2018/625. That plea is divided into two parts. In the first place, the applicant submits that the Board of Appeal infringed its rights of defence by overturning the Cancellation Division’s decision without inviting the parties to submit their observations. In the second place, it submits that the Board of Appeal infringed the principle of procedural economy by adopting the contested decision of its own motion and without allowing the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816). – The first part of the third plea in law, alleging infringement of the rights of the defence 75 The applicant claims that the Board of Appeal infringed its rights of the defence by overturning the Cancellation Division’s decision without inviting the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816). According to the applicant, the assessment made in the contested decision of the distinctive character acquired through use of the contested mark could have led to a different outcome from the one ultimately adopted if it had been in a position to submit its observations. 76 EUIPO and the intervener dispute the applicant’s arguments. 77 In accordance with the second sentence of Article 94(1) of Regulation 2017/1001, EUIPO’s decisions are to be based only on reasons on which the parties concerned have had an opportunity to present their comments. That provision constitutes a specific application of the general principle of protection of the rights of the defence, guaranteed, furthermore, by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, according to which a person whose interests are affected by a decision of a public authority must be given the opportunity effectively to make his, her or its point of view known (judgment of 13 December 2016, Guiral Broto v EUIPO – Gastro & Soul (Café del Sol), T‑548/15, not published, EU:T:2016:720, paragraph 30). 78 The right to be heard extends to all the matters of fact and of law which constitute the basis for the decision-making act, but not to the final position which the administration intends to adopt (see judgment of 3 December 2003, Audi v OHIM (TDI), T‑16/02, EU:T:2003:327, paragraph 75 and the case-law cited). 79 In that context, it follows from settled case-law that the second sentence of Article 94(1) of Regulation 2017/1001 in no way requires that, following the resumption of the proceedings before EUIPO after the annulment of the decision of the Boards of Appeal by the General Court, the applicant again be invited to submit observations on points of law and fact on which it has already had ample opportunity to express its views in the course of the written procedure previously conducted, given that the file as then constituted has been taken over by the Board of Appeal (see judgment of 25 November 2020, Group v EUIPO – Iliev (GROUP Company TOURISM & TRAVEL), T‑57/20, not published, EU:T:2020:559, paragraph 31 and the case-law cited). 80 In addition, Article 70(2) of Regulation 2017/1001 provides that, in the examination of the appeal, the Board of Appeal is to invite the parties, as often as necessary, to file observations, within a period to be fixed by the Board of Appeal, on communications from the other parties or issued by itself. 81 In the present case, it is common ground that the Board of Appeal did not invite the parties to submit additional observations on the distinctive character acquired through use of the contested mark in respect of goods other than ‘mineral water complying with the specifications of [the PGI] Devin Natural Mineral Water’, following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816). 82 However, it must be stated that, in the administrative proceedings before EUIPO, the applicant had the opportunity to submit its observations relating to aspects of the intervener’s invalidity proceedings, including the distinctive character acquired through use of the contested mark. 83 Accordingly, the Board of Appeal was not required, in the present case, to hear the applicant again regarding the distinctive character acquired through use of the contested mark and, more specifically, on the acquisition of that character for goods other than ‘mineral water complying with the specifications of [the PGI] Devin Natural Mineral Water’, before the Board of Appeal carried out its own assessment in the contested decision. 84 The first part of the third plea in law must therefore be rejected. – The second part of the third plea in law, alleging infringement of the principle of procedural economy 85 The applicant submits that, by adopting the contested decision of its own motion and not allowing the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), the Board of Appeal infringed the principle of procedural economy. Thus, the Board of Appeal left the applicant with no choice but to bring a third action before the General Court. 86 EUIPO and the intervener dispute the applicant’s arguments. 87 At the outset, it must be stated that, as was pointed out in paragraph 83 above, in the present case, the Board of Appeal was not required to hear the applicant again regarding the distinctive character acquired through use of the contested mark before it carried out its own assessment in the contested decision. 88 Furthermore, while the case-law of the Court of Justice recognises the applicability of the principle of procedural economy during administrative proceedings before EUIPO, that case-law appears to be limited to certain situations. The Court of Justice has held, inter alia, that it would be contrary to that principle to compel the party who filed a counterclaim to initiate new proceedings with EUIPO in the event of withdrawal by the principal applicant (judgment of 13 October 2022, Gemeinde Bodman-Ludwigshafen, C‑256/21, EU:C:2022:786, paragraph 56). 89 In addition, the Court of Justice has held that it would be contrary to the principle of procedural economy to hold that a counterclaim based on a ground for invalidity referred to in Article 7(1)(a) to (m) of Regulation 2017/1001, which concerns all the goods or services covered by the registration of that mark, may lead only to a declaration of partial invalidity of the mark on which the infringement proceedings concerned are based (judgment of 8 June 2023, LM (Counterclaim for a declaration of invalidity), C‑654/21, EU:C:2023:462, paragraph 44). 90 However, in the present case, although the applicant refers to the judgment of 8 June 2023, LM (Counterclaim for a declaration of invalidity) (C‑654/21, EU:C:2023:462), it must be stated that its application is not a counterclaim within the meaning of Regulation 2017/1001, but claims that the contested mark has acquired distinctive character through use. Consequently, the case-law on which the applicant relies cannot be applied, either directly or by analogy, to the present case. 91 It follows that, in the present case, the Board of Appeal did not infringe the principle of procedural economy by adopting the contested decision without allowing the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), especially since nothing prevented the parties from submitting such observations on their own initiative. 92 In the light of the foregoing considerations, the second part of the third plea in law and, therefore, the third plea in law in its entirety must be rejected. The fourth plea in law, alleging infringement of the principles of equal treatment and legal certainty 93 The applicant’s fourth plea, alleging infringement of the principles of equal treatment and legal certainty, is divided into two parts. In the first place, the applicant complains that the Board of Appeal infringed the principle of equal treatment, in that it treated comparable situations differently. In the second place, the applicant complains that the Board of Appeal infringed the principle of legal certainty and, its corollary, the principle of the protection of legitimate expectations, by finding that the evidence the applicant submitted was sufficient to establish distinctive character acquired through use of the contested mark in respect of ‘mineral water [and] seltzer mineral water’, but not as regards the other goods covered by that mark. – The first part of the fourth plea in law, alleging infringement of the principle of equal treatment 94 The applicant invokes the principle of equal treatment, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights. In that regard, the applicant submits that it claimed distinctive character acquired through use in respect of all the goods covered by the contested mark and submitted evidence in that regard. By concluding that the contested mark has acquired distinctive character through use solely for ‘mineral water [and] seltzer mineral water’ and not for the other goods covered by the contested mark, the Board of Appeal treated comparable situations differently without any objective justification. More specifically, the Board of Appeal found that the same evidence, which contained equivalent information concerning the distinctive character acquired through use of the contested mark in Bulgaria, was sufficient to prove distinctive character for ‘mineral water [and] seltzer mineral water’, but not for the other goods covered by that mark. 95 EUIPO and the intervener dispute the applicant’s arguments. 96 The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 15 July 2021, DK v EEAS, C‑851/19 P, EU:C:2021:607, paragraph 47 and the case-law cited). 97 In the present case, the applicant submits that the Board of Appeal infringed the principle of equal treatment by finding that ‘the same evidence, which contained equivalent information on the acquired distinctiveness through use of the [contested mark] in Bulgaria for all [the] goods covered [by that mark]’ was only sufficient to prove distinctive character for ‘mineral water [and] seltzer mineral water’, and not for the other goods covered by that mark. 98 At the outset, it should be noted, as was established in paragraphs 56 to 73 above, that the applicant has not claimed, or a fortiori proved, distinctive character acquired through use of the contested mark in respect of the goods covered other than ‘mineral water [and] seltzer mineral water’. 99 In addition, and in any event, it must be stated that the applicant does not explain what evidence or information it refers to with that assertion. In that regard, the applicant refers only to paragraphs 41 to 47 of the application, in which it states that it submitted evidence of distinctive character acquired through use. 100 While it is true that the applicant referred, in paragraph 41 of the application, to certain items of evidence which it submitted with its observations before the Cancellation Division, in particular concerning spring water and bottled water, it does not, however, show that they are ‘the same evidence [containing] equivalent information’ as the evidence on the basis of which the Board of Appeal found distinctive character acquired through use for ‘mineral water [and] seltzer mineral water’. 101 Although the application sets out the applicant’s complaint, it does not include any arguments capable of substantiating that complaint. Therefore, the text of the application does not contain sufficiently precise information for the General Court to be able to exercise its power of review and for EUIPO to be able to prepare its defence. 102 It follows, first, that it is not for the Court to search within the annexes for what the applicant’s line of argument in relation to the complaint at issue might be (see judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 12 and the case-law cited) and, second, that that line of argument must be rejected as inadmissible pursuant to Article 177(1)(d) of the Rules of Procedure, in so far as it does not include the essential elements that would enable the Court to exercise its power of review and the defendant to prepare a proper defence. 103 The first part of the fourth plea must therefore be rejected. – The second part of the fourth plea in law, alleging infringement of the principle of legal certainty and its corollary, the principle of legitimate expectations 104 The applicant submits that, in finding, in paragraph 85 of the contested decision, that the evidence which it submitted was sufficient to establish distinctive character acquired through use of the contested mark for the goods in Class 32, the Board of Appeal led it to have a legitimate expectation that that mark would be maintained not only for ‘mineral water [and] seltzer mineral water’, but also for the other goods in Class 32 covered by the contested mark. The Board of Appeal infringed that legitimate expectation in breach of the principle of legal certainty. 105 EUIPO and the intervener dispute the applicant’s arguments. 106 The principle of legal certainty – which is one of the general principles of European Union law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (judgments of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100 and of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 28). 107 The corollary of that principle is the principle of the protection of legitimate expectations, which extends to any individual in a situation where it is clear that the EU administration has, by giving him or her precise, unconditional and concordant assurances, emanating from authorised and reliable sources, led him or her to entertain justified hopes (see, to that effect, judgment of 9 July 2008, Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 64 and the case-law cited). 108 The applicant claims, inter alia, that the Board of Appeal infringed the principles of legal certainty and the protection of legitimate expectations by finding, in paragraph 88 of the contested decision, that the contested mark had acquired distinctive character through use solely in respect of ‘mineral water [and] seltzer mineral water’, even though it had found, in paragraph 85 of the contested decision, that that mark had acquired distinctive character through use, without restricting that finding to any one of the goods covered by that mark. 109 In that regard, it is sufficient to note that paragraph 85 of the contested decision does not contain any assurance, let alone precise, unconditional and concordant assurances within the meaning of the case-law cited in paragraph 107 above, as regards the distinctive character acquired through use of the contested mark in respect of all of the goods it covers. 110 The second part of the fourth plea in law and, consequently, the fourth plea in law in its entirety, must therefore be rejected. 111 It follows from all of the foregoing that none of the pleas in law relied on by the applicant can be upheld and that the action must therefore be dismissed in its entirety. Costs 112 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. 113 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as no hearing was organised, be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Devin EAD to bear its own costs and to pay those incurred by Haskovo Chamber of Commerce and Industry; 3. Orders EUIPO to bear its own costs. Costeira Öberg Zilgalvis Delivered in open court in Luxembourg on 29 October 2025. V. Di Bucci M. van der Woude Registrar President * Language of the case: English.