Judgment — ECLI:EU:T:2018:932
Date: 2018-12-13
Language of the case: German
Court formation: First Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Germany

Summary — Judgment of the General Court (First Chamber), 13 December 2018 1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Alteration of a decision of the Office — Assessment in the light of the powers conferred on the Board of Appeal (European Parliament and Council Regulation 2017/1001, Art. 72(3)) 2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Concept/Meaning/Definition — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) 3. EU trade mark — Definition and acquisition of the EU trade mark — Signs of which a trade mark may consist — Signs also used as advertising slogans — Condition — Distinctive character (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) 4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Marks consisting of advertising slogans — Laudatory promotional formula (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) 5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Word mark upgrade your personality (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) 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 1. See the text of the decision. (see paras 11-14) 2. See the text of the decision. (see paras 17, 21) 3. See the text of the decision. (see paras 18, 19) 4. See the text of the decision. (see para. 20) 5. The word mark upgrade your personality –– the registration of which was sought for the goods in Classes 9 and 28 of the Nice Agreement, including recorded computer programs and game consoles –– is devoid of distinctive character, within the meaning of Article 7(1)(b) of Regulation 2017/1001 on the European Union trade mark. The semantic content of the trade mark applied for indicates to the consumer a characteristic of the goods covered relating to their market value which, whilst not specific, comes from promotional or advertising information which the relevant public will perceive as such, rather than as an indication of the commercial origin of the goods in question. In the first place, the slogan ‘upgrade your personality’ contains an invitation to the consumer to improve or develop his personality with the help of the goods covered by the trade mark applied for, which may be associated with the promise that those goods will make such an improvement or development possible or easier to achieve. The fact that there could be subtle differences in the way that slogan is understood does not imply that its meaning is vague, imprecise or ambiguous. In the second place, the term ‘upgrade’ is currently used in contexts which go far beyond the field of information technology, and, moreover, account must be taken of the fact that the goods covered by the trade mark applied for fall precisely within the field of information technology, so the use of that term appears natural and would not surprise the relevant public. Lastly, there is no need to consider whether it is possible to make a technical improvement (upgrade) to the human personality, since this is an advertising slogan, and the extent to which it is based in reality is not a relevant criterion for assessment. The consumer is accustomed to advertisements which, implicitly or explicitly, make unrealistic promises. (see paras 28-32) 6. See the text of the decision. (see paras 34-36)