JUDGMENT OF THE GENERAL COURT (Second Chamber)
9 July 2025 (*)
( EU trade mark – Invalidity proceedings – EU figurative mark representing three red and white concentric circles – Absolute ground for invalidity – No distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001 – Obligation to state reasons – Right to be heard – Article 94(1) of Regulation 2017/1001 )
In Case T‑347/24,
Target Brands, Inc., established in Minneapolis, Minnesota (United States), represented by V. von Bomhard and A. Malkmes, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO),
represented by T. Klee and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Polipol Polstermöbel GmbH & Co. KG, established in Diepenau (Germany), represented by N. Friese, lawyer,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, V. Tomljenović (Rapporteur) and W. Valasidis, Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 April 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Target Brands, Inc., seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 April 2024 (Case R 1275/2022-1) (‘the contested decision’).
Background to the dispute
2        On 8 October 2020, the intervener, Polipol Polstermöbel GmbH & Co. KG, filed with EUIPO an application for a declaration of invalidity of the EU trade mark which had been registered following an application filed by the applicant on 3 April 2018 in respect of the following figurative sign:
3        The services covered by the contested mark in respect of which a declaration of invalidity was sought were in Classes 35 and 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the description in paragraph 1 of the contested decision.
4        The grounds relied upon in support of the application for a declaration of invalidity were those set out in Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), read in conjunction with Article 7(1)(b) of that regulation, and Article 59(1)(b) of that regulation.
5        By decision of 20 May 2022, the Cancellation Division dismissed the application for a declaration of invalidity.
6        On 18 July 2022, the intervener filed a notice of appeal with EUIPO against the Cancellation Division’s decision.
7        By the contested decision, the Board of Appeal annulled the Cancellation Division’s decision and declared the contested mark invalid, since that mark was devoid of any inherent distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001.
8        In essence, the Board of Appeal found that the contested mark was a simple reproduction of two banal and simple geometric shapes and would be perceived as a red circle (a dot) inside the red outline of a circle, on a white background. According to the Board of Appeal, that mark would not be perceived as an indication of commercial origin enabling the services at issue to be distinguished from those of other undertakings, since that mark did not enjoy a minimum degree of singularity and memorability.
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the intervener to pay the costs.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
11      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
12      The applicant relies on two pleas in law, alleging, first, a failure to state reasons and infringement of the right to be heard, based on Article 94(1) of Regulation 2017/1001, and, second, infringement of Article 59(1)(a) of Regulation 2017/1001, read in conjunction with Article 7(1)(b) of that regulation, in that the Board of Appeal erred in finding that the contested mark lacked distinctive character.
The first plea, alleging infringement of Article 94(1) of Regulation 2017/1001
13      The present plea can be divided, in essence, into two parts. In the first part, the applicant claims that the contested decision is vitiated by a failure to state reasons. In the second part, it submits that that decision was adopted in breach of its right to be heard.
The first part, alleging a failure to state reasons
14      The applicant claims that the contested decision is vitiated by a failure to state reasons in that the Board of Appeal did not respond to its arguments relating to the earlier registrations on which it relied.
15      EUIPO and the intervener dispute the applicant’s arguments.
16      The first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO are to state the reasons on which they are based. That obligation has the same scope as that which derives from the second paragraph of Article 296 TFEU which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question, without it being necessary for that reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets those requirements must, nonetheless, be assessed with regard, not only to its wording, but also to its context and to all the legal rules governing the matter in question (see judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraph 65 and the case-law cited).
17      In the present case, the Board of Appeal set out in detail in the contested decision the reasoning which led it to conclude that the contested mark had been registered in breach of Article 7(1)(b) of Regulation 2017/1001 in that that mark was devoid of any inherent distinctive character in respect of all the services for which it was registered.
18      In addition, contrary to what the applicant claims, the Board of Appeal responded, in paragraphs 49 to 52 of the contested decision, to the applicant’s arguments relating to the earlier registrations. Thus, it explained, in essence, that the earlier EU trade mark registrations relied on by the applicant, related neither to the sign nor to the services concerned by the contested mark and were therefore not analogous. It also stated, with regard to the applicant’s arguments based on registrations of identical EU trade marks, that EUIPO had no discretion to refuse or accept an application for registration, since the examination of the registrability of a sign must be carried out solely on the basis of Regulation 2017/1001, as interpreted by the EU judicature, and not on the basis of a previous practice of EUIPO. Furthermore, it stated that the earlier national registrations, of which the applicant was the proprietor, were not decisive inasmuch
as, in accordance with the case-law, the EU trade mark system is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system.
19      It follows from the foregoing that the applicant was in a position to understand, on reading the contested decision, the essential legal considerations in the general scheme of that decision, including as regards the earlier registrations relied on by the applicant, and that the Court is in a position to review the legality of that decision.
20      The present part of the plea must therefore be rejected.
The second part, alleging infringement of the right to be heard
21      The applicant submits, in essence, that the Board of Appeal infringed its right to be heard in so far as it chose a definition of the contested mark which was not the subject of discussion and which, according to the applicant, had an impact on its assessment of the distinctive character of that mark.
22      EUIPO and the intervener dispute the applicant’s arguments.
23      The second sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.
24      In that regard, it must be stated that the Board of Appeal based its decision on the assessment of the contested mark, as it had been registered. It is common ground that, in the proceedings before EUIPO, the applicant has had an opportunity to present its comments on that mark and its characteristics, both before the Cancellation Division and before that Board of Appeal. More specifically, it is apparent from the file that the applicant submitted that, contrary to what had been claimed by the intervener in the application for a declaration of invalidity, that mark did not consist of a simple geometric shape, composed of two red circles, with an interposed white circle, but consisted rather of a sign composed of concentric circles, in red and white, which would be perceived as a target or bull’s eye device.
25      Moreover, as is apparent from the contested decision, the Board of Appeal examined the arguments submitted by the applicant and all the evidence which it submitted in response to the intervener’s appeal, as summarised in paragraphs 17 and 18 of the contested decision. In any event, the applicant’s claim that its argument relating to the fact that the contested mark would be perceived as a target or a bull’s eye device was not taken into account by that Board of Appeal concerns a possible error of assessment and cannot usefully be relied on to demonstrate that its right to be heard has been infringed.
26      In addition, as regards the assessment of the distinctive character of the contested mark, the fact that the Board of Appeal arrived at a different conclusion from the Cancellation Division has no bearing on the assessment of the present part of the plea. While the right to be heard, as laid down in the second sentence of Article 94(1) of Regulation 2017/1001, covers the factual and legal evidence which forms the basis for the decision-making act, it does not, however, apply to the final position which the administration intends to adopt (see, to that effect, judgment of 3 December 2003, Audi v OHIM (TDI), T‑16/02, EU:T:2003:327, paragraph 75 and the case-law cited).
27      Thus, the Board of Appeal was not obliged to hear the applicant on its final assessment as regards the definition of the contested mark, and the question whether that mark was devoid of any inherent distinctive character, an assessment which it adopted on the basis of the file containing all the arguments and evidence submitted by the applicant and by the intervener before EUIPO.
28      In the light of the foregoing considerations, the present part of the plea must be rejected, as must the first plea in its entirety.
The second plea, alleging infringement of Article 59(1)(a) of Regulation 2017/1001, read in conjunction with Article 7(1)(b) of that regulation
29      The applicant submits, in essence, that the contested mark has distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001. It complains that the Board of Appeal, first, made an error of assessment as regards the definition of that mark and the relevant public’s perception of it and, second, an error of assessment as regards the lack of distinctive character of that mark, contrary to EUIPO’s previous practice.
Preliminary observations
30      In the first place, it must be borne in mind that, in accordance with Article 59(1)(a) of Regulation 2017/1001, an EU trade mark is to be declared invalid on, inter alia, application to EUIPO, where it has been registered contrary to the provisions of Article 7 of that regulation.
31      An EU trade mark is regarded as valid until it has been declared invalid by EUIPO following invalidity proceedings. The contested mark therefore enjoys a presumption of validity, which is the logical consequence of the review carried out by EUIPO in the examination of an application for registration. In those circumstances, it is for the person who has filed the application for a declaration of invalidity to invoke before EUIPO the specific facts which call the validity of that trade mark into question (see judgments of 21 April 2015, Louis Vuitton Malletier v OHIM – Nanu-Nana (Representation of a brown and beige chequerboard pattern), T‑359/12, EU:T:2015:215, paragraphs 60 and 61 and the case-law cited, and of 20 November 2024, Washtower IP v EUIPO – LG Electronics (WASHTOWER), T‑376/23, not published, EU:T:2024:849, paragraph 27 and the case-law cited).
32      In the second place, under Article 7(1)(b) of Regulation 2017/1001, trade marks which are devoid of any distinctive character are not to be registered.
33      For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001, it must serve to identify the goods and services in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods and services from those of other undertakings (see, to that effect, judgment of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 33 and the case-law cited).
34      Moreover, the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation 2017/1001, must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the perception of them by the relevant public (see judgment of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 35 and the case-law cited).
35      It is in the light of those considerations that it is necessary to examine whether, as the applicant submits in
the second plea, the Board of Appeal infringed Article 7(1)(b) of Regulation 2017/1001, by finding that the contested mark was devoid of any distinctive character.
The relevant public
36      The Board of Appeal found, in paragraph 36 of the contested decision, that the relevant public was, on the one hand, the general public, which would display a level of attention that could vary from low to high, and, on the other, professionals, whose knowledge would be high taking account of the attention paid to the reliability of the services at issue. It did, however, clarify that the level of attention of the relevant public did not have decisive influence on the legal criteria used to assess the distinctive character of the contested mark.
37      In the present case, there is nothing in the file capable of calling into question those assessments, which are not disputed by the applicant.
The description of the contested mark and its perception by the relevant public
38      In essence, the applicant complains that the Board of Appeal relied on an incorrect description of the contested mark and erred in finding that the relevant public would perceive the mark as a simple geometric shape representing a bullet point, a radio button or a decorative element, whereas it consists of three concentric circles with the colour combination red-white-red, alluding to a target or to a bull’s eye device.
39      In the first place, it must be noted that it is apparent from paragraph 37 of the contested decision that the Board of Appeal found that the contested mark consisted of a red circle or a red dot inside a red outline of a circle, which is itself placed on a white background.
40      It must be stated that such a description of the contested mark includes the essential elements which emerge from the sign in question. As was noted by the Board of Appeal, in the light of that sign, it is possible to view a red central circle, which could also be described as a dot, placed inside a white background, the whole being placed inside a red outline. Even if those elements may be described using other wording, there are no elements missing in that description and that description cannot be regarded as distorting that sign.
41      From that perspective, the description used by the Board of Appeal is not opposed to that supported by the applicant, since the definitions of ‘red circle’ and ‘red dot’, as used by the Board of Appeal in paragraph 37 of the contested decision, are equivalent, as acknowledged by the applicant at the hearing. The expression ‘red circle inside a red outline of a circle on a white background’, used by that Board of Appeal in that paragraph refers, in essence, to the definition of ‘three concentric circles’, favoured by the applicant. Furthermore, contrary to the applicant’s arguments, it is apparent from that paragraph that the Board of Appeal in question took account of the fact that the contested mark displayed two colours, namely red for the circles and white for the background.
42      In those circumstances, the applicant’s arguments disputing the Board of Appeal’s description of the contested mark must be disregarded.
43      In the second place, as regards the applicant’s arguments that the Board of Appeal erred in finding that the contested mark could be perceived as a bullet point, a radio button or a decorative element, on the basis of evidence without any probative value and incorrectly based on allegedly well-known facts, the Court makes the following observations.
44      First, the Board of Appeal found that the intervener’s arguments, which claimed, inter alia, that the contested mark would be perceived as a radio button, a bullet point
or a decorative element, on the basis of several items of evidence which had been submitted in its application for a declaration of invalidity and consisted of images and screenshots showing use of symbols similar to that mark, such as radio buttons for selecting goods and services online, bullet points or such as everyday banal decorative elements to indicate, or draw attention to, the elements on which such a representation is placed, were well founded.
45      In that regard, it must be borne in mind that, under the case-law, when considering whether the absolute grounds referred to in Article 7(1) of Regulation 2017/1001 preclude the registration of a mark or must give rise to a declaration that a previously registered mark is invalid, the adjudicating bodies of EUIPO must take the date of filing of the application for registration as the material date (see judgment of 13 May 2020, SolNova v EUIPO – Canina Pharma (BIO-INSECT Shocker), T‑86/19, EU:T:2020:199, paragraph 23 and the case-law cited).
46      That obligation, however, does not preclude the adjudicating bodies of EUIPO from taking into account, where appropriate, evidence subsequent to the application for registration, provided that such evidence allows conclusions to be drawn with regard to the situation as it was on that date (see, to that effect, judgment of 6 March 2014, Pi-Design and Others v Yoshida Metal Industry, C‑337/12 P to C‑340/12 P, not published, EU:C:2014:129, paragraph 60 and the case-law cited).
47      In the present case, it is true that the images and screenshots taken into account by the Board of Appeal were submitted by the intervener in the application for a declaration of invalidity of 8 October 2020, that is to say, 30 months after the filing of the application for registration of the contested mark of 3 April 2018. However, that Board of Appeal also took into account, as a well-known element, the fact that that mark was in fact likely to represent a radio button, a bullet point or a decorative element.
48      Second, in so far as the applicant disputes the Board of Appeal’s taking into account, as a well-known element, the fact that the contested mark was in fact likely to represent a
radio button, a bullet point or a decorative element, it is true that it is necessary to bear in mind the case-law referred to in paragraph 31 above, according to which, in invalidity proceedings based on an absolute ground for refusal, the registered EU trade mark is presumed to be valid.
49      However, while the presumption of validity of the registration restricts EUIPO’s obligation to examine the relevant facts, it does not preclude it, inter alia, in view of the particulars put forward by the party challenging the validity of the mark at issue, from relying, not only on the arguments and any evidence produced by that party in its application for a declaration of invalidity, but also on well-known facts observed by EUIPO in the context of the invalidity proceedings (see judgment of 23 October 2024, Jima Projects v EUIPO – Salis Sulam (Representation of two parallel stripes on the side of a sports shoe), T‑307/23, not published, EU:T:2024:731, paragraph 58 and the case-law cited).
50      In the present case, the Board of Appeal stated, in paragraph 39 of the contested decision, that it was well known that elements consisting of a red circle, placed inside a red circle, were used as banal figurative elements, either as radio buttons or as bullet points, in particular, in order to allow the selection of goods or services online. In accordance with the case-law cited in paragraph 49 above, the Board of Appeal cannot be criticised for taking well-known facts into account in its analysis.
51      Moreover, as has been stated in paragraph 42 above, the Board of Appeal was entitled to describe the contested mark as consisting of a red circle or a red dot, inside a red outline, which is itself placed on a white background.
52      In those circumstances, the Board of Appeal cannot be criticised for finding that that representation was likely to be perceived, in essence, as being a radio button, intended to highlight a chosen option, particularly, goods or services offered online, a bullet point or a decorative element.
53      Third, and in any event, it must be borne in mind that, according to settled case-law, well-known facts are defined as facts which are likely to be known by anyone or which may be learnt from generally accessible sources (see, to that effect, judgment of 29 June 2022, Hijos de Moisés Rodríguez González v EUIPO – Ireland and Ornua (La Irlandesa 1943), T‑306/20, EU:T:2022:404, paragraph 31 and the case-law cited).
When EUIPO bodies decide to take well-known facts into account, they are not obliged to establish, in their decisions, the accuracy of such facts. However, an applicant is entitled to submit before the Court documents in order either to substantiate or to challenge before it the accuracy of a matter of common knowledge (see judgment of 26 June 2024, Peikko Group v EUIPO – Anstar (Shape of metal beams for construction), T‑192/23, not published, EU:T:2024:420, paragraph 93 and the case-law cited).
54      Although the applicant submits that it is unusual, first, for bullet points to consist of three concentric circles of the same width or radius and, second, for consumers to encounter a bullet point or a radio button in isolation, it has not produced any evidence before the Court to substantiate its argument. For that reason, the applicant’s arguments calling into question the Board of Appeal’s finding that it is well known that signs similar to the contested mark are used as radio buttons, bullet points or decorative elements must be disregarded.
55      In those circumstances, the applicant’s arguments disputing the finding that the contested mark could represent
a radio button, a bullet point or a decorative element must be disregarded.
56      In the third place, as regards the applicant’s argument that the Board of Appeal did not take into consideration that the contested mark represents a target or a bull’s eye device, it should be borne in mind that the Board of Appeal found, in paragraph 37 of the contested decision, that that mark consisted of a red circle placed inside a red outline of a circle, itself placed on a white background, and was likely to be perceived as such, without the Board of Appeal finding it necessary to conclude that that graphic representation was tantamount to a target or a bull’s eye device.
57      In that regard, it must be borne in mind that, in accordance with the case-law, in order for a sign to come within the scope of the prohibition set out in Article 7(1)(b) of Regulation 2017/1001, it is sufficient that a ground for refusal exists in relation to a non-negligible part of the relevant public, and it is not necessary, in that regard, to examine whether other consumers belonging to that public are also aware of that sign. Consequently, in so far as the Board of Appeal was entitled to conclude that the contested mark consisted of a red circle or a red dot inside a red outline, itself placed on a white background, the fact that, as is submitted by the applicant, a part of that public may be able to identify that mark as representing a target or bull’s eye device, even if it were established, is irrelevant.
58      It follows from the foregoing that the Board of Appeal did not make an error of assessment as regards its description of the contested mark and the perception of the mark by the relevant public.
The distinctive character of the contested mark
59      The applicant
claims that the Board of Appeal did not correctly assess the distinctive character of the contested mark.
60      In that regard, it is apparent from the case-law that a sign which is excessively simple and is constituted by a basic geometrical figure, such as a circle, a line, a rectangle or a conventional pentagon, is not, in itself, capable of conveying a message which consumers will be able to remember, with the result that they will not regard it as a trade mark unless it has acquired distinctive character through use (see judgments of 29 September 2009, The Smiley Company v OHIM (Representation of half a smiley smile), T‑139/08, EU:T:2009:364, paragraph 26 and the case-law cited, and of 19 June 2024, Coinbase v EUIPO (Representation of a broken circle), T‑304/23, not published, EU:T:2024:401, paragraph 22 and the case-law cited).
61      A representation of such a basic geometrical figure can therefore fulfil an identifying function only if it includes elements capable of differentiating it from other representations of that figure and attracting the consumer’s attention (see judgment of 28 June 2017, X-cen-tek v EUIPO (Representation of a triangle), T‑470/16, not published, EU:T:2017:442, paragraph 24 and the case-law cited).
62      That being so, a finding that a mark has distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 is not subject to a finding of a specific level of linguistic or artistic creativity or imaginativeness on the part of the proprietor of the trade mark. It suffices that the trade mark should enable the relevant public to identify the origin of the goods or services it covers and to distinguish them from those of other undertakings (see judgment of 29 September 2009, Representation of half a smiley smile, T‑139/08, EU:T:2009:364, paragraph 27 and the case-law cited).
63      In addition, a sign consisting of a combination of elements each of which is devoid of any distinctive character, such as basic geometrical figures, can be distinctive only if concrete evidence, such as, for example, the way in which the various elements are combined, indicates that that sign is greater than the mere sum of its constituent parts (see, to that effect, judgment of 28 June 2017, Representation of a triangle, T‑470/16, not published, EU:T:2017:442, paragraph 32 and the case-law cited).
64      It is in the light of those considerations that it is necessary to examine whether the Board of Appeal correctly concluded that the contested mark lacked distinctive character.
65      First, as has been stated in paragraph 58 above, the Board of Appeal did not make an error of assessment in its description of the contested mark as consisting of a red circle or a red dot, inside a red outline of a circle, which is itself placed on a white background, even though, as the applicant stated, that mark may also be described as consisting of three concentric circles, displaying the colour combination red-white-red.
66      Second, irrespective of the description used, it must be stated that the contested mark, composed of three concentric circles, consists of a set of basic geometric figures, represented one-dimensionally without shadow and without being embossed. Consequently, that mark does not have any other element which is visually eye-catching or likely to be remembered by the relevant public.
67      Moreover, as the Board of Appeal correctly pointed out, in paragraphs 40 and 41 of the contested decision, the image of concentric circles, as represented by the contested mark, is not unusual, in particular, in a digital context in order to highlight the option selected by the user. It is also commonly used in everyday life as a decorative element to note, or draw attention to, the element indicated by the representation in question. Consequently, that Board of Appeal did not make an error of assessment when it concluded that that mark was likely to convey a functional image of which the relevant public will not retain a recollection and that it cannot be perceived by that public as informing it as to the commercial origin of the services which it covers, particularly since they are, in essence, online retail services and services related to online sales platforms.
68      Third, as regards the red colour of the concentric circles, represented on a white background, it must be observed that the red and white colour combination of the contested mark itself constitutes a basic colour combination,
commonly
and widely used in everyday life.
69      Thus, in the light of the case-law cited in paragraphs 60 and 61 above, the Board of Appeal did not make an error of assessment when it found, in paragraph 37 of the contested decision, that the contested mark was excessively simple and did not have any aspect easily and instantly memorable by the relevant public which would enable it to be perceived immediately as an indication of the commercial origin of the goods and services at issue. Accordingly, the Board of Appeal was fully entitled to find that that mark was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001.
70      That finding cannot be called into question by the applicant’s arguments.
71      In respect of the arguments by which the applicant criticises the Board of Appeal for failing to assess the distinctive character of the contested mark with regard to the services at issue, it should be noted that, after considering, in paragraph 35 of the contested decision, the services in respect of which that mark was registered and following the examination, in paragraphs 38 to 39, 42 and 46 of the contested decision, of the elements constituting that mark in relation to the services at issue, that Board of Appeal concluded, in paragraph 48 of the contested decision, that the mark in question was devoid of distinctive character in respect of all the services at issue. Furthermore, as is established in paragraph 67 above, that Board of Appeal was right to find that such a mark would not attract the attention of the relevant public in a digital context.
72      As regards the arguments by which the applicant criticises the Board of Appeal for relying on examples submitted by the intervener which do not show that three concentric circles are used in the context of offering the services at issue and for not taking account of the actual use of the contested mark in connection with the services at issue, it must be borne in mind that EUIPO must, in its examination of the distinctive character of a sign, refer to the reproduction of the mark as attached to the registration application (judgment of 9 November 2016, Birkenstock Sales v EUIPO (Representation of a pattern of wavy, crisscrossing lines), T‑579/14, EU:T:2016:650, paragraph 38) and that, as is apparent from the case-law cited in paragraph 34 above, that examination must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the perception of them by the relevant public. Accordingly, the Board of Appeal cannot be required to examine actual use of the contested mark on the market.
73      Lastly, as regards the arguments by which the applicant criticises the Board of Appeal for wrongly departing from its previous practice, it must be borne in mind that the legality of decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO are called on to take under Regulation 2017/1001, which are adopted in the exercise of circumscribed powers and are not a matter of discretion, must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of EUIPO’s previous decision-making practice (judgments of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47; of 12 January 2006, Deutsche SiSi-Werke v OHIM, C‑173/04 P, EU:C:2006:20, paragraph 48; and of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
74      In the light of the foregoing, the second plea must be rejected, and the present action must be dismissed in its entirety.
Costs
75      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.
76      Since the applicant has been unsuccessful and a hearing was convened, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO, which requested that the applicant be ordered to pay the costs in the event that an oral hearing is convened, and with that sought by the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Target Brands, Inc. to pay the costs.
Marcoulli
Tomljenović
Valasidis
Delivered in open court in Luxembourg on 9 July 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.