JUDGMENT OF THE GENERAL COURT (First Chamber)
23 July 2025 (*)
( EU trade mark – International registration designating the European Union – Word mark JET LAG – Absolute ground for refusal – Descriptiveness – Article 7(1)(c) of Regulation (EU) 2017/1001 )
In Case T‑472/24,
Summer Fridays LLC, established in Los Angeles, California (United States), represented by M. Maier, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO),
represented by T. Frydendahl, acting as Agent,
defendant,
THE GENERAL COURT (First Chamber),
composed of R. Mastroianni, President, M. Brkan and S.L. Kalėda (Rapporteur), Judges,
Registrar: J. Čuboň, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 April 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Summer Fridays LLC, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 July 2024 (Case R 1033/2024-5) (‘the contested decision’).
Background to the dispute
2        On 3 October 2023, the applicant obtained from the International Bureau of the World Intellectual Property Organization (WIPO) international registration No 1760112 designating the European Union in respect of the word sign JET LAG. On 9 November 2023, EUIPO received notification of the international registration at issue, pursuant to the fourth sentence of Article 3(4) of the Protocol relating to the Madrid Agreement concerning the international registration of marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22), as amended on 12 November 2007.
3        The mark applied for covered goods in Class 3 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, inter alia, to the following description: ‘Cosmetics; skin care products, namely, face creams, face gels for cosmetic purposes, face and body scrubs, face and body cleansers, facial moisturizers; lotions for face and body care; non-medicated skin care products, namely, creams, lotions, serums, gels, toners, cleaners, peels, face and body mists, oils, patches containing non-medicated skin care preparations; bath bombs; facial and body moisturizers with SPF; SPF sun block sprays; sunscreen preparations; beauty masks; non-medicated body care products, namely, oils and balms for the face and body’.
4        By decision of 16 April 2024, the examiner rejected the application for registration of that mark, in so far as it covered the goods referred to in paragraph 3 above, on the basis of Article 7(1)(c), read in conjunction with Article 7(2), of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
5        On 16 May 2024, the applicant filed a notice of appeal with EUIPO against the examiner’s decision.
6        By the contested decision, the Board of Appeal dismissed the appeal on the ground that the expression ‘jet lag’ was descriptive of one of the characteristics of the goods at issue because it would be perceived by a non-negligible part of the relevant public as indicating that those products were designed to refresh, rejuvenate and restore the skin, mitigating the visible physical effects of jet lag, which are fatigue, dehydration and a dull complexion.
Forms of order sought
7        The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
8        EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
Law
9        The applicant relies on a single plea in law, alleging infringement of Article 7(1)(c) of Regulation 2017/1001, read in conjunction with Article 7(2) of that regulation.
10      According to the applicant, first of all, the Board of Appeal did not take sufficient account of the fundamental differences between the goods at issue as regards their intended purpose and method of use and the needs and preferences of consumers, which led it to conclude wrongly that all the goods at issue were intended to address the symptoms of jet lag.
11      Next, the applicant criticises the Board of Appeal for having found that the relevant public would identify a sufficiently direct and concrete link between the mark applied for and the goods at issue. In that regard, first, it submits that the goods at issue, which are essentially cosmetic products, cannot address the causes of jet lag, namely, in particular, the disruption of the circadian rhythm, or the resulting physical and cognitive symptoms. Second, the applicant submits that skin dehydration during air travel results more from the dry air conditions and low cabin pressure than from the disruption of the circadian rhythm due to crossing multiple time zones. It infers from this that jet lag and skin dehydration may occur simultaneously on flights, but that their causes are distinct and that the means of addressing them are different. Third, the applicant criticises the Board of Appeal for having concluded that there was a link between the mark applied for and the goods at issue only after it had constructed a chain of assumptions that overextends the requirements of Article 7(1)(c) of Regulation 2017/1001. Therefore, it is contrary to that provision that the Board of Appeal concluded that the relevant public would immediately and without further thought perceive the mark applied for as descriptive of the goods at issue or of one of their characteristics.
12      Lastly, the applicant submits, on the one hand, that EUIPO had accepted registration of the word mark JET LAG MASK covering, inter alia, certain goods in Class 3, namely cosmetic preparations, facial masks and facial moisturisers, which establishes the distinctive character of the expression ‘jet lag’, and, on the other hand, that the mark applied for has distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001.
13      EUIPO disputes the applicant’s arguments.
14      Article 7(1)(c) of Regulation 2017/1001 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 are not to be registered. Article 7(2) of that regulation states that Article 7(1) is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.
15      By prohibiting the registration as trade marks of such signs and indications, Article 7(1)(c) of Regulation 2017/1001 pursues an aim which is in the public interest, namely that signs or indications that are descriptive of the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs or indications from being reserved to one undertaking alone because they have been registered as trade marks (see judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31 and the case-law cited).
16      Those signs or indications are deemed incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 37).
17      For a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation 2017/1001, there must be a relationship between the goods or services in question that is sufficiently direct and specific to enable the relevant public immediately to perceive, without further thought, a description of the goods and services in question or of one of their characteristics (see judgments of 12 January 2005, Deutsche Post EURO EXPRESS v OHIM (EUROPREMIUM), T‑334/03, EU:T:2005:4, paragraph 25 and the case-law cited, and of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 25 and the case-law cited).
18      Whether a sign is descriptive can be assessed only, first, by reference to the goods or services concerned and, second, by reference to the understanding which the relevant public has of the sign (see judgment of 25 October 2005, Peek & Cloppenburg v OHIM (Cloppenburg), T‑379/03, EU:T:2005:373, paragraph 37 and the case-law cited).
19      It is in the light of those considerations that the Court must examine whether the Board of Appeal was right in finding that the mark applied for was descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001.
20      As regards the relevant public, the Board of Appeal noted that the goods at issue targeted the general public and professionals in the sector concerned. It also decided to take into consideration the perception of the English-speaking public in the European Union, for whom the mark applied for is meaningful, in particular that of Ireland and Malta. The applicant does not dispute those findings.
21      As regards, first of all, the applicant’s arguments relating to the alleged fundamental differences between the goods at issue, it should be noted that the applicant distinguishes, within those goods, four categories of goods with different purposes, namely suncare products, bath and body products, skincare products and cosmetics.
22      In that regard, it is apparent from the case-law that, where registration of a mark is sought in respect of various goods or services, the Board of Appeal must, in principle, determine specifically, in relation to each of those goods or services, that none of the grounds for refusal of registration listed in Article 7(1) of Regulation 2017/1001 applies to the mark in question and may reach conclusions which differ depending upon the goods or services in question (judgment of 2 April 2009, Zuffa v OHIM (ULTIMATE FIGHTING CHAMPIONSHIP), T‑118/06, EU:T:2009:100, paragraph 27). Nevertheless, the competent authority may use only general reasoning for all of the goods and services concerned where the same ground of 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). However, 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, paragraph 31 and the case-law cited).
23      In the present case, it must be held, as the Board of Appeal found, that all the goods at issue are intended, in particular, to improve the appearance and health of the skin. That also applies to facial and body moisturising products containing sun protection factor, which the Board of Appeal correctly classified as multifunctional products that, on the one hand, protect the consumer from ultraviolet radiation and, on the other hand, address the hydration and revitalisation needs of the skin. Consequently, the goods at issue form a sufficiently homogeneous group of goods for the Board of Appeal to have been fully entitled to adopt general reasoning for all of those goods.
24      Next, as regards the question whether, in accordance with the case-law cited in paragraphs 17 and 18 above, there is, from the point of view of the relevant public, a sufficiently direct and specific link between the mark applied for and the goods at issue, the following should be noted.
25      First, as the Board of Appeal correctly found, the expression ‘jet lag’ follows the rules of syntax and grammar of English and has a meaning in that language, with the result that no effort will be required for the relevant public directly and immediately to discern its meaning. In that regard, the Board of Appeal defined that expression, in accordance with the online version of the Collins English Dictionary, as referring to ‘a general feeling of fatigue and disorientation often experienced by travellers by jet aircraft who cross several time zones in relatively few hours’.
26      Second, it is true, as the applicant submits, that the goods at issue cannot address either the causes of jet lag, namely, in particular, the disruption of the circadian rhythm, or the resulting cognitive symptoms. However, the fact remains that, as the Board of Appeal correctly pointed out, on the one hand, jet lag is also likely to manifest itself in physical symptoms such as, inter alia, dullness, more pronounced fine lines, sensitive skin, and even acne, and, on the other hand, the goods at issue are intended to improve the appearance and health of the skin. Accordingly, it is possible for those goods to address those physical symptoms.
27      That conclusion is not called into question by the applicant’s argument that it is the low degree of humidity, air conditioning and low cabin air pressure, rather than the jet lag in itself, which cause skin dehydration.
28      It should be borne in mind that skin dehydration is not the only physical symptom of jet lag noted by the Board of Appeal that the goods at issue are likely to address. In addition, as the applicant rightly points out, jet lag and dehydration may occur simultaneously during air travel.
29      Even if it were established that the factors relied on by the applicant, referred to in paragraph 27 above, could cause skin dehydration to a greater extent than the jet lag itself, the simultaneity of the jet lag and the skin dehydration is likely to lead consumers to attribute their skin dehydration to the jet lag which they suffer.
30      The applicant’s argument must therefore be rejected.
31      Third, as regards the applicant’s argument that the Board of Appeal found that the mark applied for was descriptive following a chain of assumptions which therefore did not establish a sufficiently direct and specific relationship between that mark and the goods at issue, it should be borne in mind that the expression ‘jet lag’ will be directly and immediately understood by the relevant public as designating the condition known as jet lag. In that regard, as the Board of Appeal rightly noted in paragraphs 38 and 39 of the contested decision, when faced with the contested mark, with regard to the goods at issue, the relevant public will immediately understand, without further thought, that those goods, which are intended to improve the appearance and health of the skin, have the characteristic of combating the effects of jet lag on the skin. It follows that, as regards such goods, the mark applied for will be perceived by the relevant public as a description of a characteristic of those goods, namely their intended purpose.
32      Therefore, the Board of Appeal rightly found that the mark applied for was descriptive for the purposes of Article 7(1)(c) of Regulation 2017/1001.
33      Finally, on the one hand, as regards the mark JET LAG MASK on which the applicant relies, it must be borne in mind that, in its review of legality, the Court is not bound by EUIPO’s decision-making practice (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65, and of 22 April 2008, Casa Editorial el Tiempo v OHIM – Instituto Nacional de Meteorología (EL TIEMPO), T‑233/06, not published, EU:T:2008:121, paragraph 48). Decisions concerning the registration of a sign as an EU trade mark which EUIPO takes under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of a previous administrative practice (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
34      Although, in the light of the principles of equal treatment and sound administration, EUIPO must 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, those principles must be applied in a way that is consistent with respect for the principle of legality. Consequently, a person who files an application for registration of a sign as an EU trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act committed for the benefit of someone else (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 76).
35      Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77).
36      In the present case, as is apparent from paragraphs 19 to 32 above, the Board of Appeal was right in finding that the mark applied for was caught by the ground for refusal of registration laid down in Article 7(1)(c) of Regulation 2017/1001, with the result that the applicant cannot successfully rely on an earlier decision of EUIPO in order to invalidate that finding, even if that earlier decision concerns another mark filed by the applicant.
37      On the other hand, since it is clear from Article 7(1) of Regulation 2017/1001 that, for a sign not to be registrable as an EU trade mark, it is sufficient that one of the absolute grounds for refusal listed in that provision applies, the applicant’s argument that the mark applied for has distinctive character, within the meaning of Article 7(1)(b) of that regulation, even assuming it is admissible, must be rejected as ineffective.
38      It follows from the foregoing that the single plea in law must be rejected and, consequently, the action must be dismissed.
Costs
39      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.
40      Since a hearing has taken place and 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 (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Summer Fridays LLC to pay the costs.
Mastroianni
Brkan
Kalėda
Delivered in open court in Luxembourg on 23 July 2025.
V. Di Bucci
L. Truchot
Registrar
President
*      Language of the case: English.