JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 May 2020 (*)
(EU trade mark — International registration designating the European Union– Figurative mark PROFI CARE — Absolute grounds for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001 — Descriptive character — Article 7(1)(c) of Regulation 2017/1001 — Obligation to state reasons)
In Case T‑5/19,
Clatronic International GmbH, established in Kempen (Germany), represented by O. Löffel, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and H. O’Neill, acting as Agents,
defendant,
ACTION brought against the decision of the First Board of Appeal of EUIPO of 15 October 2018 (Case R 504/2018-1), relating to the international registration designating the European Union in respect of the figurative mark PROFI CARE,
THE GENERAL COURT (Sixth Chamber),
composed of D. Spielmann, acting as President, Z. Csehi (Rapporteur) and O. Spineanu-Matei, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the application lodged at the Court Registry on 4 January 2019,
having regard to the response lodged at the Court Registry on 26 March 2019,
having regard to the designation of another Judge to complete the Chamber as one of its Members was prevented from acting,
further to the hearing on 6 November 2019,
gives the following
Judgment
Background to the dispute
1        On 3 July 2017, the applicant, Clatronic International GmbH, obtained international registration No 1372358 designating the European Union from the International Bureau of the World Intellectual Property Organisation (WIPO). On 26 October 2017, that international registration was notified to the European Union Intellectual Property Office (EUIPO) under 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        The trade mark that is the subject of the international registration designating the European Union is the following figurative sign:
3        The goods in respect of which registration was sought are in Classes 8, 9, 10, 11, 21 and 26 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, inter alia, for each of those classes, to the following description:
–        Class 8: ‘Hand tools and implements (hand operated); razors; hygienic and beauty implements for humans and animals; hair styling appliances; body art tools; manicure and pedicure tools; hair cutting and removal implements; hair clippers, electric and non-electric; hair-removing tweezers; beard clippers; electric or non-electric fingernail polishers; pedicure sets; electric curling irons; non-electric curling irons; electric hair straighteners; parts of the aforesaid goods, included in this class’;
–        Class 9: ‘Weighing apparatus and instruments; measuring apparatus and instruments; thermometers, not for medical purposes; scales; scales with body mass analysers; electronic weighing scales for personal use; parts of the aforesaid goods, included in this class’;
–        Class 10: ‘Medical apparatus and instruments; dental apparatus and instruments; veterinary apparatus and instruments; orthopedic articles; massage apparatus; diagnostic, testing and monitoring apparatus for medical purposes; blood pressure meters; ultrasonic cleaning instruments for medical use; ultrasonic cleaning instruments for veterinary use; ultrasonic cleaning instruments for surgical use; clinical thermometers; thermometers for medical purposes; feeding aids and pacifiers; feeding bottles; feeding bottle teats; parts of the aforesaid goods, included in this class’;
–        Class 11: ‘Food and beverage cooking, heating, cooling and treatment equipment; heating, ventilating, air conditioning and air purifying apparatus and installations; tanning apparatus [sun beds]; solaria, other than for medical purposes; tanning beds; fan heaters; radiators [heating]; blankets, electric, not for medical purposes; ventilating fans; hair dryers; hood driers; steam baths; saunas and spas; facial saunas; air purifiers; heaters, electric, for feeding bottles; sterilisation, disinfection and decontamination installations and equipment; parts of the aforesaid goods, included in this class’;
–        Class 21: ‘Brushes, brooms and other cleaning instruments and cleaning articles, material for brush-making; dental cleaning articles; cosmetic and toilet utensils and bathroom articles; toothbrushes; toothbrushes, electric; heads for electric toothbrushes; water apparatus for cleaning teeth and gums; ultrasonic cleansing devices for dental prostheses [not for medical purposes]; combs; hairbrushes; electric combs; electrically heated hair brushes; heaters for feeding bottles, non-electric; feeding bottle brushes; parts of the aforesaid goods, included in this class’;
–        Class 26: ‘Decorative articles for the hair, hair curlers, hair rollers, hair fastening articles, and false hair; electric hair rollers; electric hair curlers; curling pins; parts of the aforesaid goods, included in this class’.
4        By decision of 8 February 2018, the examiner refused, in its entirety, the application for registration in respect of the goods referred to in paragraph 3 above on the basis of Article 7(1)(b) and (c) of Regulation 2017/1001 read in conjunction with Article 7(2) of that regulation.
5        On 20 March 2018, the applicant filed a notice of appeal against that decision with EUIPO, under Articles 66 to 71 of Regulation 2017/1001.
6        By decision of 15 October 2018 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the appeal.
7        With regard to the analysis under Article 7(1)(c) of Regulation 2017/1001, the Board of Appeal held, in paragraphs 19 to 34 of the contested decision, that the mark applied for will, on account of the word element ‘profi care’, be understood as designating personal care products that constitute, or have the quality of, professional tools. It found that it was descriptive of all the goods referred to as they were directly related to personal care, including personal hygiene, and to skin care, hair care, health care and hair styling. It held, in essence, that the figurative elements of the mark applied for were merely decorative and banal and were not such as to invalidate its purely descriptive character.
8        With regard to the analysis under Article 7(1)(b) of Regulation 2017/1001, the Board of Appeal held, in paragraphs 35 to 45 of the contested decision, that the trade mark applied for was not capable of distinguishing the goods covered on the basis of their origin, on the ground that the relevant public will perceive the sign rather as a conventional laudatory indication encouraging purchase, and not as an indication of origin. Furthermore, the Board of Appeal held, in paragraphs 46 and 47 of the contested decision, that, where the sign was directly descriptive of the goods referred to under Article 7(1)(c) of Regulation 2017/1001, the trade mark applied for was not eligible for registration under Article 7(1) (b) of that regulation.
Procedure and forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision;
–        register the mark applied for;
–        order EUIPO to pay the costs.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
11      At the hearing, in response to a question from the Court, the applicant expressly abandoned the second head of claim in the application, seeking an order that EUIPO register the mark applied for, formal note of which was taken.
Law
12      In support of its action, the applicant raises four pleas in law, alleging, first, failure to state reasons and errors of assessment in the analysis of the descriptive character of the trade mark applied for, carried out under Article 7(1)(c) of Regulation 2017/1001, secondly, failure to state reasons and errors of assessment in the analysis of the lack of distinctive character of the mark applied for, carried out under Article 7(1)(b) of the regulation, thirdly, infringement of Article 94(1) of that regulation, concerning the obligation to state reasons, and, fourthly, infringement of the rights of defence and of the right to be heard.
The first plea, alleging inadequate reasoning and errors of assessment in the analysis carried out under Article 7(1)(c) of Regulation 2017/1001
13      By its first plea the applicant argues that the Board of Appeal’s finding that the mark applied for is descriptive of the goods covered is not sufficiently reasoned and is incorrect. The first plea in the action may be divided, in essence, into two parts, seeking, first, assessment of the central figurative element of the mark applied for and, secondly, assessment of the descriptive character of the mark applied for having regard to the goods covered.
14      EUIPO disputes all those arguments.
15      Under the first sentence of Article 94 of Regulation 2017/1001, decisions of EUIPO are to state the reasons on which they are based. Moreover, it should be added that the obligation to state the reasons on which EUIPO’s decisions are based has the same scope as that which derives from Article 296 TFEU. It is settled case-law that the statement of reasons required by Article 296 TFEU must disclose clearly and unequivocally the reasoning followed by the institution which adopted the measure in question. That duty is intended, first, to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights and, secondly, to enable the Courts of the European Union to exercise their power to review the legality of the decision (see judgment of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65 and the case-law cited).
16      Under Article 7(1)(c) of Regulation 2017/1001, 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, are not to be registered.
17      According to the case-law, signs or indications which may serve, in trade, to designate the characteristics of the goods or service in respect of which registration is sought are, by virtue of Article 7(1)(c) of Regulation 2017/1001, regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services, thus enabling the consumer who acquired them to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 12 June 2007, MacLean-Fogg v OHIM (LOKTHREAD), T‑339/05, not published, EU:T:2007:172, paragraph 28).
18      For a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation 2017/1001, there must be a sufficiently direct and specific link between the sign and the goods or services in question to enable the public concerned immediately to perceive, without further thought, a description of those goods or services or one of their characteristics (see judgment of 16 October 2014, Larrañaga Otaño v OHIM (GRAPHENE), T‑458/13, EU:T:2014:891, paragraph 16 and the case-law cited).
19      Furthermore, the descriptiveness of a sign may only be assessed, first, in relation to the perception which the relevant public has of that sign and, secondly, in relation to the goods or services covered (see judgment of 7 June 2005, Münchener Rückversicherungs-Gesellschaft v OHIM (MunichFinancialServices), T‑316/03, EU:T:2005:201, paragraph 26 and the case-law cited).
20      In that regard, it should be recalled that, according to the case-law, for the purposes of assessing the descriptiveness of a sign consisting of word and figurative elements, the decisive question is whether the figurative elements alter, from the point of view of the relevant public, the meaning of the mark applied for in relation to the relevant goods. It should also be recalled that, while the word element of a mark is descriptive, the mark as a whole is descriptive if the graphic elements of that mark cannot divert the attention of the relevant public from the descriptive message conveyed by the word element (see judgment of 6 April 2017, Metabolic Balance Holding v EUIPO (Metabolic Balance), T‑594/15, not published, EU:T:2017:261, paragraph 33 and the case-law cited).
21      It is in the light of those considerations that the contested decision must be examined.
The relevant public and its perception of the word elements of the mark applied for
22      In the present case, the Board of Appeal, in paragraphs 17 and 18 of the contested decision, stated that the relevant public encompassed both the general public and the professional public to which the goods covered by the mark applied for were targeted, which has an average level of attention. The Board of Appeal endorsed, in essence, the examiner’s provisional decision that the relevant public was German-speaking, while specifying that it also included English-speakers. It should be noted that that definition is not disputed by the applicant.
23      With regard to the perception of the word elements by the relevant public, the Board of Appeal found that the mark applied for will be understood by the relevant public as referring to personal care products that constitute, or have the quality of, professional tools. In that regard, it explained that the term ‘profi’, which was an abbreviation of the word ‘professional’, will be understood by the relevant public as a reference both to the public targeted by the goods and as an indication of their high level of quality.  The Board of Appeal also stated, having regard to the goods covered by the mark applied for, that the element ‘care’ will be understood as referring to ‘personal care’, since such care was included in the overall concept of ‘care’ and encompassed hygiene, beauty and health.
24      In the event that paragraph 17 of the application should be understood as disputing that finding, which, moreover, is correct, it is clear that the applicant fails to provide any submissions to support such an argument, which must be rejected.
The first part of the first plea, concerning the assessment of the central figurative element
25      In the first part, the applicant argues, in essence, that the Board of Appeal erred in considering that the wavy central figurative element was not such as to divert the relevant public from the descriptive message conveyed by the word element ‘profi care’ of the mark applied for.
26      EUIPO disputes all those arguments.
27      In paragraph 22 of the contested decision, the Board of Appeal found that the sign applied for was descriptive, in so far as all the goods covered by the mark applied for were directly related to personal care, including personal hygiene, and to skin care, hair care, health care and hair styling. It also considered that the central figurative element will be perceived as representing waves of brushed hair or steam, which reinforced the descriptive character of the mark applied for.
28      In the first place, the applicant disputes the reasoning and the interpretation of the central figurative element as referring to brushed hair or to steam, in paragraph 22 of the contested decision.
29      It must be observed, as did EUIPO, that the fact that that figurative element can be interpreted as brushed hair or steam was referred to, in paragraph 22 of the contested decision, only for the sake of completeness and in order to explain that that element could strengthen the descriptive character of the mark applied for.
30      As regards the figurative elements, the Board of Appeal principally held, in paragraphs 30, 32 and 33 of the contested decision, that they were not capable of invalidating the descriptive character of the mark applied for, and constituted only an ordinary graphic design used in all areas of daily life. In paragraphs 21 and 33 of the contested decision, it found, inter alia, that the typeface chosen was usual and that the stylisation, including black underlining, was banal, so that those elements will be perceived as merely decorative. In paragraph 31 of the contested decision, the Board of Appeal found, moreover, that the central figurative element will not be remembered by the consumer and that it was incapable of distracting the consumer’s attention from the descriptive meaning of the word element, in accordance with the case-law referred to in paragraph 20 above.
31      Therefore, the argument referred to in paragraph 28 above must be rejected, in its entirety, as irrelevant.
32      In the second place, the applicant criticises paragraph 31 of the contested decision, claiming, first, a failure to state reasons in that the Board of Appeal did not explain why the central figurative element is not capable of distracting the consumer’s attention from the descriptive meaning of the word element and, secondly, errors in assessing that central figurative element. In that regard, the applicant considers, in essence, that, contrary to the Board of Appeal’s finding, that figurative element will be perceived as a double tilde in an unusual slanted position, an approximation, an unknown sign having several meanings, such as to convey a message which the relevant public will remember. It also criticises the Board of Appeal’s use of a test which is unknown in the case-law, namely the test of a ‘lasting impression’.
33      As regards the reasoning, in paragraph 31 of the contested decision, the Board of Appeal stated, in essence, that the wavy central figurative element will not be remembered by consumers and was not capable of distracting the consumer’s attention away from the descriptive meaning of the word element of the mark applied for and of leaving a lasting impression. That reasoning must be read in conjunction with paragraph 33 of the contested decision, according to which the figurative elements of the mark applied for serve to decorate the word expression and are merely an ordinary graphic design.
34      It must be observed that that reasoning is clear and unequivocal and appears sufficient to enable the interested parties to know the justifications for the measure taken so as to enable them to defend their rights and for the EU judicature to review the legality of the decision, in accordance with the case-law cited in paragraph 15 above. Furthermore, EUIPO cannot be criticised for not responding to the applicant’s argument, raised for the first time before the General Court, that the relevant public will see, in the central figurative element of the trade mark applied for, a double tilde.
35      As to the validity of paragraph 31 of the contested decision, it is necessary, first, to examine the argument that the central figurative element of the trade mark applied for should be perceived as a slanted double tilde. In this respect, it should be noted, as pointed out by EUIPO, that the lines of the figurative element at issue are long and slanted almost vertically with a narrow gap between them, whereas a double tilde is formed of two horizontal lines, which are shorter, with a larger gap between them. Next, that figurative element will be interpreted in relation to the word elements and the goods covered, which refer to care in general, specifically personal care, and to professional quality. None of those elements suggest the idea of a double tilde. That argument must therefore be rejected.
36      Secondly, the applicant’s argument that that sign is unknown, does not call to mind any one clear image and leaves a lot of room for interpretation appears to contradict the idea, also maintained by the applicant, that that element is in itself capable of conveying a message that consumers will recall. Therefore, those arguments must also be rejected.
37      Thirdly, as to the reference to a ‘lasting impression’, criticised by the applicant, it was not used as an independent assessment criterion by the Board of Appeal but only for the purpose of reinforcing the idea, which was moreover correct, that that banal wavy figurative element will not divert the relevant public’s attention from the descriptive meaning of the word element of the mark applied for, within the meaning of the case-law cited in paragraph 20 above. That argument must therefore be rejected.
38      In the third place, the applicant argues that the central figurative element of the trade mark applied for creates an impression which is sufficiently far removed from that produced by the combination of the elements of the mark applied for, within the meaning of the judgment of 12 February 2004, Koninklijke KPN Nederland, (C‑363/99, EU:C:2004:86), which makes the trade mark applied for non descriptive.
39      According to the case-law cited by the applicant, as a general rule, the mere combination of elements, each of which is descriptive of characteristics of the goods or services in respect of which registration is sought, itself remains descriptive of those characteristics for the purposes of Article 7(1)(c) of Regulation 2017/1001. Merely bringing those elements together without introducing any unusual variations, in particular as to syntax or meaning, cannot result in anything other than a mark consisting exclusively of signs or indications which may serve, in trade, to designate characteristics of the goods or services concerned. However, such a combination may not be descriptive provided that it creates an impression which is sufficiently far removed from that produced by the simple combination of those elements (see by analogy, judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 99). That assumes that, because of the unusual nature of the combination in relation to the goods or services, the mark applied for creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed (judgment of 9 June 2010, Hoelzer v OHIM (SAFELOAD), T‑315/09, not published, EU:T:2010:227, paragraph 22; see also, by analogy, judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 100).
40      First, that case-law assumes that the various elements of the trade mark applied for are each descriptive of the goods covered by the trade mark applied for. However, the applicant specifically disputes the descriptiveness of the central figurative element, as found in paragraph 22 of the contested decision. Therefore, its argument is contradictory and must be rejected.
41      Secondly, in the event that it should nevertheless be understood that, by that argument, the applicant accepts the finding, made in paragraph 22 of the contested decision, that the central figurative element of the trade mark applied for evokes, in relation to the word element and the goods covered, waves of brushed hair or steam, which will reinforce the descriptive character of the trade mark applied for in respect of certain goods, it must be stated that, in the present case, the combination of figurative elements with the word element ‘profi care’ is in no way unusual in relation to the goods covered and does not create an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed.
42      Consequently the first part of the first plea in law must be rejected.
The second part of the first plea, concerning the statement of reasons and the assessment of the descriptive character of the trade mark applied for having regard to the goods covered
43      By the second part of the plea, the applicant criticises, in the first place, the overly generalised reasoning concerning the descriptiveness of the mark applied for having regard to the numerous goods covered by the application for registration and, in the second place, errors of assessment in that the mark applied for was considered to be descriptive of all the goods covered, since ‘in particular the goods in Class 11’ are not directly connected to personal care and ‘for example’, ‘food and beverage cooking, heating, cooling and treatment equipment’ in Class 11 are not directly connected to personal care, but to food.
44      EUIPO disputes the admissibility of the argument concerning the statement of reasons and all of the applicant’s arguments.
45      As regards the argument regarding the reasoning, it must be declared admissible since it is sufficiently clear from the application that what is criticised is the fact that the Board of Appeal referred to the reasoning for the goods in Class 8 in respect of those in Classes 9 and 10 and to the goods in Class 11 in respect of those in Classes 21 and 26, although the goods in each group are not homogeneous.
46      The Court will therefore examine successively, for each category of goods covered by the application for registration, the reasoning and the validity of the finding of the descriptive character of the trade mark applied for.
47      Concerning the allegedly generalised reasoning in respect of groups of products that are not homogeneous, it must be observed that, since registration of a mark is always sought for goods or services specified in the application for registration, the examination of the absolute grounds for refusal must be carried out in relation to each of the goods or services for which trade mark registration is sought and the decision by which the competent authority refuses registration of a mark must, in principle, state reasons in respect of each of those goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraphs 28 and 29 and the case-law cited).
48      However, as regards that last requirement, the Court has stated that the competent authority may use only general reasoning for all of the goods and services concerned where the same ground for refusal is given for a category or group of goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 30 and the case-law cited).
49      The Court then made clear that such a power extends only to goods and services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraphs 31 and the case-law cited).
50      In order to determine whether the goods and services covered by an application for registration of an EU mark are interlinked in a sufficiently direct and specific way and can be placed in sufficiently homogenous categories or groups, account must be taken of the fact that the objective of that exercise is to enable and facilitate the assessment in concreto of the question whether or not the mark concerned by the application for registration comes under one of the absolute grounds for refusal (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 32).
51      Accordingly, the placement of the goods and services at issue in one or more groups or categories must be carried out in particular on the basis of the characteristics which are common to them and which are relevant for the analysis of whether or not a specific absolute ground for refusal may apply to the mark applied for in respect of those goods and services. It follows that such an assessment must be carried out in concreto for the examination of each application for registration and, as the case may be, for each of the different absolute grounds for refusal which may apply (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 33).
52      According to the case-law, in order for a group of goods to be sufficiently homogenous, it is sufficient that all the goods of that group have in common a specific characteristic in the light of which the descriptive character of the mark applied for will appear to the consumer in a sufficiently direct and specific way. In those circumstances, it is immaterial that the goods of that group have, in addition to that characteristic in common, differences, even significant differences, if they are irrelevant for the assessment of the descriptive character of the mark applied for (judgment of 12 June 2019, Case T‑291/18, Biedermann Technologies v EUIPO, (Compliant Constructs), EU:T:2019:407, paragraph 61).
53      As to the alleged errors in the assessment of the descriptiveness of the mark applied for, it is in the light of the case-law referred to in paragraphs 16 to 19 above that the contested decision must be examined.
–       The statement of reasons and the merits of the assessment of the descriptive character of the trade mark applied for in relation to the various goods
54      As a preliminary point, it should be noted, in the present case, concerning the statement of reasons, that the Board of Appeal found, in paragraph 22 of the contested decision, that the sign applied for, which refers to the concept of personal care of professional quality, is descriptive in so far as all the goods referred to are directly linked to personal care, including personal hygiene, and to skin, hair and health care and hair styling. That general reasoning should be read in conjunction with the specific reasoning for the descriptive character of the mark for each category of goods, in paragraphs 23 to 30 of the contested decision.
–       The goods in Class 8
55      As regards the goods covered in Class 8, namely, ‘hand tools and implements (hand operated); razors; hygienic and beauty implements for humans and animals; hair styling appliances; body art tools; manicure and pedicure tools; hair cutting and removal implements; hair clippers, electric and non-electric; hair-removing tweezers; beard clippers; electric or non-electric fingernail polishers; pedicure sets; electric curling irons; non-electric curling irons; electric hair straighteners; parts of the aforesaid goods, included in this class’, the Board of Appeal explained, in paragraphs 23 and 24 of the contested decision, that all those goods could be used for body care and to shape a person’s physical appearance and that, consequently, the mark applied for conveyed clear and direct information about the purpose of those goods and their target group. It added that, according to settled case-law, the finding of the descriptive character of a mark applied not only to the goods for which it was directly descriptive, namely electric or non-electric fingernail polishers, but also, to the more general category to which those goods belonged, namely hand tools and implements, and so on.
56      It must be observed that that reasoning is sufficient having regard to the case-law cited in paragraphs 48 to 52 above, since the descriptive character of the mark applied for will appear to the relevant public in a sufficiently direct and specific way, in the light of the common characteristics described in paragraphs 22 to 24 of the contested decision.
57      As to the substance of the assessment of the descriptive character of the mark applied for with respect to those goods, the applicant merely alludes, indirectly, to the fact that they are not all connected to personal care. However, all the goods in Class 8 listed in paragraph 55 above must be regarded as personal care products since they are all suitable for use in care of the body and for shaping a person’s physical appearance.
–       The goods in Classes 9 and 10
58      With regard to the goods covered in Classes 9 and 10, the applicant is not correct in its view that the Board of Appeal merely referred to the reasoning concerning the goods in Class 8, because it added, in paragraph 26 of the contested decision, a more detailed statement of reasons concerning those goods. As regards the ‘weighing apparatus and instruments; measuring apparatus and instruments; thermometers, not for medical purposes; scales; scales with body mass analysers; electronic weighing scales for personal use; parts of the aforesaid goods, included in this class’ in Class 9, and ‘medical apparatus and instruments; dental apparatus and instruments; veterinary apparatus and instruments; orthopaedic articles; massage apparatus; diagnostic, testing and monitoring apparatus for medical purposes; blood pressure meters; ultrasonic cleaning instruments for medical use; ultrasonic cleaning instruments for veterinary use; ultrasonic cleaning instruments for surgical use; clinical thermometers; thermometers for medical purposes; feeding aids and pacifiers; feeding bottles; feeding bottle teats; parts of the aforesaid goods included in this class’ in Class 10, the Board of Appeal stated that they could be used in every household, that they are basic tools for personal hygiene and healthcare and that the group targeted by those goods may be both end consumers and hospitals. It considered that their purpose was to monitor health and to care for a person’s personal hygiene and appearance on a professional level.
59      It is therefore appropriate to take the view that those goods, which all relate to health or hygiene, are sufficiently homogeneous to enable the Board of Appeal to give general reasoning in support of its assessment of the descriptiveness of the trade mark applied for.
60      It should also be noted that the assessment of the descriptive character of the trade mark applied for with regard to the goods in Class 9 and 10, referred to in paragraph 58 above, is well founded in so far as the trade mark applied for will enable the relevant public immediately and without further reflection to perceive a description of one of their characteristics, namely that they are hygiene and health tools of professional quality, serving either end consumers or professionals, such as hospitals.
–       The goods in Class 11
61      As regards the goods referred to in Class 11, which are ‘food and beverage cooking, heating, cooling and treatment equipment; heating, ventilating, air conditioning and air purifying apparatus and installations; tanning apparatus [sun beds]; solaria, other than for medical purposes; tanning beds; fan heaters; radiators [heating]; blankets, electric, not for medical purposes; ventilating fans; hair dryers; hood driers; steam baths; saunas and spas; facial saunas; air purifiers; heaters, electric, for feeding bottles; sterilisation, disinfection and decontamination installations and equipment; parts of the aforesaid goods, included in this class’ the Board of Appeal held, in paragraph 28 of the contested decision, that the mark applied for will be understood as an indication that those goods operate efficiently, either to cool, to heat or to dry, in a professional manner and without damaging the object treated, in particular, food (cooking), skin (solaria) or hair (hairdryers).
62      With regard to the statement of reasons, the Court, like the Board of Appeal, finds that those goods have in common a specific characteristic in the light of which the descriptive character of the mark applied for will appear to the consumer in a sufficiently direct and specific way. They are all included in the category of personal care referred to in paragraph 22 of the contested decision and, furthermore, they all have the purpose of cooling, heating, drying, purifying or sterilising various elements related to personal care, namely food, skin, hair or even air, as is apparent from paragraph 28 of the contested decision. Therefore, in those circumstances, it is immaterial that the goods of that group have, in addition to that characteristic in common, differences, even significant differences, since they are irrelevant for the assessment of the descriptiveness of the mark applied for (see, to that effect, judgment of 12 June 2019, Compliant Constructs, T‑291/18, not published, EU:T:2019:407, paragraph 61).
63      As regards the validity of the assessment of the descriptive character of the trade mark applied for with regard to the goods in Class 11, it is necessary to reject the specific argument that not all the goods in Class 11 are directly linked to personal care, on the ground, for example, that ‘food and beverage cooking, heating, cooling and treatment equipment’ are related to food and not to personal care. Indeed, feeding someone is part of the basic care to be provided to a person. That applies in particular to ‘heaters, electric, for feeding bottles’, which concern feeding and thus care given to infants.
64      Moreover, as noted by EUIPO, it should be observed that a balanced and healthy diet is one of the elements that can help to maintain good hygiene and health. Personal hygiene and health care are part of the care of the person, as was correctly pointed out in paragraph 22 of the contested decision.
65      Concerning ‘sterilisation, disinfection and decontamination installations and equipment; parts of the aforesaid goods, included in this class’, they are directly related to hygiene as they ensure the cleanliness and absence of bacteria in various pieces of equipment, including, for example, feeding bottles. They are therefore directly linked to hygiene and health care and therefore to personal care.
66      With regard to the other goods in Class 11, the Court finds that all of those goods relate to personal care. In fact, ‘heating, ventilating, air conditioning and air purifying apparatus and installations; tanning apparatus [sun beds]; solaria, other than for medical purposes; tanning beds; fan heaters, radiators [heating]; blankets, electric, not for medical purposes; ventilating fans; hair dryers; hood driers; steam baths; saunas and spas; facial saunas; air purifiers’, warm or dry the body, in particular the skin or hair, without damaging the part of the body concerned, as the Board of Appeal noted, or purify the air, which, again, is directly related to health and hygiene care, as noted in paragraph 22 of the contested decision.
–       The goods in Classes 21 and 26
67      As regards the goods covered in Classes 21 and 26, which are ‘brushes, brooms and other cleaning instruments and cleaning articles, material for brush-making; dental cleaning articles; cosmetic and toilet utensils and bathroom articles; toothbrushes; toothbrushes, electric; heads for electric toothbrushes; water apparatus for cleaning teeth and gums; ultrasonic cleansing devices for dental prostheses [not for medical purposes]; combs; hairbrushes; electric combs; electrically heated hair brushes; heaters for feeding bottles, non-electric; feeding bottle brushes; parts of the aforesaid goods, included in this class’ and the ‘decorative articles for the hair, hair curlers, hair rollers, hair fastening articles, and false hair; electric hair rollers; electric hair curlers; curling pins; parts of the aforesaid goods, included in this class’, the applicant is wrong in claiming that the Board of Appeal merely referred to the reasoning in respect of the goods in Class 11. The Board of Appeal also held, in paragraph 29 of the contested decision, that they had a common characteristic in the light of which the descriptive character of the mark applied for appeared sufficiently direct and specific, namely that those cleaning appliances or styling tools had the same purpose of helping people to keep clean and achieving a desirable look for their skin, teeth and hair. The statement of reasons therefore appears to be sufficient, despite the differences between some of the goods covered, in accordance with the case-law cited in paragraph 52 above.
68      As to the validity of the reasoning, the Board of Appeal rightly considered that the sign applied for presented a sufficiently direct and specific relationship with those goods in Classes 21 and 26, so as to enable the relevant public immediately to perceive, without further thought, a description of one of their characteristics, namely that they are all used for cleaning and hygiene purposes or for improving physical appearance, and are therefore all personal care tools.
69      Accordingly, the second part and, therefore, the first plea in its entirety must be rejected.
The second plea, alleging inadequate reasoning and errors of assessment in the analysis made under Article 7(1)(b) of Regulation 2017/1001 and the third plea in law, alleging infringement of the first sentence of Article 94(1) of Regulation 2017/1001
70      By its second and third pleas, which must be examined together, the applicant criticises, in essence, inadequacies in the reasoning in paragraphs 44 and 45 of the contested decision. In its second plea, the applicant also submits that there are errors of assessment in the analysis made under Article 7(1)(b) of Regulation 2017/1001.
71      EUIPO disputes all those arguments.
72      Article 7(1)(b) of Regulation 2017/1001 provides that trade marks which are devoid of any distinctive character are not to be registered.
73      For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation 20017/1001, 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 those services from those of other undertakings (see judgments of 20 October 2011, Freixenet v OHIM, C‑344/10 P and C‑345/10 P, EU:C:2011:680, paragraph 42 and the case-law cited and of 10 October 2007, Bang & Olufsen v OHIM (shape of a loudspeaker), T‑460/05, EU:T:2007:304, paragraph 27 and the case-law cited).
74      In that regard, it should be noted that the signs devoid of distinctiveness referred to in Article 7(1)(b) of Regulation No 207/2009 are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the origin of the goods or services, thus enabling the consumer who acquired them to repeat the experience if it proves to be positive, or to avoid it, if it proves to be negative (judgment of 27 February 2002, REWE-Zentral v OHIM (LITE), T‑79/00, EU:T:2002:42, paragraph 26). Such is the case, inter alia, for signs which are commonly used in connection with the marketing of the goods or services concerned (judgments of 3 July 2003, Best Buy Concepts v OHIM (BEST BUY), T‑122/01, EU:T:2003:183, paragraph 20, and of 30 June 2004, Norma Lebensmittelfilialbetrieb v OHIM (Mehr für Ihr Geld), T‑281/02, EU:T:2004:198, paragraph 24).
75      The distinctive character of a mark must be assessed, first, by reference to the goods or services in respect of which registration has been sought and, secondly, by reference to the perception that the relevant public has of them (see judgments of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 34 and the case-law cited, and of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 24 and the case-law cited).
76      According to the case-law, if, when the overall impression conveyed by the trade mark applied for to the relevant public is examined, a component devoid of distinctive character constitutes the dominant element of that mark, whereas the other figurative and graphic elements which make up that mark are ancillary, not possessing any feature, in particular in terms of fancifulness or as regards the way in which they are combined, allowing that mark to fulfil its essential function in relation to the goods and services covered by the trade mark application, the whole of the trade mark applied for is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 and it must be refused registration (see, to that effect, judgment of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraphs 73 to 75). The same conclusion applies, in respect of a mark applied for the dominant element of which, in the overall impression made on the relevant public, consists of a wholly descriptive word element within the meaning of Article 7(1)(c) of Regulation 2017/1001, whilst the figurative elements that that mark contains do not have a sufficient impact on the minds of the relevant public to keep their attention, to the detriment of the descriptive word element, and bestow on the sign in question, considered in its entirety, a distinctive effect (see, to that effect, Opinion of Advocate General Léger in the case, BioID v OHIM, C‑37/03 P, EU:C:2005:338, point 75).
77      It is in the light of that case-law that the applicant’s arguments should be examined.
78      In the present case, in paragraphs 37, 38 and 41 of the contested decision, the Board of Appeal considered that, irrespective of the conclusions drawn with regard to Article 7(1)(c) of Regulation 2017/1001, the relevant public will in any event perceive the sign applied for as a conventional laudatory indication concerning the particular desirability and quality of the goods and therefore as an incitement to purchase and not as an indication of origin. It should be observed that that conclusion is not disputed by the applicant.
79      The applicant focuses its arguments on paragraphs 42 to 45 of the contested decision, by which the Board of Appeal rejected its argument that the central figurative element was dominant and rendered the trade mark applied for distinctive.
80      In paragraphs 42 to 45 of the contested decision, the Board of Appeal found, in essence, that the descriptive word element was dominant in the mark applied for and that the figurative elements were unable to confer any distinctive character on the sign. As to the central figurative element representing two wavy lines, of the same size as the word elements, the Board of Appeal classified it as banal and noted that it was not such as to render the mark applied for distinctive.
81      In the first place, the applicant disputes the reasoning for and the validity of the finding that that central figurative element is banal.
82      As regards the statement of reasons, in paragraph 44 of the contested decision, the Board of Appeal took the view that the word elements play a dominant role in the perception of a sign because the average consumer will more easily refer to the goods or services in question by quoting the trade mark name than by describing the figurative element of the mark. Next, it considered that there was no reason to assume that the banal figurative element depicting two wavy lines, positioned at the centre of the composite sign and of the same size, would render the descriptive word element distinctive.
83      It must be found that that statement of reasons is sufficient to enable the interested parties to ascertain the reasons for the measure taken so as to enable them to protect their rights and the Courts of the European Union to review the legality of the decision, in accordance with the case-law referred to in paragraph 15 above.
84      Furthermore, contrary to what is argued by the applicant, it is apparent from paragraph 34 above that the Board of Appeal had no obligation to state that the sign will be perceived as a double tilde.
85      As for the validity of the reasoning outlined in paragraph 82 above, it has to be considered that the element consisting of a slanted double wavy line is undeniably a simple shape which has no aspect which may be easily and instantly recalled by the relevant public, even if that public is relatively attentive, which would enable it to be understood immediately as an indication of the commercial origin of the goods in question. As the Board of Appeal rightly found, in paragraphs 43 and 44 of the contested decision, the relevant public will more easily refer to the goods in question by quoting the trade mark name than by describing the figurative element of that mark and, in essence, that trade mark will not individualise any of the goods at issue in relation to competing goods.
86      In the second place, the applicant considers that the Board of Appeal, in paragraphs 42 to 45 of the contested decision, applied the wrong test, namely, whether the trade mark as a whole is ‘acceptable’ and applied case-law which was not relevant in the present case.
87      Firstly, in responding to an argument of the applicant that the question was not whether the wavy figurative element was distinctive in itself but whether the mark was ‘acceptable’ taken as a whole, the Board of Appeal merely recalled the principle of assessing the overall distinctive character of a mark.
88      Secondly, it must be conceded that the judgment cited in paragraph 42 of the contested decision, namely the judgment of 27 June 2017, Flamagas v EUIPO — MatMind (CLIPPER) (T‑580/15, not published, EU:T:2017:433, paragraph 26) does not concern Article 7(1)(b) of Regulation 2017/1001. However, read in the light of the whole of that paragraph, it is clear that it supported the assertion that, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered. In any event, that inaccuracy is not such as to invalidate the reasoning of the Board of Appeal, since that reasoning also applies to an analysis carried out under Article 7(1)(b) of Regulation 2017/1001 (see, to that effect, judgment of 8 February 2011, Paroc v OHIM (INSULATE FOR LIFE), T‑157/08, EU:T:2011:33, paragraph 50).
89      In the third place, the applicant claims that the combination of the word elements and the double tilde in the centre of the mark applied for will confer distinctive character on the mark as a whole. It criticises, in that regard, the case-law referred to in paragraphs 43 and 44 of the contested decision as being irrelevant to the present case.
90      First, as regards the case-law criticised by the applicant as irrelevant in the present case because it concerns the assessment of the likelihood of confusion under Article 8(1)(b) of Regulation 2017/1001, it must be noted that that is the case-law according to which, when a trade mark is composed of word and figurative elements, the word elements are, in general, more distinctive than the figurative elements, because the average consumer will more easily refer to the goods in question by quoting their name than by describing their figurative element. The Board of Appeal thus referred, in particular, in paragraphs 43 and 44 of the contested decision, to the judgments of 18 February 2004, Koubi v OHIM — Flabesa (CONFORFLEX) (T‑10/03, EU:T:2004:46, point 45), of 5 October 2011, La Sonrisa de Carmen and Bloom Clothes v OHIM — Heldmann (BLOOMCLOTHES) (T‑118/09, not published, EU:T:2011:563, paragraph 34 and the case-law cited), of 7 May 2015, Cosmowell v OHIM — Haw Par (GELENKGOLD) (T‑599/13, EU:T:2015:262, paragraph 53), and of 1 March 2016, 1&1 Internet v OHIM — Unoe Bank (1e1) (T‑61/15, not published, EU:T:2016:115, paragraph 61).
91      However, contrary to what the applicant maintains, that case-law, concerning the way in which the relevant public will perceive a compound mark, also applies to the absolute grounds of refusal (see, concerning Article 7(1)(b) of Regulation 2017/1001, judgment of 29 November 2016, Chic Investments v EUIPO (eSMOKING WORLD), T‑617/15, not published, EU:T:2016:679, paragraph 70, and, concerning Article 7(1)(c) of Regulation 2017/1001, judgment of 9 November 2016, Smarter Travel Media v EUIPO (SMARTER TRAVEL), T‑290/15, not published, EU:T:2016:651, paragraph 36).
92      Secondly, paragraphs 43 to 44 of the contested decision, according to which, since the word element dominates the contested mark, the central figurative element will not prevent, in the present case, the direct and specific perception of the factual sense as shown by the words of the mark applied for, must be confirmed. While the existence of an additional figurative element can change the perception of the mark taken as a whole, that is not the case here and the attention of the relevant public is not diverted from the clear descriptive message conveyed by the word elements. Furthermore, its combination with the word elements and the other graphic elements does not support the compound mark, taken as a whole, being greater than the sum of its parts (see to that effect, judgment of 15 September 2005, BioID v OHIM, C‑37/03P, EU:C:2005:547, paragraph 34). Finally, it is apparent from paragraph 35 above that the interpretation of the figurative element as a double tilde must be rejected.
93      In the fourth place, with regard to the argument that the wavy central figurative element on its own is registrable, since it was the subject of several registrations as an EU trade mark, and that the Board of Appeal failed to reply to that argument, it must be recalled that, according to settled case-law, decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal are called on to take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the registrability of a sign as an EU trade mark must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of previous practice of the Boards of Appeal (see judgment of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47 and the case-law cited).
94      Furthermore, the registrations relied on by the applicant concern exclusively figurative marks which are very different to the mark applied for, which consists of a combination of word and figurative elements and in respect of which it was rightly considered that the dominant word element will be perceived either as descriptive of the goods in question or as a laudatory slogan inciting their purchase.
95      Furthermore, even assuming that the situations are identical, it must be noted that, according to settled case-law, EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not. That said, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 74 to 77, and of 13 June 2014, K-Swiss/OHIM — Künzli SwissSchuh (parallel stripes on a shoe), T‑85/13, not published, EU:T:2014:509, paragraph 46).
96      In the present case, the Board of Appeal was entitled to find, in accordance with the case-law cited in paragraphs 72 to 76 above, on the basis of a full examination and taking into account the perception of the relevant public, that the trade mark applied for, as a whole, was devoid of distinctive character in respect of the goods in question. It follows that the applicant could not reasonably rely, for the purposes of casting doubt on that conclusion, on EUIPO’s previous decisions (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 78 to 79).
97      In the fifth place, the applicant challenges, in essence, the reasoning and validity of the statement made by the Board of Appeal for the sake of completeness in paragraph 45 of the contested decision that the central figurative element strongly evokes waves of long brushed hair or of steam or heat and is often used with goods in Class 11, in particular ‘food and beverage cooking, heating’, ‘fan heaters; radiators’ or ‘steam baths’. In particular, the applicant criticises the Board of Appeal for not having provided examples proving such frequent use of that element in connection with those goods, even though that does not result from practical experience generally acquired from the marketing of general consumer goods which are likely to be known by anyone, and which are, in particular, known by the consumers of those goods, and which relieve the Board of Appeal from providing examples of such practical experience, as stated in paragraph 19 of the judgment of 15 March 2006, Develey v OHIM, (Shape of a plastic bottle), (T‑129/04, EU:T:2006:84, paragraph 19). Furthermore, it disputes the existence of such ‘frequent use’.
98      It must be held that that argument, even if it were accepted, concerns only an additional element in the contested decision and is therefore irrelevant.
99      Therefore, the second and third pleas in law must, in any event, be rejected.
The fourth plea, alleging breach of the rights of the defence and of the right to be heard
100    In the fourth plea, the applicant submits, in essence, that it was not able effectively to present its observations on three elements on which the Board of Appeal based its decision.
101    EUIPO disputes those arguments.
102    It should be recalled that it follows from the second sentence of Article 94(1) of Regulation 2017/1001 that EUIPO may base its decision only on matters of fact or of law on which the parties have been able to set out their views. That provision affirms, in EU trade mark law, the general principle of protection of the rights of the defence. In accordance with that principle, a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity to make his point of view known (see judgment of 6 September 2013, Eurocool Logistik v OHIM — Lenger (EUROCOOL), T‑599/10, not published, EU:T:2013:399, paragraph 50 and the case-law cited). The right to be heard extends to all the factual and legal material which forms the basis for the decision, but not to the final position which the authority intends to adopt (see judgment of 12 May 2009, Jurado Hermanos v OHIM, (JURADO), T‑410/07, EU:T:2009:153, paragraph 31 and the case-law cited).
103    Moreover, it follows from the case-law that the rights of the defence are infringed by reason of a procedural irregularity only in so far as the irregularity actually has an effect on the ability of the undertakings involved to defend themselves. Consequently, non-compliance with rules in force whose purpose is to protect the rights of the defence can vitiate the administrative procedure only if it is shown that the procedure could have had a different outcome if the rules had been observed (see judgment of 23 September 2009, Evets v OHIM (DANELECTRO and QWIK TUNE), T‑20/08 and T‑21/08, EU:T:2009:356, paragraph 48 and the case-law cited).
104    The applicant argues, first, that by basing its decision on the new assumption that all the goods were connected to ‘personal’ care, including those goods in Class 11, the Board of Appeal prevented it from arguing that that assumption was wrong before the adoption of the contested decision.
105    Admittedly, the examiner, in his provisional decision, had interpreted the word element ‘Profi care’ as referring to ‘professional care’ and not to ‘personal care of professional quality’. However, the clarification provided by the Board of Appeal, that the goods are ‘personal’ care products, has no impact on the assessment of the descriptive character of the mark applied for, since personal care is included in the general concept of ‘care’ and encompasses, as noted by the Board of Appeal, body, hygiene, beauty, and health care. Furthermore, it is clear from the examiner’s provisional decision and from his final decision of 8 February 2018 that the mark applied for was regarded as descriptive of all the goods, including those in Class 11. That argument must therefore be rejected.
106    Secondly, the applicant is of the opinion that the Board of Appeal, by basing its contested decision, for the first time, on the assumption that a mark containing a descriptive word element and a graphic element is distinctive only if the design leaves a ‘lasting impression’, had an effect on the applicant’s ability to defend itself.
107    However, it is apparent from paragraph 37 above that that interpretation stems from a misreading of the contested decision and that the Board of Appeal did not use the stand-alone test of ‘a lasting impression’, but rather made an interpretation in accordance with Article 7(1)(c) of Regulation 2017/1001. In any event, the final decision of the examiner of 8 February 2018 already stated that it was necessary to ascertain, where the word elements were descriptive, as in the present case, whether the figurative element was striking or surprising, unexpected or unusual, or arbitrary, and whether that figurative element was such as to create an immediate and lasting impression in the minds of the consumers by misdirecting their attention from the descriptive or non-distinctive message of the word elements. That argument must therefore be rejected.
108    Thirdly, by basing its decision, for the first time, on the assumption, set out in paragraph 45 of the contested decision, that graphics evoking waves are often used with electric hair styling products, the Board of Appeal also infringed the applicant’s rights of defence and right to be heard.
109    It follows from the foregoing that that finding made in paragraph 45 of the contested decision was made for the sake of completeness and that the contested decision is not based on that consideration. Therefore, that argument must be rejected as irrelevant.
110    Therefore, the fourth plea must be rejected and the action must be dismissed in its entirety.
Costs
111    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.
112    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 (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Clatronic International GmbH to pay the costs.
Spielmann
Csehi
Spineanu-Matei
Delivered in open court in Luxembourg on 13 May 2020.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.