JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
2 July 2025 (*)
( EU trade mark – Application for the EU word mark LUNAR OUTPOST – Absolute grounds for refusal – Descriptive character – No distinctive character – Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 )
In Case T‑513/24,
Lunar Outpost Inc., established in Wilmington, Delaware (United States), represented by P. Van Eecke, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by M. Eberl, acting as Agent,
defendant,
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, G. De Baere (Rapporteur) and D. Petrlík, 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, Lunar Outpost Inc., seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 July 2024 (Case R 2572/2023-1) (‘the contested decision’).
Background to the dispute
2        On 15 March 2023, the applicant filed with EUIPO an application for registration of an EU mark in respect of the word sign LUNAR OUTPOST.
3        The goods and services in respect of which registration was sought are in Classes 9, 12 and 39 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
–        Class 9: ‘Electronic-based instruments for measuring environmental parameters; environmental monitoring system comprised of meters and sensors; robots’;
–        Class 12: ‘Vehicles’;
–        Class 39: ‘Transportation services’.
4        By decision of 2 November 2023, the examiner rejected the application for registration of the mark LUNAR OUTPOST in respect of all the goods and services referred to in paragraph 3 above, on the basis of Article 7(1)(b) and (c) 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), read in conjunction with Article 7(2) thereof.
5        On 22 December 2023, 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. It found, first, that, for the English-speaking public, the mark applied for was descriptive of the intended purpose of the goods and services at issue for the purposes of Article 7(1)(c) of Regulation 2017/1001 and, secondly, that, for that reason, that mark was devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation.
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 application;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
Law
9        In support of its action, the applicant puts forward two pleas in law, alleging (i) infringement of Article 7(1)(c) of Regulation 2017/1001 and (ii) infringement of Article 7(1)(b) of Regulation 2017/1001.
The first plea in law, alleging infringement of Article 7(1)(c) of Regulation 2017/1001
10      The applicant maintains that the Board of Appeal incorrectly found that the mark applied for was descriptive of the goods and services at issue for the purposes of Article 7(1)(c) of Regulation 2017/1001.
11      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. Under Article 7(2) thereof, Article 7(1)(c) is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.
12      For a sign to fall within the scope of the prohibition set out in Article 7(1)(c) of Regulation 2017/1001, it must suggest a sufficiently direct and concrete link to the goods or services in question to enable the public concerned immediately, and without further thought, to perceive a description of the category of goods and services in question or one of their characteristics (see judgments of 10 September 2015, Volkswagen v OHIM (STREET), T‑321/14, not published, EU:T:2015:619, paragraph 12 and the case-law cited, and of 24 May 2023, Emmentaler Switzerland v EUIPO (EMMENTALER), T‑2/21, EU:T:2023:278, paragraph 24 and the case-law cited).
13      Furthermore, in order for EUIPO to refuse to register a mark under Article 7(1)(c) of Regulation 2017/1001, it is not necessary that the signs and indications composing the mark actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32; see judgment of 26 June 2019, Agencja Wydawnicza Technopol v EUIPO (200 PANORAMICZNYCH and Others), T‑117/18 to T‑121/18, EU:T:2019:447, paragraph 35 and the case-law cited).
14      The descriptive character of a sign can be assessed only by reference to the goods or services concerned and to the way in which it is understood by the relevant public (see judgments of 25 October 2005, Peek & Cloppenburg v OHIM (Cloppenburg), T‑379/03, EU:T:2005:373, paragraph 37 and the case-law cited, and of 25 October 2018, Devin v EUIPO – Haskovo (DEVIN), T‑122/17, EU:T:2018:719, paragraph 23 and the case-law cited).
15      In the first place, in the contested decision, the Board of Appeal noted that, since the sign applied for was composed of two English words, it was appropriate to take into consideration the English-speaking part of the public in the European Union. It found that the relevant public consisted of or included professionals, since the goods and services at issue included specialist equipment and services targeting professionals and not only the public at large.
16      The Board of Appeal agreed with the examiner’s assessment that, since the English word ‘outpost’ means ‘an outlying settlement or position’ and the English word ‘lunar’ means ‘of or relating to the moon’, the overall meaning of the sign applied for was ‘a settlement on the moon’.
17      The applicant does not dispute the definition of the relevant public or the meaning of the sign applied for given by the Board of Appeal.
18      In the second place, in the contested decision, the Board of Appeal found that the goods in Class 9 consisted of or included specialist scientific equipment targeting professionals and that the goods in Class 12 covered specialist vehicles, for example, moon rovers and the like, targeting professionals, and not only vehicles such as cars targeting the public at large. It noted that the transportation services in Class 39 comprised transportation for professional specialists, including, for example, transport in space to the moon, and were by no means limited to transportation services for the public at large or solely for ‘civilians’.
19      It should be noted that the applicant does not dispute the Board of Appeal’s assessment that each of the goods and services at issue could be used in a settlement on the moon.
20      In the third place, the Board of Appeal found that, as a result of the clear meaning of the sign applied for, and by reference to the goods and services at issue, which included specialist goods in Classes 9 and 12 for use during lunar expeditions and specialist services in Class 39 for transportation to or on the moon, the relevant public would instantly understand the sign applied for as merely conveying the purely descriptive information that (i) the instruments, monitoring systems and robots in Class 9 were intended to be used in a settlement on the moon or were developed to withstand such use; (ii) the vehicles in Class 12 were intended to be used to transport people and goods to, from or within a settlement on the moon; and (iii) the transportation services in Class 39 were intended for transporting people and goods to, from or within a settlement on the moon.
21      The Board of Appeal noted that there were pioneering companies whose aim was to develop and sell innovative products and services precisely for the purpose of lunar exploration and space travel, which was likely to be well known at least to the specialist professional public. It found that, since the goods and services at issue included those specialised in lunar exploration, the relevant specialist public, for example national and international space agencies, would instantly understand the sign applied for as being descriptive.
22      The Board of Appeal stated that the question of whether or not settlements currently existed on the moon was irrelevant, since specialists in the field of moon exploration required the goods at issue, intended to be used in a settlement on the moon, and the services at issue, intended to be used for transportation to or within a settlement on the moon, as described in paragraph 20 above. It found that the use of the sign applied for, in conjunction with the goods and services at issue, would be instantly understood as consisting of goods or services appropriate for that specific use.
23      The Board of Appeal stated that, even for the testing phase of equipment, vehicles and transportation services in particularly harsh environments on earth or in space, before the actual establishment of settlements on the moon, the specialist goods and services required for that challenge had to be fit for purpose and tested as capable of withstanding possible use in space and on the moon. It noted that it was a well-known fact that at least the professional public was aware that such future technological developments formed part of the concrete aspirations of space agencies. It found that the concept of ‘settlement on the moon’ was certainly so tangible for the relevant public that it would deduce, without any cognitive or imaginative leap, that all the goods and services at issue were related to a lunar settlement.
24      The Board of Appeal found that, since the goods and services at issue consisted of or included highly specialised products and services required precisely by professionals in the field of lunar exploration, there was no doubt whatsoever that the sign applied for had a direct and specific relationship with such common terms as ‘vehicles’ and ‘transportation services’, and the more specific ‘electronic-based instruments for measuring environmental parameters’, and that that sign would simply be seen as immediately descriptive.
25      The applicant maintains that the mark applied for is descriptive of a settlement on the moon, but that it is not seeking to register the application for temporary accommodation services in Class 43 on the moon or elsewhere. The average consumer, whether professional or not, confronted with the mark applied for, would immediately perceive it as describing a settlement on the moon. By contrast, the average consumer would not perceive it, without further thought, as describing the intended purpose of the goods and services at issue, meaning that he or she would not think that vehicles or transportation services, instruments or robots ‘are’ a settlement on the moon. The applicant admits that each of the goods and services at issue could be used in a settlement on the moon, but that that does not mean that their intended purpose is to ‘be’ a settlement on the moon.
26      In that regard, it should be borne in mind that, by using, in Article 7(1)(c) of Regulation 2017/1001, the terms ‘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’, the EU legislature made it clear, first, that those terms must all be regarded as characteristics of goods or services and, secondly, that that list is not exhaustive, since any other characteristics of goods or services may also be taken into account (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 49; see judgment of 10 September 2015, STREET, T‑321/14, not published, EU:T:2015:619, paragraph 22 and the case-law cited).
27      The fact that the EU legislature chose to use the word ‘characteristic’ highlights the fact that the signs referred to in Article 7(1)(c) of Regulation 2017/1001 are merely those which serve to designate a property, easily recognisable by the relevant class of persons, of the goods or the services in respect of which registration is sought. Thus, a sign can be refused registration on the basis of that provision only if it is reasonable to believe that it will actually be recognised by the relevant class of persons as a description of one of those characteristics (see judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 50 and the case-law cited, and of 10 September 2015, STREET, T‑321/14, not published, EU:T:2015:619, paragraphs 23 and 24 and the case-law cited).
28      The Court finds that the applicant’s argument is based on a flawed understanding of Article 7(1)(c) of Regulation 2017/1001.
29      It is apparent, in essence, from the applicant’s argument that it is claiming that the mark applied for can only be regarded as descriptive of a ‘settlement on the moon’, excluding any other product or service. However, it should be borne in mind that, for the purposes of Article 7(1)(c) of Regulation 2017/1001, registration of a trade mark is to be refused where the mark is descriptive not only of the kind of goods or services covered by the application for registration, but also of one of their characteristics.
30      The applicant also argues that the Board of Appeal failed to differentiate between a possible place of use and the purpose of use of the goods and services at issue. That argument cannot prevail.
31      It should be recalled that the general interest underlying Article 7(1)(c) of Regulation 2017/1001 consists in ensuring that descriptive signs relating to one or more of the characteristics of goods or services in respect of which registration as a trade mark is sought may be freely used by all economic operators offering such goods or services (see judgment of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 19 and the case-law cited; judgment of 14 July 2021, Aldi v EUIPO (CUCINA), T‑527/20, not published, EU:T:2021:433, paragraph 18). Moreover, whether the number of competitors who may have an interest in using the signs or indications of which the mark consists is large or small is not decisive. Any operator at present offering, as well as any operator who might in the future offer, goods or services which compete with those in respect of which registration is sought must be able freely to use the signs or indications which may serve to describe characteristics of its goods or services (judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 58).
32      According to the case-law, although it is irrelevant whether a ‘characteristic’ is commercially essential or ancillary, a characteristic, within the meaning of Article 7(1)(c) of Regulation 2017/1001, must nevertheless be objective and inherent to the nature of that product or service and intrinsic and permanent with regard to that product or service (see judgment of 22 March 2023, Casa International v EUIPO – Interstyle (casa), T‑650/21, not published, EU:T:2023:155, paragraph 44 and the case-law cited).
33      Furthermore, it should be recalled that, according to the case-law, the finding that a mark has descriptive character applies not only to goods for which it is directly descriptive, but also to the more general category to which those goods belong in the absence of a suitable restriction of the trade mark by the applicant (see judgment of 21 November 2018, PepsiCo v EUIPO – Intersnack Group (Exxtra Deep), T‑82/17, EU:T:2018:814, paragraph 43 and the case-law cited). Furthermore, the fact that a sign is descriptive for only some of the goods and services within a category listed as such in the application for registration does not preclude that sign being refused registration. If, in such a case, the sign at issue is registered as an EU trade mark for the category covered, nothing would prevent the proprietor from using the mark also for goods and services in that category for which it is descriptive (see judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl), T‑236/16, EU:T:2017:416, paragraph 58 and the case-law cited).
34      It is also clear from the case-law that the fact that the mark applied for describes a characteristic which does not, at the current stage of the technology, exist does not preclude it being perceived as descriptive by the relevant public (see judgment of 16 October 2014, Larrañaga Otaño v OHIM (GRAPHENE), T‑458/13, EU:T:2014:891, paragraph 21 and the case-law cited).
35      In that regard, it should be noted that, in the contested decision, the Board of Appeal stated that, due to their experience and expertise, professionals were more likely to know the achievements and ongoing developments regarding lunar exploration and space travel and that they were thus more likely to understand the descriptive meaning of the sign applied for.
36      For that public, the LUNAR OUTPOST mark, affixed to ‘electronic-based instruments for measuring environmental parameters’ or to ‘environmental monitoring system[s] comprised of meters and sensors’ in Class 9, will be understood as indicating that those goods are intended for use in a specific environment, namely that of a settlement on the moon. That mark, affixed to the ‘robots’ in Class 9, will be understood by that public as indicating that they are developed for use during lunar expeditions or to withstand such use and that they are intended for use in a settlement on the moon.
37      As regards the ‘vehicles’ in Class 12, it is not disputed that that category includes specialist vehicles, such as moon rovers and vehicles intended for the transportation of goods or people to or on the moon. Thus, the mark LUNAR OUTPOST, affixed to those vehicles, will be understood by the relevant public as an indication that they are intended to be used during lunar expeditions for travel to, from or within a settlement on the moon. Likewise, in connection with the ‘transportation services’ in Class 39, the mark applied for will be understood as informing that public that they are intended to ensure the transport of goods or people to, from or within a settlement on the moon.
38      It follows that the relevant public, consisting of or including professionals, will recognise easily and without further thought that the sign applied for gives a clear indication of the intended purpose of the goods and services at issue, which consist of or include specialist goods or services, namely that they are intended for use in a particular environment and location, in the present case, a settlement on the moon. The relevant public will perceive the sign applied for as designating an intrinsic property of those goods and services, meaning that their specific function lies in the fact that they must be suitable for use in a specific environment, namely in space and on the moon.
39      Accordingly, the mark applied for will immediately be perceived by the relevant public as being descriptive of a characteristic of the goods and services at issue, namely that they are specifically intended to be used in a particular place, a ‘settlement on the moon’, or that they have been specially developed for use in such a place or for transporting them there.
40      The Board of Appeal therefore correctly found that the sign applied for was descriptive of a characteristic of the goods and services at issue for the purposes of Article 7(1)(c) of Regulation 2017/1001.
41      Accordingly, the first plea in law must be rejected.
The second plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
42      The applicant claims that, since the mark applied for was not descriptive of the goods and services at issue, the Board of Appeal could not validly infer that the mark was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001.
43      It is sufficient to recall that, according to the case-law, a word mark which is descriptive of characteristics of goods or services for the purposes of Article 7(1)(c) of Regulation 2017/1001 is, on that account, necessarily devoid of any distinctive character in relation to those goods or services within the meaning of Article 7(1)(b) of that regulation (judgment of 12 February 2004, Campina Melkunie, C‑265/00, EU:C:2004:87, paragraph 19).
44      Since it follows from the analysis of the first plea in law that the Board of Appeal did not make an error of assessment in finding that the mark applied for was descriptive of a characteristic of the goods and services at issue, it correctly inferred that that mark was also devoid of any distinctive character in respect of those same goods and services, within the meaning of Article 7(1)(b) of Regulation 2017/1001.
45      It follows that the second plea in law must be rejected and, therefore, that the action must be dismissed in its entirety.
Costs
46      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.
47      Even though the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered pay the costs only in the event that a hearing is convened. As no hearing was held, it is appropriate to order each party to bear their own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear their own costs.
Kornezov
De Baere
Petrlík
Delivered in open court in Luxembourg on 2 July 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.