JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
13 May 2020 (*)
(EU trade mark — Opposition proceedings — Application for EU word mark City Mania — Earlier EU word mark City Lights — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑381/19,
adp Gauselmann GmbH, established in Espelkamp
(Germany), represented by P. Koch Moreno, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Palmero
Cabezas, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being:
Gameloft SE, established in Paris (France),
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 11 April 2019 (Case R 976/2018-2), relating to opposition proceedings between adp Gauselmann and Gameloft,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg and R. Mastroianni (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 21 June 2019,
having regard to the response lodged at the Court Registry on 27 September 2019,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 17 October 2016, Gameloft SE filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
2        Registration as a mark was sought for the word sign City Mania.
3        The goods in respect of which registration was sought fall, after the restriction made in the course of the proceedings before EUIPO, within Classes
9 and 28 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, and correspond, for each of those classes, to the following description:
–        Class
9: ‘Game software for desk top, lap top or palm top computers, for mobile telephones, for consoles, for organisers, fixed or portable; Video game software adapted for use with television receivers only; Computer and video games software; CD-ROMs, program memory cartridges; Data carriers containing data for computers, mobile phones, organisers, fixed or portable, or video game consoles; Sound and video recording media for electronic games apparatus’;
–        Class
28: ‘Video game equipment other than those adapted for use with television receivers only’.
4        The trade mark application was published in European Union Trade Marks Bulletin
No 2016/207 of 2 November 2016.
5        On 13 January 2017, the applicant, adp Gauselmann GmbH, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) against registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6        The opposition was based on the earlier EU word mark City Lights, registered on 4 December 2016 under number 015126841 and covering, inter alia, goods in Classes
9 and 28 corresponding, for each of those classes, to the following description:
–        Class
9: ‘Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; Apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; Apparatus for recording, transmission or reproduction of sound or images; Magnetic data carriers, recording discs; Compact discs, DVDs and other digital recording media; Cash registers, calculating machines, data processing equipment, computers; Computer software; Fire-extinguishing apparatus; Musical jukeboxes and parts for the aforesaid automatic machines; Automatic cash dispensers, automatic money counting and money changing machines; Coin-operated mechanisms; Computer and video games software; Games software for use on any computer platform, including electronic entertainment and game consoles; Computer game programs; Video games (software); Computer games provided through a global computer network or supplied by means of multimedia electronic broadcast or through telecommunications or electronic transmission or via the Internet; Computer games, leisure and recreational software, video games and computer software, all being provided in the form of storage media; Programs for operating electric and electronic apparatus for games, amusement and/or entertainment purposes; automatic lottery machines; computer software for computer games on the Internet; Online games (software), in particular for online betting games, online prize games, online gambling games, online games of skill and online casino games; computer software in the form of an app for mobile devices and computers; Calculating apparatus in coin-operated machines and parts for the aforesaid goods; Apparatus for recording, transmission, processing or reproduction of data, including sound or images, including parts for all the aforesaid goods, except radio sets, television receivers, hi-fi systems, video recorders, telephone apparatus, fax machines and telephone answering machines; Computer hardware and software for casino and amusement arcade games, for gaming machines, slot machines or video lottery gaming machines or games of chance via the Internet; Electric, electronic, optical or automatic apparatus, for identifying data carriers, identity cards and credit cards, bank notes and coins; Electric, electronic or optical alarm and monitoring installations, including video cameras and apparatus for image transmission and image processing; Data processing apparatus and computers, including data processing apparatus and computers being components for data networks and parts facilitating data network communications; Electric wiring harnesses; Circuit boards, printed circuit boards (electronic components) and combinations thereof, being assemblies and parts for apparatus, included in Class
9’;
–        Class
28: ‘Games; Toys; Gymnastic and sporting articles not included in other classes; Decorations for Christmas trees; Gaming apparatus (including coin-operated apparatus); Coin-operated arcade games (machines); Games for amusement arcades (included in Class
28); Coin-operated video gaming apparatus; Video games adapted for us with external screens or monitors only; Casino fittings, namely roulette tables, roulette wheels; Coin-operated automatic gaming machines and gaming machines, in particular for gaming arcades, with or without a prize payout; Electronic or electrotechnical gaming apparatus, automatic gaming machines, gaming machines, slot machines operated by coins, tokens, banknotes, tickets or by means of electronic, magnetic or biometric storage media, in particular for commercial use in casinos and amusement arcades, with or without a prize payout; Automatic gaming machines and gaming machines, in particular for commercial use in casinos and gaming arcades, with or without a prize payout; Coin-operated gaming machines and/or electronic money-based gaming apparatus (machines), with or without prizes; Housings adapted for gaming machines, gaming apparatus and automatic gaming machines, operated by means of coins, tokens, tickets or by means of electronic, magnetic or biometric storage media, in particular for commercial use in casinos and gaming arcades, with or without prize payout; Electronic games; Electronic game entertainment apparatus and accessories; Video output game machines; Drawing apparatus for prize games and lotteries, draws or raffles; Housings of metal, plastic and/or wood for coin-operated automatic machines; Apparatus for games (including video games), other than adapted for use with external screens or monitors only; Electropneumatic and electric pulling machines (gaming machines); Gaming tables, in particular for table football, billiards, sliding games; Flying discs (toys) and darts; Electric, electronic or electromechanical apparatus for bingo games, lotteries or video lottery games and for betting offices, networked or unnetworked; LCD games consoles; Automatic gaming machines; Including all the aforesaid automatic machines, machines and apparatus operating in networks; Apparatus and devices for accepting and storing money, being fittings for the aforesaid automatic machines, included in Class
28’.
7        The grounds relied on in support of the opposition were those set out in Article 8(1)(a) and (b) of Regulation No 207/2009 (now Article 8(1)(a) and (b) of Regulation 2017/1001).
8        On 28 March 2018, the Opposition Division upheld the opposition in respect of the goods referred to in paragraph 3 above, on the basis solely of Article 8(1)(b) of Regulation 2017/1001.
9        On 25 May 2018, Gameloft filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
10      By decision of 11 April 2019 (‘the contested decision’), the Second Board of Appeal of EUIPO upheld the appeal and annulled the Opposition Division’s decision. First, in essence, it found that the relevant public would have no difficulty in identifying the visual, phonetic and conceptual differences between the signs at issue, since the common element ‘city’ is understood throughout the European Union and has only a low degree of distinctiveness in relation to the goods in question. Second, it took the view that, taking into account the relevant factors and their mutual interdependence, there was no reason to assume that there would be a likelihood of confusion for a significant part of the relevant public.
Forms of order sought
11      The applicant claims that the Court should:
–        declare that the plea in law is well
founded and annul the contested decision;
–        order that the trade mark application be rejected in its entirety;
–        order EUIPO and, as the case may be, Gameloft to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the application in its entirety;
–        order the applicant to pay the costs.
Law
13      By its first head of claim, the applicant seeks annulment of the contested decision. In support of its application, it puts forward a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, claiming, in essence, that the principle of interdependence between the factors to be taken into account in the assessment of the likelihood of confusion has been misapplied, in so far as the Board of Appeal erred in finding that the degree of similarity of the marks was insufficient to create a likelihood of confusion between them.
14      EUIPO disputes the applicant’s arguments.
Preliminary observations
15      Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
16      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
17      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
18      It is in the light of the abovementioned principles that the present action must be examined.
The relevant public
19      According to case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods or services concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
20      In the present case, the Board of Appeal found, in paragraphs 18 to 21 of the contested decision, that the Opposition Division correctly held that the relevant public comprised the general public of the European Union displaying an average level of attention with regard to the goods in question. That assessment has not been challenged by the parties.
Comparison of the goods concerned
21      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
22      In the present case, both the Opposition Division and the Board of Appeal found that the goods in question were identical. That assessment has not been challenged by the parties.
Comparison of the signs at issue
23      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of the likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
24      In addition, it should be noted that the greater or lesser degree of distinctiveness of the elements common to a mark applied for and to an earlier mark is one of the relevant factors in assessing the similarity of the signs (see, to that effect, judgment of 14 September 2017, Aldi Einkauf v EUIPO — Weetabix (Alpenschmaus), T‑103/16, not published, EU:T:2017:605, paragraph 47 and the case-law cited).
25      The applicant disputes the assessment carried out by the Board of Appeal of the distinctive and dominant character of the elements composing the marks at issue. In accordance with the case-law cited in paragraph 23 above, it is necessary to examine the applicant’s arguments relating to that question before making a visual, phonetic and conceptual comparison of the signs at issue.
The distinctive and dominant elements of the signs at issue
26      It must be borne in mind that, according to case-law, for the purpose of assessing the distinctive character of a trade mark or of a constituent element of a mark, an assessment must be made of the greater or lesser capacity of that mark or element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of the mark or element in question and to ask whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 14 September 2017, Alpenschmaus, T‑103/16, not published, EU:T:2017:605, paragraph 48 and the case-law cited).
27      In the present case, first of all, in paragraph 31 of the contested decision, the Board of Appeal rightly noted that the signs at issue each consisted of two word elements, of which the first, the word ‘city’, was identical and that they differed only in their second words, namely the words ‘lights’ and ‘mania’, respectively.
28      Next, in paragraph 32 of the contested decision, the Board of Appeal took the view that the word element ‘city’ would be understood by the relevant public as the designation in English of a large and often densely populated human settlement and infrastructure in a built-up environment. It added that, in the context of the goods in question, many video games consist in building or maintaining a city or are related to such activities. Therefore, the element ‘city’ is likely to be perceived throughout the European Union as referring to the nature of the goods in question and, consequently, possesses only a weak distinctive character in relation to the goods in question. As regards the term ‘lights’ in the earlier mark and the term ‘mania’ in the contested trade mark, the Board of Appeal stated that they are distinctive to a normal degree in respect of the goods in question.
29      The applicant takes the view, unlike the Board of Appeal, that the word ‘city’ is a dominant element of the marks in question in so far as it is placed first in each mark and is not descriptive of the goods in Classes
9 and 28. In particular, the applicant contends that the term ‘city’ does not designate the quality, a feature, the origin or any other characteristic of the goods in question and it must therefore be regarded as a distinctive term.
30      EUIPO disputes the applicant’s arguments.
31      In the first place, it is necessary to examine whether the Board of Appeal was correct in finding that the element ‘city’, which is common to the marks at issue, had a low degree of distinctiveness.
32      It must first of all be recalled, in accordance with the case-law cited in paragraph 26 above, that the relevant public will understand that the element common to both of the signs at issue means ‘city’. Next, it is clear that the idea of a city is unlikely to contribute to identifying the goods at issue, namely games software for video and computer games and video games apparatus, as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings. As the Board of Appeal noted, the term ‘city’ has a certain descriptive dimension in so far as it will be perceived by the relevant public as alluding to a characteristic of the goods covered by the marks at issue, namely games software for video and computer games and video games apparatus that serve the purpose of building or maintaining a city.
33      In particular, as EUIPO correctly submits, the element ‘city’ has a low degree of distinctiveness for all consumers in the European Union in relation to the goods in question.
34      In those circumstances, the Board of Appeal was correct in finding that the inherent distinctive character of the element ‘city’, which is common to the marks at issue, is weak.
35      In the second place, as regards the distinctiveness of the element ‘mania’ in the mark applied for, it must be stated, as the Board of Appeal did, that a significant part of the relevant public, which consists of the general public of the European Union, will be able to understand the meaning of that term, namely a personal obsession, compulsion, obsessive need or excessive excitement and enthusiasm. It follows that the element ‘mania’ is distinctive only to a normal degree in respect of the goods in question.
36      In the third place, as to the distinctiveness of the element ‘lights’ in the earlier mark, it should be recalled that the Board of Appeal held that the term ‘lights’ would be understood by consumers who understand English and, according to the online Oxford Dictionary, as ‘the medium of visual perception generally or the condition of space in which light is present, and in which therefore vision is possible’. It follows that the element ‘lights’ is distinctive only to a normal degree in respect of the goods in question.
37      Even if, as the applicant states, the consumer normally pays more attention to the beginning of a word, this is not so in the present case, on account of the weak distinctive character of the element ‘city’, which is neither dominant nor more visible than the elements ‘mania’ and ‘lights’ in the marks at issue. As EUIPO argues, it cannot therefore be concluded that the common element ‘city’ is the dominant element of the marks at issue.
38      It is in the light of the foregoing considerations that it is necessary to examine whether the visual, phonetic and conceptual comparison of the marks at issue carried out by the Board of Appeal is vitiated by errors.
The visual and phonetic similarities
39      The Board of Appeal found that the marks at issue were visually and phonetically similar to a certain degree inasmuch as they have in common the element ‘city’, while observing that they are different on account, respectively, of the words ‘lights’ and ‘mania’.
40      The applicant argues that the signs at issue are identical or highly similar, as, visually, the two signs have the same structure, each with the word ‘city’ placed first, and are very similar in length.
41      EUIPO disputes the applicant’s arguments.
42      In that regard, it should be noted, first of all, that the signs at issue are word signs composed of two words each, of which the first, ‘city’, is common to them and is placed at
the beginning. However, the signs in question are differentiated by the addition of a second word, namely the word ‘mania’ in the mark applied for and the word ‘lights’ in the earlier mark.
43      As regards the visual comparison, although it cannot be denied that the word ‘city’, placed at the beginning of both marks, introduces elements of visual similarity between the signs at issue, it is necessary nevertheless to uphold the Board of Appeal’s assessment that the visual similarity between the signs at issue, taken as a whole, is only weak.
44      Contrary to the applicant’s assertions, the impact of the common element ‘city’ on the overall impression produced by the marks at issue is not enhanced by any dominant or distinctive character. As is apparent from the considerations set out in paragraphs 31 to 34 above, the relevant public will perceive the word ‘city’ as an allusion to a characteristic of the goods in question and will therefore attach no particular importance to that element, or to the fact that it is placed at the beginning of the marks at issue.
45      Next, as the Board of Appeal correctly stated, the other words which make up the marks at issue are visually completely different. Contrary to what the applicant asserts, the very similar length of the second word and the structure of the signs do not support the view that the overall impression produced by the marks at issue is identical or highly similar.
46      In those circumstances, it must be concluded that the elements common to the marks at issue are largely outweighed by their different elements, which means that, taken as a whole, those marks have, contrary to the Board of Appeal’s finding in paragraph 52 of the contested decision, only a low degree of visual similarity.
47      Similar considerations apply to the phonetic comparison of the signs. It should be noted that, first, the sign applied for contains four syllables and the earlier sign has three and that, second, the pronunciation of the first two syllables ‘ci’ and ‘ty’ is identical. That being the case, the pronunciation of the last syllables, namely ‘ma’ and ‘nia’ in respect of the mark applied for and ‘lights’ as regards the earlier mark, do not have any elements in common, which means that, taken as a whole, the marks at issue, contrary to the Board of Appeal’s finding in paragraph 52 of the contested decision, only have a low degree of phonetic similarity.
The conceptual similarity
48      As regards conceptual similarity, the Board of Appeal noted that the two signs, taken as a whole, refer to different concepts, even though they share the word ‘city’. Taken as a whole, the earlier mark is associated with the idea of street lighting in a city. For its part, the mark applied for is associated with the enthusiasm or obsession that a person might have in relation to a city. Therefore, the Board of Appeal maintains that for consumers who understand the two terms comprising each sign and for those who understand only the word ‘city’, the marks are conceptually similar only to a low degree.
49      The applicant has not made any express submissions on the conceptual comparison and merely states that the term ‘mania’ means, in its view, ‘a personal obsession, compulsion, obsessive need or excessive excitement and enthusiasm’ and that the term ‘lights’ could be understood in the sense of ‘a piece of equipment that produces light, such as a lamp or a bulb’.
50      EUIPO disputes the applicant’s arguments.
51      It is therefore necessary to examine whether the Board of Appeal was correct in finding that the signs at issue were similar to a low degree.
52      The marks at issue conjure up the notion of a city as a result of the common element ‘city’. That said, it cannot be denied that the two respective parts of the two signs are conceptually different. In view of the fact that the semantic content of the word ‘mania’ will be immediately understood by a significant part of the relevant public, the mark applied for also refers to the idea of a personal obsession, compulsion, obsessive need or excessive excitement and enthusiasm and thus to a very different concept from that evoked by the earlier mark. The element ‘lights’ in the earlier mark will be perceived, for its part, either as meaningless, or as referring to the idea of ‘lights’.
53      In view of the foregoing considerations and, in particular, paragraphs 43, 47 and 52 above, it must be concluded that, despite the presence of the identical element ‘city’, the marks at issue are visually, phonetically and conceptually similar to a low degree.
The likelihood of confusion
54      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
55      The Board of Appeal found, in paragraph 54 of the contested decision, that, taking into account the mutual interdependence of the factors, there was no reason to assume that a significant part of the relevant public would be led to believe that the identical goods in question originate from the same undertaking or, as the case may be, from undertakings that are economically linked.
56      The applicant maintains that the Board of Appeal failed to apply or at least misapplied the principle of interdependence of the factors to be taken into account in the assessment of the likelihood of confusion, according to which a lesser degree of similarity between the signs may be offset by a greater degree of similarity between the goods and services and vice versa. In particular, the applicant takes the view that there is a clear likelihood of confusion between the signs at issue, since they cover identical goods and are both composed with the word ‘city’ placed first.
57      EUIPO disputes the applicant’s arguments.
58      In that regard, it is important to note that, according to the case-law cited in paragraphs 16 and 54 above, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods and services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods and services covered.
59      In addition, it is apparent from case-law that, where the elements of similarity between two signs are the result of the fact that they have a weakly distinctive component in common, the impact of those elements of similarity on the global assessment of the likelihood of confusion is itself low (see judgment of 22 February 2018, International Gaming Projects v EUIPO — Zitro IP (TRIPLE TURBO), T‑210/17, not published, EU:T:2018:91, paragraph 73 and the case-law cited).
60      It follows from the considerations set out in paragraphs 39 to 53 above that the signs at issue have only a weak degree of visual, phonetic and conceptual similarity. The existing similarities between the signs at issue are not particularly significant in the present case. They are restricted to the presence of the element ‘city’, which has a weak distinctive character, and are offset to a large extent by the presence of the endings ‘mania’ and ‘lights’. Although the elements ‘mania’ and ‘lights’ may also have a weak distinctive character with respect to certain goods and for certain parts of the relevant public, they give rise to a difference between the signs at issue, taken as a whole. The circumstances of the case are therefore such that the relevant public will clearly distinguish the signs at issue, even though they have a weak degree of similarity due to the presence of the common element ‘city’.
61      Having regard to all of the foregoing, it must be held that the differences between the marks at issue are sufficient to prevent the similarities, which result from the fact that they have in common the element ‘city’, leading to the risk that the relevant public might believe that the goods in question come from the same undertaking or from economically linked undertakings.
62      The Board of Appeal was therefore correct to take the view that there is no likelihood of confusion in the present case.
63      It follows from all the above considerations that the single plea raised by the applicant must be rejected, as must, consequently, the application in its entirety, without there being any need to rule on the admissibility of the applicant’s second head of claim, requesting that the Court order that the trade mark application be rejected in its entirety, since that head of claim depends on the action for annulment being upheld and is therefore put forward only in the event that the first head of claim is successful (see, to that effect, judgment of 27 February 2019, Aytekin v EUIPO — Dienne Salotti (Dienne), T‑107/18, not published, EU:T:2019:114, paragraph 84 and the case-law cited).
Costs
64      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders adp Gauselmann GmbH to pay the costs.
Spielmann
Öberg
Mastroianni
Delivered in open court in Luxembourg on 13 May 2020.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.