62024TJ0351
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
29 October 2025 (
*1
)
(EU trade mark – Invalidity proceedings – EU word mark DEVIN – Absolute grounds for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009 – Right to be heard following an annulment judgment of the General Court – Distinctive character acquired through use – Article 7(3) and Article 52(2) of Regulation No 207/2009)
In Case T‑351/24,
Devin EAD, established in Devin (Bulgaria), represented by B. Van Asbroeck, G. de Villegas and R. Meys, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Klee, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Haskovo Chamber of Commerce and Industry, established in Haskovo (Bulgaria), represented by D. Dimitrova and I. Pakidanska, lawyers,
THE GENERAL COURT (Sixth Chamber),
composed, at the time of the deliberations, of M.J. Costeira, President, U. Öberg (Rapporteur) and P. Zilgalvis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1
By its action under Article 263 TFEU, the applicant, Devin EAD, seeks the alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 May 2024 (Case R 2535/2019-4) (‘the contested decision’).
Background to the dispute
2
On 11 July 2014, the intervener, the Haskovo Chamber of Commerce and Industry (HCCI, Bulgaria), filed an application with EUIPO for a declaration of invalidity of the EU trade mark registered on 21 January 2011, following an application filed on 29 September 2010 for the word sign DEVIN.
3
The contested mark covers goods in Class 32 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Non-alcoholic drinks; mineral water; seltzer waters; fruit-flavoured beverages; juices; syrups and other preparations for making beverages; aperitifs, non-alcoholic; spring water; flavoured water; non-alcoholic fruit extracts; non-alcoholic fruit juices beverages; table water; waters [beverages]; seltzer mineral water; vegetable juices (beverages); isotonic drinks; cocktails, non-alcoholic; fruit nectars, non-alcoholic; soda water’.
4
The grounds relied on in support of the application for a declaration of invalidity were those set out in Article 52(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), read in conjunction with Article 7(1)(c), (f) and (g) of that regulation, in that the contested mark is descriptive for the goods covered by that mark, is contrary to public policy or to accepted principles of morality and is of such a nature as to deceive the public.
5
On 29 January 2016, the Cancellation Division upheld the application for a declaration of invalidity on the basis of Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(c) of that regulation. In particular, it found that the geographical name Devin was caught by those provisions, in so far as it was understood by the general public in Bulgaria and by a part of the public in neighbouring countries as a description of the geographical origin of the goods concerned.
6
On 24 March 2016, the applicant filed a notice of appeal with EUIPO against the Cancellation Division’s decision.
7
By decision of 2 December 2016, the Second Board of Appeal of EUIPO dismissed the applicant’s appeal.
8
By application lodged at the Registry of the General Court on 22 February 2017, the applicant brought an action for annulment of the decision of the Board of Appeal of 2 December 2016, which was registered as Case T‑122/17.
9
By judgment of 25 October 2018, Devin v EUIPO – Haskovo (DEVIN) (T‑122/17, EU:T:2018:719), the Court annulled the decision of the Board of Appeal of 2 December 2016. The Court held that the Board of Appeal had made an error of assessment in finding that the contested mark was descriptive of a geographical origin with respect to the average consumer in the countries neighbouring Bulgaria, namely Greece and Romania, and in all the other Member States of the European Union, with the sole exception of Bulgaria, and had thereby infringed Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(c) of that regulation.
10
By application lodged at the Registry of the Court of Justice on 19 December 2018, the intervener brought an appeal against the judgment of 25 October 2018, DEVIN (T‑122/17, EU:T:2018:719).
11
By order of 11 July 2019, Haskovo v Devin (C‑800/18 P, not published, EU:C:2019:606), the Court of Justice dismissed the appeal.
12
On 11 November 2019, the President of the Boards of Appeal referred the case to the First Board of Appeal.
13
By decision of 28 May 2020, the Board of Appeal annulled the decision of the Cancellation Division in so far as the contested mark had been declared invalid for ‘mineral water complying with the specifications of the [protected geographical indication] Devin Natural Mineral Water’ (‘the PGI’) in Class 32. As regards the remaining goods, the Board of Appeal upheld the decision of the Cancellation Division and declared the contested mark invalid.
14
By application lodged at the Registry of the General Court on 12 August 2020, the applicant brought an action for annulment of the Board of Appeal’s decision of 28 May 2020, which was registered as Case T‑526/20.
15
By judgment of 14 December 2022, Devin v EUIPO – Haskovo Chamber of Commerce and Industry (DEVIN) (T‑526/20, not published, EU:T:2022:816), the General Court annulled the decision of the First Board of Appeal of EUIPO of 28 May 2020 in part, in so far as the Board of Appeal had concluded that the contested mark had to be declared invalid for all the goods except ‘mineral water complying with the specifications of the [PGI] Devin Natural Mineral Water’. The General Court held that the Board of Appeal had erred in law by failing to assess whether, in the eyes of the relevant public, there was a link between the geographical name Devin, constituting the contested mark, and the designated goods in Class 32 other than ‘mineral water complying with the specifications of the [PGI] Devin Natural Mineral Water’.
16
By application lodged at the Registry of the Court of Justice on 13 February 2023, the intervener brought an appeal against the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816).
17
By order of 27 June 2023, Haskovo Chamber of Commerce and Industry v EUIPO and Devin (C‑77/23 P, not published, EU:C:2023:519), the Court of Justice did not allow the appeal.
18
On 20 October 2023, the President of the Boards of Appeal referred the case to the Fourth Board of Appeal.
19
By the contested decision, the Board of Appeal confirmed the validity of the contested mark for two goods in Class 32, namely ‘mineral water [and] seltzer mineral water’, and declared that mark invalid in respect of the other goods, on the basis of Article 52(2) of Regulation No 207/2009.
20
In the first place, the Board of Appeal examined the absolute grounds for invalidity deriving from Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(f) and (g) of that regulation. In relation to those points, it endorsed the reasoning of the Cancellation Division’s decision, which found that it had not been established that the contested mark was contrary to public policy and that it could deceive the relevant public, and, consequently, rejected the application for a declaration of invalidity in so far as it was based on those grounds.
21
In the second place, the Board of Appeal examined the absolute ground for invalidity deriving from Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(c) of that regulation. In accordance with the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), it ascertained whether the relevant public perceived or was likely to perceive, in the future, the contested mark as an indication of the geographical origin of the goods covered by that mark other than ‘mineral water complying with the specifications of the [PGI] Devin Natural Mineral Water’. In that regard, it found that, at the time the contested mark was filed, the relevant public was likely to perceive that mark, in respect of all the goods it covered, as a reference to their geographical origin and, possibly, to the health benefits associated with the use of mineral and spring water from the town of Devin. Therefore, on the date the application for registration was filed, the contested mark was descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009.
22
As regards distinctive character acquired through use, the Board of Appeal found that the applicant had claimed distinctive character acquired through use in relation to ‘mineral water [and] seltzer mineral water’, without claiming acquired distinctive character in respect of the other goods covered by the contested mark. Thus, referring to the evidence on file, the Board of Appeal found that, by the date on which the contested mark was filed, and still on the date of the application for a declaration of invalidity, that mark had acquired distinctive character through use in respect of ‘mineral water [and] seltzer mineral water’ in Class 32.
Forms of order sought
23
The applicant claims that the Court should:
–
alter the contested decision in order to annul the decision of the Cancellation Division of 29 January 2016 and dismiss in its entirety (or, in the alternative, in part) the application for a declaration of invalidity of the contested mark and, accordingly, order that the registration of the contested mark be maintained for the following goods:
–
principally, all the goods covered by that mark in Class 32;
–
in the alternative, the goods ‘mineral water; seltzer waters; spring water; table water; flavoured water; fruit-flavoured beverages; waters [beverages]; seltzer waters; soda water’ covered by that mark in Class 32;
–
order EUIPO to bear its own costs and to pay those incurred by the applicant, and order the intervener to bear its own costs.
24
EUIPO contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs incurred in the event that a hearing is convened.
25
The intervener contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs it incurred.
Law
26
Given the date on which the application for registration in question was filed, namely 29 September 2010, which is decisive for the identification of the substantive law applicable for the purpose of examining an application for a declaration of invalidity, the facts of the present case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited). Consequently, as regards the substantive rules, the Court will apply the relevant substantive provisions of Regulation No 207/2009.
27
Regarding the procedural rules, in so far as, according to settled case-law, they are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions 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). Furthermore, since the appeal before the Board of Appeal was brought on 24 March 2016, the procedural provisions of Title V of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1) do not apply in the present case, with the result that it is the provisions of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), as amended by Regulation No 1041/2005 (OJ 2005 L 172, p. 4), that were applicable to the appeal proceedings before the Board of Appeal.
Admissibility of the evidence adduced for the first time before the Court
28
As a preliminary point, it is necessary to examine the admissibility of the evidence adduced by the applicant before the Court, which is disputed by EUIPO and the intervener. EUIPO and the intervener claim that the evidence in Annexes A.9.a to A.9.g to the application is inadmissible because it was adduced for the first time before the Court.
29
In that regard, the applicant claims that that additional evidence is admissible, since it seeks to challenge the Board of Appeal’s assessment that the contested mark has acquired distinctive character through use solely in respect of ‘mineral water [and] seltzer mineral water’, an assessment which was carried out of the Board’s own motion and without taking full account of its argument relating to the distinctive character acquired through use of the contested mark.
30
Annex A.9.a sets out the sales volumes of spring water and mineral water between 2011 and 2013. Annex A.9.b concerns a Market Links survey on the performance of the contested mark in Bulgaria, dated 2010. Annexes A.9.c and A.9.d, which relate to the period 2007 to 2011 and to the period 2010 to 2014 respectively, include ‘Bulgaria Soft Drinks Market Insights’ reports, prepared by Canadean. Annex A.9.e concerns a report by Nielsen Bulgaria, dated 2014, on water sales volumes. Annex A.9.f contains a letter from the Executive Director of the Bulgarian Soft Drink Association dated 1 July 2024 and Annex A.9.g contains a copy of the labels of the flavoured and soda waters covered by the contested mark.
31
It should be noted that the evidence referred to in paragraph 30 above was adduced for the first time before the Court.
32
Article 188 of the Rules of Procedure of the General Court, entitled ‘Subject matter of the proceedings before the General Court’, determines the scope of the Court’s review of the decisions adopted by EUIPO. Under that provision, ‘the pleadings lodged by the parties in proceedings before the General Court may not change the subject matter of the proceedings before the Board of Appeal.’
33
In that regard, the admissibility of the parties’ arguments and of the evidence which may properly be put before the Court depends on the subject matter of the proceedings before the Board of Appeal.
34
It is apparent from the case-law of the Court of Justice that the applicant must be in a position to criticise those findings of the Board of Appeal before the General Court, as, under Article 263 TFEU, when read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, an applicant must be able to contest before the EU Courts each and every issue of fact and law on which an EU body bases its decisions (judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 46).
35
In addition, an applicant is entitled to submit documents before the Court in order to substantiate or challenge before it the accuracy of a well-known fact (judgment of 12 December 2014, Ludwig Schokolade v OHIM – Immergut (TrinkFix), T‑105/13, not published, EU:T:2014:1070, paragraph 128).
36
Therefore, the applicability of the case-law under which an offer of evidence, which has not previously been adduced before the Board of Appeal, should be declared inadmissible, without it being necessary to assess its probative value, therefore depends on whether the fact shown by those new items of evidence forms part of the factual context of the proceedings, as defined by the parties before the Board of Appeal, or whether the parties seek, on the contrary, to contradict an assessment of fact, raised by the Board of Appeal of its own motion and appearing for the first time in the contested decision, in which case that case-law is inapplicable (see, to that effect, judgment of 26 April 2018, Convivo v EUIPO – Porcesadora Nacional de Alimentos (M'Cooky), T‑288/16, not published, EU:T:2018:231, paragraph 22 to 26 and the case-law cited).
37
In the present case, since it was for the applicant to provide, if necessary, all of the evidence in support of its claim that the contested mark had acquired distinctive character through use in respect of all the goods covered in the proceedings before EUIPO, it must be held that the facts attested by Annexes A.9.a to A.9.g to the application form part of the factual context of the proceedings before the Board of Appeal and are not intended either to contradict a factual assessment by the Board of Appeal or to substantiate or dispute the accuracy of a matter of common knowledge within the meaning of the case-law cited in paragraphs 34 and 35 above. Consequently, those annexes must be rejected as inadmissible, without it being necessary to assess their probative value.
Subject matter of the action
38
By its first head of claim, the applicant seeks the alteration of the contested decision. In that regard, under Article 72(4) of Regulation 2017/1001, ‘the action shall be open to any party to proceedings before the Board of Appeal adversely affected by its decision’.
39
By points 1 and 2 of the operative part of the contested decision, the Board of Appeal upheld the applicant’s appeal in part, annulling the Cancellation Division’s decision in so far as it declared the contested mark to be invalid in respect of ‘mineral water [and] seltzer mineral water’ in Class 32.
40
Therefore, by its action, the applicant seeks, in essence, the alteration of point 3 of the operative part of the contested decision, that is to say, in so far as the Board of Appeal dismissed the appeal against the Cancellation Division’s decision as regards the other goods covered by the contested mark (see, to that effect, judgments of 26 February 2015, 9Flats v OHIM – Tibesoca (9flats.com), T‑713/13, not published, EU:T:2015:114, paragraphs 16 to 19, and of 4 May 2018, Bernard Krone Holding v EUIPO (Mega Liner), T‑187/17, not published, EU:T:2018:254, paragraphs 15 to 18).
41
In the light of the content of the application, the head of claim seeking alteration of point 3 of the operative part of the contested decision must be interpreted as necessarily including an application for annulment of that decision in so far as it concerns that point (see, to that effect, judgment of 27 February 2014, Advance Magazine Publishers v OHIM – Nanso Group (TEEN VOGUE), T‑509/12, EU:T:2014:89, paragraphs 15 and 16 and the case-law cited).
Substance
42
In support of its application, the applicant relies on four pleas in law. The first plea alleges infringement of Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(c) of that regulation, in that the Board of Appeal erred in law by declaring of its own motion that the contested mark was descriptive in respect of ‘spring water’. The second plea alleges infringement of Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(3) of that regulation or Article 59(2) of Regulation 2017/1001, in that the Board of Appeal made an error of assessment as regards the distinctive character acquired through use of the contested mark. The third plea alleges infringement of the rights of the defence and of the principle of procedural economy, in that the Board of Appeal adopted the contested decision without inviting the parties to submit their observations. The fourth plea alleges infringement of the principles of equal treatment, legal certainty and the protection of legitimate expectations, in that the Board of Appeal assessed the same evidence differently as regards mineral water and as regards the other goods covered by the contested mark.
The first plea in law, alleging an error of law in that the Board of Appeal ruled of its own motion on the descriptive character of the contested mark in respect of ‘spring water’ in Class 32
43
By its first plea, the applicant submits that the Board of Appeal infringed Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(c) of that regulation, by examining of its own motion the descriptive character of the contested mark for ‘spring water’ in Class 32 and by deciding that that mark was descriptive in respect of that product. The applicant states that an EU trade mark enjoys a presumption of validity under Articles 59 and 62 of Regulation 2017/1001.
44
Thus, it is for the person who has filed the application for a declaration of invalidity to provide the facts, evidence and arguments which call into question the validity of the mark at issue. The intervener limited – at least implicitly – its claim that the contested mark was descriptive to goods covered by that mark other than ‘spring water’. In finding, however, that the contested mark was descriptive of that product, the Board of Appeal ruled beyond the facts, evidence and arguments relied on.
45
EUIPO and the intervener dispute the applicant’s arguments.
46
As a preliminary point, it should be noted that, although the applicant alleges infringement of Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(c) of that regulation, its arguments must be interpreted as alleging infringement of Article 95 of Regulation 2017/1001.
47
In that regard, it must be borne in mind that Article 95 of Regulation 2017/1001, entitled ‘Examination of the facts by the Office of its own motion’, provides, in paragraph 1 thereof, that, in proceedings before it EUIPO is to examine the facts of its own motion. In invalidity proceedings pursuant to Article 59 of that regulation, EUIPO is to limit its examination to the grounds and to the arguments submitted by the parties.
48
In the present case, in its application for a declaration of invalidity, the intervener claimed that ‘the disputed mark [would] be perceived by the relevant public, in relation to the goods which it designates, as being the geographical name of the town DEVIN, the name of the mineral deposit Devin and the registered [geographical indication] for Natural Mineral Water’ and that ‘it follow[ed] that from the point of view of the relevant public there [was] a sufficiently direct and specific relationship between the sign and all the goods in class 32’.
49
Thus, contrary to what the applicant asserts, the intervener, in its application for a declaration of invalidity, claimed that there was a link, in the mind of the relevant public, between the geographical name Devin and all of the goods covered by the contested mark and, consequently, relied on a ground for invalidity based on the descriptive character of that mark for all the goods which it covered, including ‘spring water’.
50
That conclusion is not called into question by the applicant’s argument that the intervener, by presenting specific facts, evidence and arguments in respect of all the goods covered by the contested mark other than ‘spring water’, limited, at least implicitly, its claim relating to the descriptive character of that mark. As EUIPO correctly submits, those specific facts, that evidence and those arguments merely added to the intervener’s arguments and evidence directed against all the goods covered by the contested mark.
51
It follows that, in examining the descriptive character of the contested mark in respect of ‘spring water’, the Board of Appeal limited its examination to the facts, evidence and arguments submitted by the parties. Therefore, the Board of Appeal did not err in law in ruling on the descriptive character of the contested mark in respect of ‘spring water’.
52
The first plea in law must therefore be rejected as unfounded.
The second plea in law, alleging an error of assessment of the facts, in that the Board of Appeal erred in finding that the applicant had claimed distinctive character acquired through use solely for ‘mineral water [and] seltzer mineral water’ in Class 32
53
By its second plea, the applicant claims that the Board of Appeal erred in finding that it had claimed distinctive character acquired through use solely for ‘mineral water [and] seltzer mineral water’ in Class 32. The applicant expressly, or at least implicitly but necessarily, claimed, before the Cancellation Division, distinctive character acquired through use of the contested mark in Bulgaria in respect of all the goods covered by that mark and submitted evidence in that regard. Furthermore, according to the applicant, given that the Board of Appeal concluded that the evidence submitted by the applicant was sufficient to conclude that distinctive character had been acquired through use for ‘mineral water [and] seltzer mineral water’, it should have drawn the same conclusion for the other goods covered by that mark.
54
EUIPO and the intervener dispute the applicant’s arguments.
55
In paragraph 80 of the contested decision, the Board of Appeal found, first, that the applicant had claimed distinctive character acquired through use in relation to ‘mineral water’ and ‘carbonated or seltzer mineral water’, but not in respect of the other goods covered by the contested mark. The Board of Appeal, second, carried out an analysis of the evidence on file and, in paragraph 88 of that decision, concluded that, by the date on which the contested mark was filed and still on the date of the application for a declaration of invalidity, that mark had acquired, in the eyes of the relevant public, distinctive character through use in respect of those goods.
56
The Court recalls that the burden of proof of distinctive character acquired through use, pursuant to Article 7(3) of Regulation No 207/2009 and Article 52(2) of that regulation, lies with the proprietor of the mark at issue (judgment of 22 March 2023, Beauty Biosciences v EUIPO – Société de Recherche Cosmétique (BIO-BEAUTÉ), T‑750/21, not published, EU:T:2023:147, paragraph 43). In particular, it has been held that, where an applicant claims that a mark has acquired distinctive character through use, it is for that applicant to provide specific and substantiated information to show that that mark has that character (judgment of 25 October 2007, Develey v OHIM, C‑238/06 P, EU:C:2007:635, paragraph 50).
57
It follows that, where a mark has been registered contrary to Article 7(1)(b), (c) or (d) of Regulation No 207/2009, registration of the contested mark may be maintained only for the goods and services for which distinctive character acquired through use of that mark has been proved.
58
Thus, it is necessary to examine whether the Board of Appeal was right to limit its analysis of the distinctive character acquired through use of the contested mark to ‘mineral water [and] seltzer mineral water’.
59
As a preliminary point, it should be noted that the intervener claims, in essence, that all of the applicant’s arguments before the Board of Appeal relating to the distinctive character acquired through use of the contested mark in respect of goods other than ‘mineral water [and] seltzer mineral water’ are inadmissible. In that regard, the intervener relies on an alleged finding of the Cancellation Division that the applicant claimed distinctive character acquired through use only for mineral water, which has the force of res judicata.
60
The principle of res judicata, according to which the definitive nature of a court decision cannot be called into question, does not apply to EUIPO decisions, which are administrative and not judicial in nature (see, to that effect, judgment of 12 February 2025, Alberts v EUIPO – Techtex (Cardboard boxes [packaging]), T‑245/24, not published, EU:T:2025:145, paragraph 30 and the case-law cited).
61
In any event, if the intervener’s argument was to be understood as meaning that the Cancellation Division found that the applicant had claimed distinctive character acquired through use solely in respect of mineral water and that, in the absence of any challenge to that finding in the applicant’s appeal before the Board of Appeal, that finding would have become final and would have acquired the force of res judicata, it must be stated that the intervener appears to refer to the summary of the applicant’s arguments made by the Cancellation Division, which was not disputed by the applicant during the proceedings before EUIPO. However, a summary of the arguments of one of the parties is not a matter of fact or law decided by the Cancellation Division and cannot, therefore, have the force of res judicata (see, to that effect and by analogy, order of 28 November 1996, Lenz v Commission, C‑277/95 P, EU:C:1996:456, paragraph 50).
62
Next, in the present case, the applicant stated on several occasions, in its observations before the Cancellation Division, that the contested mark had acquired distinctive character ‘with [regard] to goods in Class 32, namely mineral water’. The applicant reiterated that claim of distinctive character acquired through use of the contested mark, which was limited to mineral water, in its subsequent observations before the Cancellation Division.
63
In that regard, the general assertions made by the applicant in its observations before the Cancellation Division that the contested mark is a well-known mark in Bulgaria and therefore has distinctive character acquired through use, without reference to the goods covered by that mark, cannot be regarded as a claim of distinctive character acquired through use within the meaning of Article 7(3) of Regulation No 207/2009.
64
Moreover, it should be noted that the applicant’s line of argument relating to distinctive character acquired through use, during the administrative proceedings before EUIPO, and the evidence which it referred to in that regard relates almost entirely to ‘mineral water [and] seltzer mineral water’.
65
As is apparent from the case-law cited in paragraph 56 above, it is for the applicant to provide specific and substantiated information of the acquisition, by the contested mark, of distinctive character through use.
66
Thus, the applicant’s generic observations regarding the recognition of the contested mark and the fact that the evidence produced by the applicant before the Cancellation Division did not refer exclusively to ‘mineral water [or] seltzer mineral water’ did not allow the Board of Appeal to infer that the claim had to be regarded as extending to all the goods in Class 32, contrary to its explicit assertions in that regard.
67
Consequently, the applicant’s argument that it claimed distinctive character acquired through use of the contested mark in respect of all the goods covered by that mark must be rejected.
68
That conclusion is not called into question by applicant’s arguments.
69
First, as regards the applicant’s argument that the summary of its arguments in the Board of Appeal’s decision of 2 December 2016 shows that it claimed distinctive character acquired through use for all the goods covered by the contested mark, it is sufficient to note that the Board of Appeal’s decision of 2 December 2016 was retroactively eliminated from the legal system by the judgment of 25 October 2018, DEVIN (T‑122/17, EU:T:2018:719) (see, by analogy, judgment of 1 September 2021, Gruppe Nymphenburg Consult v EUIPO (Limbic® Types), T‑96/20, EU:T:2021:527, paragraph 28).
70
Second, as regards the applicant’s argument that it reiterated its claim of distinctive character acquired through use for all the goods covered by the contested mark in its application in the case which gave rise to the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), it must be borne in mind that, under Article 188 of the Rules of Procedure, the pleadings of the parties in the proceedings before the Court may not change the subject matter of the proceedings before the Board of Appeal.
71
Third, as regards the applicant’s argument that the Court, in its judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), expressly confirmed the scope of its claim concerning the distinctive character acquired through use of the contested mark, it should be stated, as observed by EUIPO, that, in that case, the Court did not rule on the scope of the claim that that mark had acquired distinctive character through use.
72
Lastly, as regards the additional evidence relied on by the applicant to show the distinctive character acquired through use of the contested mark for goods other than mineral water (Annexes A.9.a to A.9.g to the application), as was found in paragraph 37 above, that evidence is inadmissible.
73
In the light of the foregoing, the second plea in law must be rejected.
The third plea in law, alleging infringement of the rights of the defence, the right to be heard and the principle of procedural economy
74
The applicant’s third plea alleges infringement of Article 94(1) of Regulation 2017/1001, Article 70(2) of that regulation and Article 27(2) of Delegated Regulation 2018/625. That plea is divided into two parts. In the first place, the applicant submits that the Board of Appeal infringed its rights of defence by overturning the Cancellation Division’s decision without inviting the parties to submit their observations. In the second place, it submits that the Board of Appeal infringed the principle of procedural economy by adopting the contested decision of its own motion and without allowing the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816).
– The first part of the third plea in law, alleging infringement of the rights of the defence
75
The applicant claims that the Board of Appeal infringed its rights of the defence by overturning the Cancellation Division’s decision without inviting the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816). According to the applicant, the assessment made in the contested decision of the distinctive character acquired through use of the contested mark could have led to a different outcome from the one ultimately adopted if it had been in a position to submit its observations.
76
EUIPO and the intervener dispute the applicant’s arguments.
77
In accordance with the second sentence of Article 94(1) of Regulation 2017/1001, EUIPO’s decisions are to be based only on reasons on which the parties concerned have had an opportunity to present their comments. That provision constitutes a specific application of the general principle of protection of the rights of the defence, guaranteed, furthermore, by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, according to which a person whose interests are affected by a decision of a public authority must be given the opportunity effectively to make his, her or its point of view known (judgment of 13 December 2016, Guiral Broto v EUIPO – Gastro & Soul (Café del Sol), T‑548/15, not published, EU:T:2016:720, paragraph 30).
78
The right to be heard extends to all the matters of fact and of law which constitute the basis for the decision-making act, but not to the final position which the administration intends to adopt (see judgment of 3 December 2003, Audi v OHIM (TDI), T‑16/02, EU:T:2003:327, paragraph 75 and the case-law cited).
79
In that context, it follows from settled case-law that the second sentence of Article 94(1) of Regulation 2017/1001 in no way requires that, following the resumption of the proceedings before EUIPO after the annulment of the decision of the Boards of Appeal by the General Court, the applicant again be invited to submit observations on points of law and fact on which it has already had ample opportunity to express its views in the course of the written procedure previously conducted, given that the file as then constituted has been taken over by the Board of Appeal (see judgment of 25 November 2020, Group v EUIPO – Iliev (GROUP Company TOURISM & TRAVEL), T‑57/20, not published, EU:T:2020:559, paragraph 31 and the case-law cited).
80
In addition, Article 70(2) of Regulation 2017/1001 provides that, in the examination of the appeal, the Board of Appeal is to invite the parties, as often as necessary, to file observations, within a period to be fixed by the Board of Appeal, on communications from the other parties or issued by itself.
81
In the present case, it is common ground that the Board of Appeal did not invite the parties to submit additional observations on the distinctive character acquired through use of the contested mark in respect of goods other than ‘mineral water complying with the specifications of [the PGI] Devin Natural Mineral Water’, following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816).
82
However, it must be stated that, in the administrative proceedings before EUIPO, the applicant had the opportunity to submit its observations relating to aspects of the intervener’s invalidity proceedings, including the distinctive character acquired through use of the contested mark.
83
Accordingly, the Board of Appeal was not required, in the present case, to hear the applicant again regarding the distinctive character acquired through use of the contested mark and, more specifically, on the acquisition of that character for goods other than ‘mineral water complying with the specifications of [the PGI] Devin Natural Mineral Water’, before the Board of Appeal carried out its own assessment in the contested decision.
84
The first part of the third plea in law must therefore be rejected.
– The second part of the third plea in law, alleging infringement of the principle of procedural economy
85
The applicant submits that, by adopting the contested decision of its own motion and not allowing the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), the Board of Appeal infringed the principle of procedural economy. Thus, the Board of Appeal left the applicant with no choice but to bring a third action before the General Court.
86
EUIPO and the intervener dispute the applicant’s arguments.
87
At the outset, it must be stated that, as was pointed out in paragraph 83 above, in the present case, the Board of Appeal was not required to hear the applicant again regarding the distinctive character acquired through use of the contested mark before it carried out its own assessment in the contested decision.
88
Furthermore, while the case-law of the Court of Justice recognises the applicability of the principle of procedural economy during administrative proceedings before EUIPO, that case-law appears to be limited to certain situations. The Court of Justice has held, inter alia, that it would be contrary to that principle to compel the party who filed a counterclaim to initiate new proceedings with EUIPO in the event of withdrawal by the principal applicant (judgment of 13 October 2022, Gemeinde Bodman-Ludwigshafen, C‑256/21, EU:C:2022:786, paragraph 56).
89
In addition, the Court of Justice has held that it would be contrary to the principle of procedural economy to hold that a counterclaim based on a ground for invalidity referred to in Article 7(1)(a) to (m) of Regulation 2017/1001, which concerns all the goods or services covered by the registration of that mark, may lead only to a declaration of partial invalidity of the mark on which the infringement proceedings concerned are based (judgment of 8 June 2023, LM (Counterclaim for a declaration of invalidity), C‑654/21, EU:C:2023:462, paragraph 44).
90
However, in the present case, although the applicant refers to the judgment of 8 June 2023, LM (Counterclaim for a declaration of invalidity) (C‑654/21, EU:C:2023:462), it must be stated that its application is not a counterclaim within the meaning of Regulation 2017/1001, but claims that the contested mark has acquired distinctive character through use. Consequently, the case-law on which the applicant relies cannot be applied, either directly or by analogy, to the present case.
91
It follows that, in the present case, the Board of Appeal did not infringe the principle of procedural economy by adopting the contested decision without allowing the parties to submit their observations following the judgment of 14 December 2022, DEVIN (T‑526/20, not published, EU:T:2022:816), especially since nothing prevented the parties from submitting such observations on their own initiative.
92
In the light of the foregoing considerations, the second part of the third plea in law and, therefore, the third plea in law in its entirety must be rejected.
The fourth plea in law, alleging infringement of the principles of equal treatment and legal certainty
93
The applicant’s fourth plea, alleging infringement of the principles of equal treatment and legal certainty, is divided into two parts. In the first place, the applicant complains that the Board of Appeal infringed the principle of equal treatment, in that it treated comparable situations differently. In the second place, the applicant complains that the Board of Appeal infringed the principle of legal certainty and, its corollary, the principle of the protection of legitimate expectations, by finding that the evidence the applicant submitted was sufficient to establish distinctive character acquired through use of the contested mark in respect of ‘mineral water [and] seltzer mineral water’, but not as regards the other goods covered by that mark.
– The first part of the fourth plea in law, alleging infringement of the principle of equal treatment
94
The applicant invokes the principle of equal treatment, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights. In that regard, the applicant submits that it claimed distinctive character acquired through use in respect of all the goods covered by the contested mark and submitted evidence in that regard. By concluding that the contested mark has acquired distinctive character through use solely for ‘mineral water [and] seltzer mineral water’ and not for the other goods covered by the contested mark, the Board of Appeal treated comparable situations differently without any objective justification. More specifically, the Board of Appeal found that the same evidence, which contained equivalent information concerning the distinctive character acquired through use of the contested mark in Bulgaria, was sufficient to prove distinctive character for ‘mineral water [and] seltzer mineral water’, but not for the other goods covered by that mark.
95
EUIPO and the intervener dispute the applicant’s arguments.
96
The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 15 July 2021, DK v EEAS, C‑851/19 P, EU:C:2021:607, paragraph 47 and the case-law cited).
97
In the present case, the applicant submits that the Board of Appeal infringed the principle of equal treatment by finding that ‘the same evidence, which contained equivalent information on the acquired distinctiveness through use of the [contested mark] in Bulgaria for all [the] goods covered [by that mark]’ was only sufficient to prove distinctive character for ‘mineral water [and] seltzer mineral water’, and not for the other goods covered by that mark.
98
At the outset, it should be noted, as was established in paragraphs 56 to 73 above, that the applicant has not claimed, or a fortiori proved, distinctive character acquired through use of the contested mark in respect of the goods covered other than ‘mineral water [and] seltzer mineral water’.
99
In addition, and in any event, it must be stated that the applicant does not explain what evidence or information it refers to with that assertion. In that regard, the applicant refers only to paragraphs 41 to 47 of the application, in which it states that it submitted evidence of distinctive character acquired through use.
100
While it is true that the applicant referred, in paragraph 41 of the application, to certain items of evidence which it submitted with its observations before the Cancellation Division, in particular concerning spring water and bottled water, it does not, however, show that they are ‘the same evidence [containing] equivalent information’ as the evidence on the basis of which the Board of Appeal found distinctive character acquired through use for ‘mineral water [and] seltzer mineral water’.
101
Although the application sets out the applicant’s complaint, it does not include any arguments capable of substantiating that complaint. Therefore, the text of the application does not contain sufficiently precise information for the General Court to be able to exercise its power of review and for EUIPO to be able to prepare its defence.
102
It follows, first, that it is not for the Court to search within the annexes for what the applicant’s line of argument in relation to the complaint at issue might be (see judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 12 and the case-law cited) and, second, that that line of argument must be rejected as inadmissible pursuant to Article 177(1)(d) of the Rules of Procedure, in so far as it does not include the essential elements that would enable the Court to exercise its power of review and the defendant to prepare a proper defence.
103
The first part of the fourth plea must therefore be rejected.
– The second part of the fourth plea in law, alleging infringement of the principle of legal certainty and its corollary, the principle of legitimate expectations
104
The applicant submits that, in finding, in paragraph 85 of the contested decision, that the evidence which it submitted was sufficient to establish distinctive character acquired through use of the contested mark for the goods in Class 32, the Board of Appeal led it to have a legitimate expectation that that mark would be maintained not only for ‘mineral water [and] seltzer mineral water’, but also for the other goods in Class 32 covered by the contested mark. The Board of Appeal infringed that legitimate expectation in breach of the principle of legal certainty.
105
EUIPO and the intervener dispute the applicant’s arguments.
106
The principle of legal certainty – which is one of the general principles of European Union law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (judgments of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100 and of 9 October 2014, Traum, C‑492/13, EU:C:2014:2267, paragraph 28).
107
The corollary of that principle is the principle of the protection of legitimate expectations, which extends to any individual in a situation where it is clear that the EU administration has, by giving him or her precise, unconditional and concordant assurances, emanating from authorised and reliable sources, led him or her to entertain justified hopes (see, to that effect, judgment of 9 July 2008, Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 64 and the case-law cited).
108
The applicant claims, inter alia, that the Board of Appeal infringed the principles of legal certainty and the protection of legitimate expectations by finding, in paragraph 88 of the contested decision, that the contested mark had acquired distinctive character through use solely in respect of ‘mineral water [and] seltzer mineral water’, even though it had found, in paragraph 85 of the contested decision, that that mark had acquired distinctive character through use, without restricting that finding to any one of the goods covered by that mark.
109
In that regard, it is sufficient to note that paragraph 85 of the contested decision does not contain any assurance, let alone precise, unconditional and concordant assurances within the meaning of the case-law cited in paragraph 107 above, as regards the distinctive character acquired through use of the contested mark in respect of all of the goods it covers.
110
The second part of the fourth plea in law and, consequently, the fourth plea in law in its entirety, must therefore be rejected.
111
It follows from all of the foregoing that none of the pleas in law relied on by the applicant can be upheld and that the action must therefore be dismissed in its entirety.
Costs
112
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
113
Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as no hearing was organised, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Devin EAD to bear its own costs and to pay those incurred by Haskovo Chamber of Commerce and Industry;
3.
Orders EUIPO to bear its own costs.
Costeira
Öberg
Zilgalvis
Delivered in open court in Luxembourg on 29 October 2025.
V. Di Bucci
Registrar
M. van der Woude
President
(
*1
)	Language of the case: English.