Information;Judgment — ECLI:EU:T:2025:134
Date: 2025-02-05
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Malta

summary and unsubstantiated nature of the contested decision are intended, in actual fact, to challenge the merits of the Board of Appeal’s assessment of the lack of distinctive character of the mark applied for. There is nothing to suggest that the applicant was not in a position to understand the reasons given in the contested decision and to challenge them before the Court. On the contrary, the reasons given in that decision are adequate in that they made it possible for the applicant to defend its rights, as is clear from the arguments in its action against that decision, and they enabled the Court to exercise its jurisdiction to review the legality of that decision, as is apparent from the analysis above. 39 Next, as regards the degree of attention of the relevant public, according to the case-law of the Court of Justice, the fact that the relevant public is a specialist one cannot have a decisive influence on the legal criteria used to assess the distinctive character of a sign. Although it is true that the degree of attention of the relevant specialist public is, by definition, higher than that of the average consumer, it does not necessarily follow that a weaker distinctive character of a sign is sufficient where the relevant public is specialist. In order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered. However, that principle might be undermined if the distinctiveness threshold of a word sign depended generally on the degree of specialisation of the relevant public (see, to that effect, judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraphs 48 to 50 and the case-law cited). 40 In any event, it must be stated that the Board of Appeal took account of a relevant public likely to display a high level of attention. Moreover, there is nothing in the contested decision to suggest that the Board of Appeal, as the applicant claims, dismissed the importance of the relevant public and its level of attention. 41 Finally, the applicant complains that the Board of Appeal failed to examine the marks applied for as a whole, as is required by the case-law. 42 In order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered. That does not mean, however, that one may not first examine each of the various features of the get-up of that mark in turn. It may be useful, in the course of the overall assessment, to examine each of the components of which the trade mark concerned is composed (see judgment of 25 October 2007, Develey v OHIM, C‑238/06 P, EU:C:2007:635, paragraph 82 and the case-law cited). 43 Contrary to what the applicant maintains, the Board of Appeal examined the various features of the mark applied for, taking into account, in particular, the perception by the relevant public of the colour red and of the silver fuselage, in order to find expressly that the combination of those elements had a decorative purpose. It is also apparent from all the grounds of the contested decision that the Board of Appeal examined that combination, as affixed to the goods to which the services in question relate, with the result that the specific positioning of the mark applied for was duly taken into account by the Board of Appeal. 44 It follows that the Board of Appeal did not fail to consider the overall impression given by the mark applied for when examining the perception of the relevant public. The arguments put forward by the applicant in that regard must therefore be rejected. 45 In the light of all the foregoing, it must be held that the applicant does not put forward any argument capable of calling into question the Board of Appeal’s findings that the combination of a red line affixed to a silver fuselage has a decorative purpose. 46 The Board of Appeal has therefore sufficiently demonstrated that, in the light of the overall impression given by the mark applied for, that mark was not capable of identifying the commercial origin of the services in question, so that it was, within the meaning of Article 7(1)(b) of Regulation 2017/1001, devoid of any distinctive character in respect of those services. 47 In so far as the applicant refers to previous decisions of the Boards of Appeal or of other bodies of EUIPO concerning the registration of trade marks, the Court recalls that EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law, such as the principle of equal treatment and the principle of sound administration. In the light of those two principles, EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not. However, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act committed for the benefit of someone else. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 77 and the case-law cited). 48 In the present case, it is apparent from the foregoing that the Board of Appeal was entitled to find that the ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001 applied to the application for registration. In those circumstances, the applicant cannot properly rely, for the purposes of invalidating that finding, on previous decisions of EUIPO. 49 Accordingly, the single plea alleging infringement of Article 7(1)(b) of Regulation 2017/1001 must be rejected as unfounded and, consequently, the action must be dismissed in its entirety. Costs 50 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. 51 In the present case, even though the applicant has been unsuccessful, EUIPO contended that it should be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, each party must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders VistaJet ltd. and the European Union Intellectual Property Office (EUIPO) to bear their own costs. Costeira Öberg Tichy-Fisslberger Delivered in open court in Luxembourg on 5 February 2025. V. Di Bucci M. van der Woude Registrar President * Language of the case: English.