JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
17 October 2017 (*)
(EU trade mark — Application for the EU word mark SCATTER SLOTS — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — Distinctive character acquired through use — Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation (EU) 2017/1001))
In Case T‑704/16,
Murka Ltd, established in Tortola (British Virgin Islands), represented by S. Santos Rodriguez, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
ACTION brought against the decision of the First Board of Appeal of EUIPO of 21 June 2016 (Case R 471/2016-1), concerning the application for registration of the word sign SCATTER SLOTS as an EU trade mark,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, R. Barents (Rapporteur) and J. Passer, Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 26 September 2016,
having regard to the response lodged at the Court Registry on 14 December 2016,
further to the hearing on 27 June 2017,
gives the following
Judgment
Background to the dispute
1        On 24 September 2015, the applicant, Murka Ltd, 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 SCATTER SLOTS.
3        The services in respect of which registration was sought are in Class 41 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 to the following description: ‘Betting services; casinos; electronic games services provided by means of the internet; electronic games services, including provision of computer games on-line or by means of a global computer network; entertainment by means of telephone; game services provided by means of communications by computer terminals or mobile telephone; game services provided on-line from a computer network; entertainment services provided on-line from a computer database or the internet’.
4        By letter of 9 October 2015, the examiner informed the applicant that the mark applied for was not eligible for registration on the ground that it was descriptive for the purposes of Article 7(1)(c) of Regulation No 207/2009 (now Article 7(1)(c) of Regulation 2017/1001) and devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation (now Article 7(1)(b) of Regulation 2017/1001). The examiner considered, in particular, that the sign SCATTER SLOTS would immediately be perceived by consumers, without further thought, as referring to services relating to casinos, betting and gaming and entertainment services with slot machines.
5        In the absence of any reply from the applicant, the examiner, by decision of 27 January 2016, rejected the application for registration on the ground that that application came within the scope of the grounds for refusal set out in Article 7(1)(b) and (c) and Article 7(2) of Regulation No 207/2009 (now Article 7(2) of Regulation 2017/1001).
6        On 10 March 2016, the applicant filed a notice of appeal against that decision with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001).
7        By decision of 21 June 2016 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the appeal. It considered, in particular, in paragraphs 11 to 13 of the contested decision, that the services covered by the mark applied for consisted essentially of different types of entertainment which are provided on-line and are therefore aimed at the average consumer, whose level of attention was, however, likely to be relatively high, since some betting services might have a significant financial impact on that consumer. The Board of Appeal added, in paragraph 14 of the contested decision, that the examination of registrability had to be based on the perception of the public in the European Union with a basic understanding of English since the mark applied for consists of basic English words. The Board of Appeal observed, in paragraph 17 of the contested decision, first, that the word ‘scatter’ could be perceived as a reference to a ‘scatter symbol’, a category of symbols which are used in various slot-machine type games and indicate rewards, act as a multiplier or activate bonus features and, second, that the word ‘slots’, which was defined as an abbreviated word used for ‘a slot machine’, referred to a gambling device. It added, in paragraph 19 of the contested decision, that the relevant consumer would immediately and without any degree of thought deduce the conceptual content of the mark applied for, namely as referring to gambling machines characterised by the ‘scatter’ function. It therefore concluded, in paragraph 29 of the contested decision, that the mark applied for was descriptive of the services in question. The Board of Appeal also found, in paragraph 33 of the contested decision, that the mark applied for was devoid of any distinctive character since it would be perceived by the relevant consumer as an indication of informative value. Lastly, the Board of Appeal found, in paragraph 48 of the contested decision, that none of the evidence submitted by the applicant made it possible to conclude that the mark applied for had, in the European Union, acquired distinctive character through use, for the purposes of Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001).
Forms of order sought
8        The applicant claims that the Court should:
–        annul the contested decision and allow the registration of the mark applied for;
–        order EUIPO to pay the costs both before the General Court and before the Board of Appeal.
9        EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
Admissibility
The admissibility of the head of claim requesting that the registration of the mark applied for be allowed
10      In the context of its first head of claim, the applicant requests that the Court, in addition to annulling the contested decision, allow the registration of the mark applied for. EUIPO submits that that head of claim is inadmissible, which was noted in the minutes of the hearing.
11      According to settled case-law, EUIPO is required, under Article 65(6) of Regulation No 207/2009 (now Article 72(6) of Regulation 2017/1001), to take the measures necessary to comply with the judgment of the EU judicature delivered in an action against the decision of the Board of Appeal of EUIPO. Accordingly, it is not for the Court to issue directions to EUIPO (judgment of 14 February 2008, Orsay v OHIM — Jiménez Arellano (O orsay), T‑39/04, not published, EU:T:2008:36, paragraph 15 and the case-law cited).
12      It follows that the head of claim seeking registration of the mark applied for is inadmissible.
The admissibility of documents produced for the first time before the Court
13      The applicant seeks to rely, in Annexes A 3.1 and A 3.2 to the application, on various items of evidence relating to the examination of the mark applied for in Australia. EUIPO maintains that those annexes are inadmissible on the ground that they were not submitted in the course of the administrative proceedings.
14      The applicant stated at the hearing, in reply to a question put to it by the Court that, although it had submitted those documents only at the stage of the action before the Court and not in the course of the proceedings before EUIPO, it had done so in response to arguments regarding the registration of the mark applied for in Australia which were set out only in the contested decision.
15      In that regard, it should be borne in mind that the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO, as provided for in Article 65 of Regulation No 207/2009. Consequently, it is not the Court’s function to review the facts in the light of evidence produced for the first time before it (judgments of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraphs 136 and 138, and of 15 July 2014, Łaszkiewicz v OHIM — Cables y Eslingas (PROTEKT), T‑18/13, not published, EU:T:2014:666, paragraph 18).
16      It must be held that the applicant, which had already relied on the registration of the mark applied for in Australia before the Board of Appeal, a registration which it had, moreover, attached as an annex to its appeal against the examiner’s decision, should, in the context of that appeal, have included all the relevant evidence to that effect. The applicant cannot, in that regard, claim that the contested decision contains new arguments to which it was required to respond by submitting new pieces of information. The Board of Appeal simply reproduced the settled case-law according to which EUIPO is not bound by decisions taken in a third country (see paragraph 26 of the contested decision).
17      In those circumstances, Annexes A 3.1 and A 3.2, which are referred to in paragraph 13 above and were not produced in the course of the administrative proceedings, must be declared to be inadmissible. The review of the legality of the contested decision will therefore be carried out in the light solely of the evidence which was produced during the administrative proceedings as it appears in EUIPO’s case file (see, to that effect, judgments of 15 July 2014, PROTEKT, T‑18/13, not published, EU:T:2014:666, paragraph 20, and of 13 September 2016, Globo Comunicação e Participações v EUIPO (Sound mark), T‑408/15, EU:T:2016:468, paragraph 20).
Substance
18      The applicant relies on three pleas in law in support of its action. The first plea alleges infringement of Article 7(1)(c) of Regulation No 207/2009, the second alleges infringement of Article 7(1)(b) of that regulation and the third alleges infringement of Article 7(3) of that regulation.
The first plea, alleging infringement of Article 7(1)(c) of Regulation No 207/2009
19      As regards the first plea, the applicant complains, in essence, that the Board of Appeal erred in finding that the word sign SCATTER SLOTS was descriptive as regards the services covered by the application for registration.
20      Article 7(1)(c) of Regulation No 207/2009 provides that ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ must not be registered. Furthermore, Article 7(2) of Regulation No 207/2009 states that ‘paragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the [Union]’.
21      According to the case-law, Article 7(1)(c) of Regulation No 207/2009 prevents the signs or indications to which it refers from being reserved to one undertaking alone because they have been registered as trade marks. That provision thus pursues an aim in the public interest, which requires that such signs or indications may be freely used by all (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31; of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 19, and of 27 February 2015, Universal Utility International v OHIM (Greenworld), T‑106/14, not published, EU:T:2015:123, paragraph 14).
22      Furthermore, signs or indications which may serve, in trade, to designate characteristics of the goods or services in respect of which registration is sought are, pursuant to Article 7(1)(c) of Regulation No 207/2009, deemed to be incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, thus enabling the consumer who acquired the goods or services designated by the mark to choose to acquire them again if it was a positive experience, or to avoid doing so, if it was negative (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 15).
23      It follows that, for a sign to be caught by the prohibition set out in that provision, there must be a link between the sign and the goods or services in question that is sufficiently direct and specific to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or of one of their characteristics (see judgment of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 16 and the case-law cited).
24      In that regard, it must be borne in mind that the issue of the descriptiveness of a mark consisting of several words, such as that which is the subject of the dispute, may be assessed, in part, in relation to each of the terms of which it consists, taken separately, but must, in any event, also be established in relation to the whole which they comprise (see order of 6 February 2009, MPDV Mikrolab v OHIM, C‑17/08 P, not published, EU:C:2009:64, paragraph 38 and the case-law cited).
25      A trade mark consisting of a word composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of those characteristics for the purposes of Article 7(1)(c) of Regulation No 207/2009, unless there is a perceptible difference between the word and the mere sum of its parts. That presupposes that, because of the unusual nature of the combination in relation to the goods or services, the word creates an impression which is far enough removed from that conveyed by a simple combination of the meanings of its constituent elements that it is more than the sum of its parts. In that connection, analysis of the word at issue in light of the appropriate lexical and grammatical rules is also relevant (judgments of 25 February 2010, Lancôme v OHIM, C‑408/08 P, EU:C:2010:92, paragraph 63, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 18).
26      Furthermore, the Court of Justice has held, first, that the application of Article 7(1)(c) of Regulation No 207/2009 does not require the sign at issue to be the usual means of designation (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 40). Second, for EUIPO to refuse registration under Article 7(1)(c) of Regulation No 207/2009, it is not necessary that the signs and indications composing the mark that are referred to in that provision actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes. A word sign must thus be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32).
27      It must also be borne in mind that the assessment of whether a sign is descriptive can be conducted only, first, by reference to the relevant public’s perception of that sign and, second, by reference to the goods or services concerned (judgments of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 38, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 19).
28      As regards the relevant public, it must be pointed out, as is apparent from paragraphs 11 to 13 of the contested decision, that the services covered by the mark applied for consist essentially of different types of entertainment which are provided online and are aimed at the average consumer. However, although some of those services are very inexpensive and require little attention, the same is not true of the services relating to betting, which may entail significant financial consequences for the consumer, with the result that the consumer’s level of attention is likely to be relatively high.
29      The applicant disputes paragraph 14 of the contested decision, in which the Board of Appeal found that, since the mark applied for comprises basic English words, the examination of registrability had to be based on the perception of the relevant consumers in the European Union who have a basic understanding of English.
30      In that regard, it must be held that it cannot reasonably be maintained that the words ‘scatter’ and ‘slots’ are among the basic English words which all consumers in the European Union know.
31      It follow that, since the mark applied for consists of elements that are in English, the issue of whether there are absolute grounds for refusal in the present case must be assessed by reference to the English-speaking consumers in the European Union, to whom the Board of Appeal, moreover, referred (see, in particular, paragraph 37 of the contested decision).
32      Consequently, in accordance with Article 7(2) of Regulation No 207/2009, the relevant public by reference to which the absolute ground for refusal must be assessed is an English-speaking public, since the word sign at issue consists of elements derived from English (see, judgment of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 22 and the case-law cited).
33      Accordingly, it is necessary, for the purposes of applying Article 7(1)(c) of Regulation No 207/2009, to consider, on the basis of a given meaning of the word sign at issue, whether there is, from the point of view of the relevant public, a sufficiently direct and specific link between the sign SCATTER SLOTS and the services in respect of which registration is sought (see, to that effect, judgments of 26 November 2003, HERON Robotunits v OHIM (ROBOTUNITS), T‑222/02, EU:T:2003:315, paragraph 38, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 23).
34      In the first place, it be held that, as the Board of Appeal found in paragraph 17 of the contested decision, the word ‘scatter’ may be understood, in view of the services in question, as a reference to a ‘scatter symbol’, which is — and this finding has not been disputed by the applicant — a category of symbols which are used in various slot-machine type games and indicate rewards, act as a multiplier or activate bonus features.
35      Furthermore, it is common ground that the word ‘scatter’, considered separately, means ‘to cause to separate and go in different directions’, as the applicant points out.
36      However, although it is true that, as the applicant submits, the Board of Appeal attributed to the word ‘scatter’ the meaning given to ‘scatter symbol’ and not the meaning given to the word itself, the fact remains that, in view of the services in question, the consumer of those services will immediately and without further thought understand the use of the word ‘scatter’ as referring to a ‘scatter symbol’, which is a concept that is very well known to the relevant consumers.
37      In this context, it may seem surprising that, in the present action, the applicant again challenges the examiner’s decision, on the ground that, in its view, the examiner, as regards the examination of the meaning of the word ‘scatter’, referred not to that word, but to ‘scatter symbol’, and does not challenge the decision of the Board of Appeal, which, however, specifically stated, in particular in paragraphs 16 to 18 of the contested decision, the reasons why, in the mind of the relevant consumer, the word ‘scatter’ would be associated with a ‘scatter symbol’. Although the applicant has insisted on drawing a distinction, as regards their meaning, between the word ‘scatter’ and a ‘scatter symbol’, it has not, however, in any way cast doubt on the Board of Appeal’s finding that the consumer at whom the services in question are aimed would immediately and directly make a link between the word ‘scatter’ and a ‘scatter symbol’. It follows that it is not true that, as the applicant claims, the Board of Appeal found that the descriptiveness of the word ‘scatter’ was the result solely of the fact that the word ‘slots’ follows the word ‘scatter’. On the contrary, it is apparent specifically from paragraph 17 of the contested decision, the content of which has just been referred to, that the Board of Appeal found that the word ‘scatter’ could be understood as an obvious reference to a ‘scatter symbol’.
38      In the second place, the word ‘slots’ is an English word which, in the context of the services in question, can be defined, as the Board found in paragraph 17 of the contested decision, a finding which has not been contradicted by the applicant, as an abbreviation of the expression ‘slot machines’.
39      It follows from those considerations that the relevant public is able to understand the meaning of each of the words ‘scatter’ and ‘slots’, considered separately (see, to that effect, judgment of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 30).
40      In the third place, considered as a whole, the neologism ‘scatter slots’, in view of the services concerned, which consist, in particular, of betting or gaming, clearly and unequivocally means ‘services connected with gambling machines characterised by the “scatter” function’.
41      In accordance with the case-law referred to in paragraph 25 above, a trade mark consisting of a word composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of the characteristics of those goods or services for the purposes of Article 7(1)(c) of Regulation No 207/2009 unless there is a perceptible difference between the neologism or the word and the mere sum of its parts. That presupposes that, because of the unusual nature of the combination in relation to the goods or services, the neologism or word creates an impression which is far enough removed from that conveyed by a simple combination of the meanings of its constituent elements that it is more than the sum of its parts.
42      In the present case, it must be held that the mere combination of the words ‘scatter’ and ‘slots’, each of which is descriptive of a characteristic of the services concerned, is itself also descriptive of a characteristic of those services. As the Board of Appeal correctly pointed out in paragraph 18 of the contested decision, a linguistic construction in which the term ‘slots’ as a reference to gambling machines follows another word qualifying a characteristic of those machines is common and banal in the context of gambling.
43      Furthermore, it must be held that such a combination of words is consistent with English syntactical and grammatical rules and is not unusual in the structure of that language.
44      In that regard, it must be borne in mind that, in paragraph 26 of the judgment of 12 January 2000, DKV v OHIM (COMPANYLINE) (T‑19/99, EU:T:2000:4), the General Court held that coupling together the terms ‘company’ and ‘line’, without any graphic or semantic modification, did not imbue them with any additional characteristic such as to render the sign, taken as a whole, capable of distinguishing the applicant’s services from those of other undertakings, and added that the fact that the sign COMPANYLINE as such did not appear in dictionaries — whether as one word or otherwise — did not in any way alter that finding. That point was confirmed in paragraph 23 of the judgment of 19 September 2002, DKV v OHIM (C‑104/00 P, EU:C:2002:506).
45      Furthermore, the applicant cannot rely on the judgment of 9 October 2002, Dart Industries v OHIM (UltraPlus) (T‑360/00, EU:T:2002:244), in which the General Court annulled the decision of EUIPO, which had refused registration of the sign UltraPlus on the ground that that sign was descriptive of the goods covered by the trade mark application. It is sufficient to state in that regard that, as EUIPO correctly pointed out at the hearing, that sign consisted of a prefix and a suffix, characteristics which are not in any way to be found in the mark applied for, which consists of two descriptive terms.
46      Furthermore, as regards the applicant’s argument that the mark applied for is not descriptive, since few marks use the word ‘scatter’, it must be borne in mind that it is not necessary that the signs and indications composing the mark that are referred to in Article 7(1)(c) of Regulation No 207/2009 actually be in use at the time of the application for registration in a way that is descriptive of the goods or services in respect of which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32; see also, by analogy, judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 97).
47      It must therefore be held that the mark applied for is not merely evocative or suggestive, but describes the actual subject matter of the services covered by that mark, namely services connected with gambling machines characterised by the ‘scatter’ function.
48      However, the applicant also submits that, in any event, even if the terms ‘scatter’ and ‘scatter symbol’ were equivalent, the mark applied for would in no way be descriptive with regard to the ‘electronic games services provided by means of the internet; electronic games services, including provision of computer games on-line or by means of a global computer network; entertainment by means of telephone; game services provided by means of communications by computer terminals or mobile telephone; game services provided on-line from a computer network; entertainment services provided on-line from a computer database or the internet’, which that mark also covers.
49      By that argument, the applicant, in essence, complains that the Board of Appeal adopted general reasoning with regard to all of the services in question, even though, in the applicant’s view, the mark applied for is not, in any event, at all descriptive in relation to the services listed in paragraph 48 above.
50      In that regard, it must be borne in mind that the duty upon EUIPO to state reasons for refusing to register a trade mark in relation to each of the goods or services for which such registration is sought also arises from the essential requirement for any decision of EUIPO refusing the benefit of a right conferred by EU law to be subject to judicial review which is designed to secure effective protection for that right and which, accordingly, must cover the legality of the reasons for the decision (see, by analogy, judgment of 15 February 2007, BVBA Management, Training en Consultancy, C‑239/05, EU:C:2007:99, paragraph 36 and the case-law cited).
51      However, where the same ground of refusal is given for a category or group of goods or services, EUIPO may use only general reasoning for all of the goods and services concerned (see, to that effect, order of 11 December 2014, FTI Touristik v OHIM, C‑253/14 P, not published, EU:C:2014:2445, paragraph 48; see also, by analogy, judgment of 15 February 2007, BVBA Management, Training en Consultancy, C‑239/05, EU:C:2007:99, paragraph 37).
52      Accordingly, the competent authority may use only general reasoning where the ground of refusal is given for a category or group of goods or services that have a sufficiently direct and specific link to each other to the extent that they form a sufficiently homogeneous category or group of goods or services (judgments of 2 April 2009, Zuffa v OHIM (ULTIMATE FIGHTING CHAMPIONSHIP), T‑118/06, EU:T:2009:100, paragraph 28, and of 23 September 2015, Reed Exhibitions v OHIM (INFOSECURITY), T‑633/13, not published, EU:T:2015:674, paragraph 46; see also, to that effect, order of 11 December 2014, FTI Touristik v OHIM, C‑253/14 P, not published, EU:C:2014:2445, paragraph 48).
53      In that regard, it must be held that, as EUIPO has correctly pointed out, the broad terms which appear in the list of services covered by the mark applied for also cover gaming services related to slot machines, including those provided by means of the internet or mobile phones, with the result that the same ground of refusal could be given for all of the services covered by the mark applied for.
54      That finding that those services extend to gaming services related to slot machines is not, moreover, even disputed by the applicant since it takes the view that ‘these services do not limit exclusively to slot machines’. Accordingly, by stating that those services do not relate exclusively to slot machines, the applicant does not deny that, irrespective of the medium used, those services also extend to slot machines.
55      In the fourth place, as regards the applicant’s argument that the mark applied for has been registered in Australia, a country which, in its view, applies a provision similar to Article 7(1)(c) of Regulation No 207/2009, it is sufficient to point out that, according to settled case-law, the EU trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it. It applies independently of any national system. Consequently, the registrability of a sign as an EU trade mark must be assessed by reference only to the relevant EU rules (judgments of 10 May 2012, Amador López v OHIM (AUTOCOACHING), T‑325/11, not published, EU:T:2012:230, paragraph 45, and of 25 September 2015, August Storck v OHIM (2good), T‑366/14, not published, EU:T:2015:697, paragraph 42).
56      It follows from all of the foregoing that the first plea, alleging infringement of Article 7(1)(c) of Regulation No 207/2009, must be rejected.
The second plea, alleging infringement of Article 7)(1)(b) of Regulation No 207/2009
57      The applicant claims, in the context of the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009, that the word sign SCATTER SLOTS has distinctive character.
58      In that regard, it must be borne in mind that, as is clear from the wording of Article 7(1) of Regulation No 207/2009, it is sufficient that one of the absolute grounds for refusal listed in that provision applies for the sign in question to be ineligible for registration as an EU trade mark (order of 13 February 2008, Indorata-Serviços e Gestão v OHIM, C‑212/07 P, not published, EU:C:2008:83, paragraph 27, and judgment of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 33).
59      There is therefore no need to rule on the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009 (see, to that effect, judgment of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 34).
The third plea, alleging infringement of Article 7(3) of Regulation No 207/2009
60      The applicant, in essence, criticises the Board of Appeal for not finding that the mark applied for had acquired distinctiveness for the purposes of Article 7(3) of Regulation No 207/2009, although it had submitted sufficient proof.
61      In that regard, it must be borne in mind that, under Article 7(3) of Regulation No 207/2009, the absolute grounds for refusal set out in Article 7(1)(b) and (c) of that regulation do not preclude the registration of a trade mark if that mark has become distinctive in relation to the goods and services for which registration is requested in consequence of the use which has been made of it.
62      According to settled case-law, Article 7(3) of Regulation No 207/2009 must therefore be interpreted as meaning that a mark must have become distinctive through use before the application was filed. Accordingly, it is irrelevant that the mark has acquired distinctiveness through use after the application was filed but before EUIPO, in the person of the examiner or, as the case may be, the Board of Appeal, has determined whether there are any absolute grounds for refusing registration of that mark. It follows that EUIPO may not take account of any evidence of use relating to the period subsequent to the date of filing (see judgment of 21 November 2012, Getty Images v OHIM (PHOTOS.COM), T‑338/11, not published, EU:T:2012:614, paragraph 45 and the case-law cited; see also, to that effect, judgment of 11 June 2009, Imagination Technologies v OHIM, C‑542/07 P, EU:C:2009:362, paragraph 49).
63      Furthermore, it is clear from the case-law that the acquisition of distinctive character through use of a mark requires that at least a significant proportion of the relevant section of the public identifies the goods or services concerned as originating from a particular undertaking because of the mark (judgments of 29 April 2004, Eurocermex v OHIM (Shape of a beer bottle), T‑399/02, EU:T:2004:120, paragraph 42; of 15 December 2005, BIC v OHIM (Shape of a lighter), T‑262/04, EU:T:2005:463, paragraph 61, and of 17 May 2011, Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ v OHIM (υγεία), T‑7/10, not published, EU:T:2011:221, paragraph 42). However, the circumstances in which that requirement may be regarded as satisfied cannot be shown to exist solely by reference to general and abstract data (judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 52, and of 17 May 2011, υγεία, T‑7/10, not published, EU:T:2011:221, paragraph 45).
64      The Court of Justice has stated that, in determining whether a mark has acquired distinctive character because of the use made of it, the competent authority must make an overall assessment of the evidence that the mark has come to identify the goods concerned as originating from a particular undertaking, and accordingly to distinguish them from goods of other undertakings (judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 49; see also, judgments of 15 December 2005, Shape of a lighter, T‑262/04, EU:T:2005:463, paragraph 63, and of 17 May 2011, υγεία, T‑7/10, not published, EU:T:2011:221, paragraph 43).
65      In that regard, account must be taken of, in particular, the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods as originating from a particular undertaking; statements from chambers of commerce and industry or other trade and professional associations; and opinion polls (see judgment of 15 December 2005, Shape of a lighter, T‑262/04, EU:T:2005:463, paragraph 64 and the case-law cited; judgment of 17 May 2011, υγεία, T‑7/10, not published, EU:T:2011:221, paragraph 44).
66      The applicant relies, in the first place, on an affidavit signed by the applicant’s director in which the figures corresponding to the monthly use, by country, of the mark applied for from January to December 2015 are set out, in the second place, on entries in respect of ‘scatter slots’, which have been taken from various websites, in the third place, on a number of comments from consumers regarding the game SCATTER SLOTS and, in the fourth place, on a graph tracing the number of downloads.
67      As regards, in the first place, the affidavit signed by the applicant’s director in which the figures corresponding to the monthly use, by country, of the mark applied for from January to December 2015 are set out, it should be noted that, in order to assess the evidential value of such an affidavit, regard should be had first and foremost to the credibility of the account it contains. It is then necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (judgments of 7 June 2005, Lidl Stiftung v OHIM — REWE-Zentral (Salvita), T‑303/03, EU:T:2005:200, paragraph 42, and of 16 November 2011, Dorma v OHIM — Puertas Doorsa (doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS), T‑500/10, not published, EU:T:2011:679, paragraph 49).
68      In the present case, the affidavit was drawn up by the applicant’s director and cannot therefore be as reliable and credible as a declaration by a third party or a person who is unconnected with the company in question. The affidavit is not, on its own, sufficient and is merely an indication which needs to be confirmed by other evidence (see, to that effect, judgments of 16 May 2013, Reber v OHIM — Klusmeier (Wolfgang Amadeus Mozart PREMIUM), T‑530/10, not published, EU:T:2013:250, paragraph 36, and of 14 April 2016, Henkell & Co. Sektkellerei v EUIPO — Ciacci Piccolomini d’Aragona di Bianchini (PICCOLOMINI), T‑20/15, EU:T:2016:218, paragraph 37).
69      As regards the other data provided by the applicant, it must be borne in mind that, in accordance with the case-law referred to in paragraph 62 above, only the data that predate the date on which the application for registration was filed may be taken into consideration, that is to say those that predate 24 September 2015 (‘the relevant date’).
70      It must be stated that the items of evidence provided by the applicant, namely the documents relating to the entries in respect of ‘scatter slots’, which have been taken from various websites (Annex A 4 to EUIPO’s case file), and the documents relating to the comments from consumers regarding the game SCATTER SLOTS (Annex A 5 to EUIPO’s case file), were all compiled after the relevant date.
71      The document relating to the entries in respect of ‘scatter slots’ taken from various websites (Annex A 4 to EUIPO’s case file) does not therefore contain any date which predates the relevant date. The same is true of the evidence relating to the comments from consumers regarding the game SCATTER SLOTS (Annex A 5 to EUIPO’s case file), which was compiled in the course of November (pp. 93 to 103, 115 to 136 and 154 to 158), October (pp. 103 to 113) and December 2015 (pp. 137 to 154 and 165 to 180) and January 2016 (pp. 159 to 165).
72      That evidence cannot therefore be taken into consideration in assessing whether the mark applied for had become distinctive as a result of its use prior to the date on which the application for registration was filed.
73      Moreover, as regards the document that contains a graph showing the number of downloads of the game SCATTER SLOTS (Annex 7 to EUIPO’s case file), the information which it contains covers April 2015 to January 2016 and does not, in the light of the case-law referred to in paragraph 65 above, show the market share held by the mark, how intensive, geographically widespread and long-standing use of the mark has been, the amount invested by the undertaking in promoting the mark, and the proportion of the relevant section of the public which, because of the mark, identifies the goods as originating from a particular undertaking, or provide statements from chambers of commerce and industry or other trade and professional associations and opinion polls. The applicant has not been able to provide any relevant data in that regard.
74      Furthermore, the number of downloads of the game SCATTER SLOTS is not high enough for it to be held that the mark applied for has acquired distinctive character on account of the use which has been made of it, in particular owing to the fact that the number of downloads as regards Ireland and Malta is so low as to be derisory.
75      Lastly, as regards the line of argument based on the order of 5 October 2004, Alcon v OHIM (C‑192/03 P, EU:C:2004:587) which the applicant put forward at the hearing, namely that the documents that postdate the relevant date should have been taken into consideration by EUIPO for the purposes of showing that the mark applied for had acquired distinctiveness through use, it must be stated that, although the Court may indeed take into account evidence which postdates the filing date of the application, this is subject to the condition that the evidence makes it possible to draw conclusions regarding the situation as it stood on that date (see, by analogy, order of 27 January 2004, La Mer Technology, C‑259/02, EU:C:2004:50, paragraph 31).
76      However, documents which postdate a relevant date, first, cannot make up for a lack of evidence predating that date and, second, must make it possible to draw conclusions regarding the situation as at the date on which the trade mark application was filed.
77      In the present case, the documents submitted by the applicant do not in any way make it possible to establish the situation as at the date on which the mark applied for was filed. They show only that there was some use of that mark after the filing date.
78      It follows from all of the foregoing considerations that the affidavit submitted by the applicant (Annex A 6 in the EUIPO file) is not supported by any document that shows that the mark applied for had acquired distinctive character through use in accordance with the case-law referred to in paragraph 65 above.
79      It follows that the applicant has not established that the mark applied for had become distinctive through use, with the result that the third plea must be rejected and the action must be dismissed in its entirety.
Costs
80      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 form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Murka Ltd to pay the costs.
Collins
Barents
Passer
Delivered in open court in Luxembourg on 17 October 2017.
E. Coulon
A. M. Collins
Registrar
President
*      Language of the case: English.