JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
7 July 2021(*)
(EU trade mark – Application for EU word mark INTELLIGENCE, ACCELERATED – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EU) 2017/1001)
In Case T‑386/20,
Micron Technology, Inc., established in Boise, Idaho (United States), represented by M. Edenborough QC,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by L. Rampini and V. Ruzek, acting as Agents,
defendant,
ACTION brought against the decision of the First Board of Appeal of EUIPO of 6 April 2020 (Case R 2873/2019-1), relating to an application for registration of the word sign INTELLIGENCE, ACCELERATED as an EU trade mark,
THE GENERAL COURT (Tenth Chamber),
composed of A. Kornezov, President, E. Buttigieg and K. Kowalik-Bańczyk (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the application lodged at the Court Registry on 16 June 2020,
having regard to the response lodged at the Court Registry on 2 September 2020,
further to the hearing on 24 March 2021,
gives the following
Judgment
Background to the dispute
1        On 20 September 2018, the applicant, Micron Technology, Inc., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
2        Registration as a mark was sought for the word sign INTELLIGENCE, ACCELERATED.
3        The goods in respect of which registration was sought are in Class 9 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Semiconductor devices; semiconductors; solid state drives; computer memories; computer memory devices; computer memory modules; printed circuit boards’.
4        By decision of 5 December 2019, the examiner refused registration of the mark applied for in respect of the goods referred to in paragraph 3 above on the basis of Article 7(1)(b) and (c), read in conjunction with Article 7(2) of Regulation 2017/1001.
5        On 17 December 2019, the applicant filed a notice of appeal with EUIPO against the examiner’s decision, pursuant to Articles 66 to 71 of Regulation 2017/1001.
6        By decision of 6 April 2020 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the applicant’s appeal on the basis of Article 7(1)(b) and (c) and (2) of Regulation 2017/1001. More specifically, it concluded that the mark applied for conveyed a message as to the quality and intended purpose of the goods at issue and that the link between that mark and the goods at issue was sufficiently close for the mark applied for to be regarded as descriptive of the characteristics of the goods at issue, within the meaning of Article 7(1)(c) of Regulation 2017/1001. Accordingly, and in the absence of additional figurative or word elements capable of endowing it with distinctive character, the Board of Appeal also found that the mark applied for was devoid of any distinctive character with regard to those goods, 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;
–        in the alternative, alter the contested decision such that it declares that the registration of the mark applied for does not offend against Article 7(1)(b) or (c) of Regulation 2017/1001;
–        order EUIPO to pay the costs.
8        EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
9        In support of its action, the applicant relies, in essence, on two pleas in law, the first alleging an infringement of Article 7(1)(c) of Regulation 2017/1001 and the second alleging an infringement of Article 7(1)(b) of that regulation.
The first plea, alleging an infringement of Article 7(1)(c) of Regulation 2017/1001
10      The applicant submits that the Board of Appeal infringed Article 7(1)(c) of Regulation 2017/1001, since the mark applied for is not descriptive of the goods at issue.
11      The applicant’s line of argument under that plea is divided into two parts.
12      By the first part, the applicant alleges an error of law in that the Board of Appeal’s reasoning relating to the allegedly descriptive character of the mark applied for is inconsistent and incorrect.
13      The second part of the applicant’s line of argument concerns an error of fact in that the Board of Appeal wrongly found in the contested decision that the relevant public, when confronted with the mark applied for, would immediately perceive, without further thought, characteristics of the goods at issue within the meaning of Article 7(1)(c) of Regulation 2017/1001.
14      EUIPO disputes the applicant’s arguments.
15      Under Article 7(1)(c) of Regulation 2017/1001, trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service may not be registered. Moreover, Article 7(2) of Regulation 2017/1001 clarifies that paragraph 1 of that article is applicable even if the grounds for refusal apply in only part of the European Union.
16      According to the case-law, Article 7(1)(c) of Regulation 2017/1001 prevents the signs or indications referred to therein from being reserved to one undertaking alone because they have been registered as trade marks. That provision pursues an aim which is in the public interest, namely to ensure that descriptive signs relating to one or more characteristics of the goods or services in respect of which registration as a mark is sought may be freely used by all traders offering such goods or services (see judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 37 and the case-law cited).
17      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 services in respect of which registration is sought (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 50). Consequently, a sign can be refused registration on the basis of Article 7(1)(c) of Regulation 2017/1001 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 judgment of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 22 and the case-law cited).
18      Moreover, signs which may serve, in trade, to designate characteristics of the goods or services in respect of which registration is sought are, pursuant to Article 7(1)(c) of Regulation 2017/1001, deemed to be incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, thus enabling the consumer who acquired the goods or services designated by the mark to choose to acquire them again if it was a positive experience, or to avoid doing so, if it was negative (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 21 September 2017, InvoiceAuction B2B v EUIPO (INVOICE AUCTION), T‑789/16, not published, EU:T:2017:638, paragraph 30).
19      It follows that, for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation 2017/1001, there must be a sufficiently direct and specific relationship, between that sign and the goods or services concerned, that enables that public immediately to perceive, without further thought, a description of those goods or services or one of their characteristics (see judgment of 14 June 2017, LG Electronics v EUIPO (Second Display), T‑659/16, not published, EU:T:2017:387, paragraph 19 and the case-law cited).
20      Finally, it must be recalled that the assessment of whether a sign is descriptive can only be conducted, first, by reference to the relevant public’s perception of that sign and, second, by reference to the goods or services concerned (see judgment of 9 March 2017, Maximum Play v EUIPO (MAXPLAY), T‑400/16, not published, EU:T:2017:152, paragraph 20 and the case-law cited).
21      In the present case, as regards the relevant public, it should be noted that the applicant does not dispute the definition of the relevant public adopted by the Board of Appeal. The Board of Appeal noted, in paragraph 27 of the contested decision, that the goods at issue targeted primarily a professional public in the field of information technology, whose level of attention varied from average to high. It also found, in paragraph 29 of the contested decision, that, given that the mark applied for consisted of two word elements in English, the relevant public consisted of the English-speaking public in the European Union, namely at least that of Ireland, Malta and the United Kingdom.
22      It is in the light of those considerations that the applicant’s argumentation that the Board of Appeal infringed Article 7(1)(c) of Regulation 2017/1001 by considering that the mark applied for had a descriptive character must be examined.
The meaning of the mark applied for
23      As regards the meaning, for the relevant public, of the mark applied for, it should be borne in mind that, after providing definitions of the words ‘intelligence’ and ‘accelerated’ in paragraph 36 of the contested decision, the Board of Appeal found, in paragraph 37 of that decision, that the combination of those two words, written in upper case and separated by a comma, would be understood by the relevant public as indicating ‘the ability to think, to understand, to comprehend meaning faster, in an accelerated way by using semiconductors, computer memories, [printed] circuit boards …’.
24      That analysis of the meaning of the mark applied for must be upheld.
25      First of all, the individual meanings of the words concerned, as adopted by the Board of Appeal in paragraph 36 of the contested decision, are not disputed by the applicant. The Board of Appeal found, in the contested decision, that the word ‘intelligence’ describes the quality of being intelligent or, when applied to a computer object, the capacity to carry out some data processing and that the word ‘accelerated’ refers to a process or thing that goes faster and faster.
26      Next, it must be observed that, as the Board of Appeal found in paragraphs 37 and 38 of the contested decision, the combination of those two words, separated by a comma, evokes the capacity to do certain things faster or in an accelerated manner and that the relevant public will perceive that capacity immediately in the context of the goods at issue. Given that the goods at issue constitute hardware necessary for the operation of a computer, namely semiconductors, memory devices and printed circuit boards, the relevant public will understand, by relating the mark applied for to the goods at issue, that those goods enable devices incorporating them to achieve a faster data-processing capacity.
27      The applicant’s arguments are not capable of casting doubt on that finding.
28      In the first place, the applicant’s argument that the Board of Appeal used an incorrect meaning of the word ‘accelerated’, namely ‘faster’ rather than ‘faster and faster’, must be rejected. First, that argument lacks a basis in fact, since the meaning of the mark applied for adopted by the Board of Appeal referred to both the concept of ‘in an accelerated way’ and that of ‘faster’ (see paragraph 37 of the contested decision), with the result that it did not rule out the possibility that the word ‘accelerated’ may be understood as a synonym for ‘faster and faster’. Second, as EUIPO notes in its response, it must be observed in any event that the word ‘accelerated’ is indeed linked to the concept of speed. That follows directly from the definition given by the Collins Dictionary, referred to in paragraph 36 of the contested decision, according to which that word refers to a process or thing that gets faster and faster. As EUIPO submits in the response, the link between the word ‘accelerated’ and the idea of speed is also confirmed by the various meanings of the verb ‘accelerate’ in English as defined by the Collins Dictionary. They include ‘to go, occur, or cause to go or occur more quickly; speed up’. That finding is reinforced by the synonyms of the verb ‘accelerate’ proposed by the same dictionary, which mentions the words ‘speed up, speed, advance, quicken’. In those circumstances, the Board of Appeal was fully entitled to find that the word ‘accelerated’ was likely to encompass in the mind of the relevant public the idea of speed and the act of going or occurring ‘faster’.
29      Consequently, contrary to what the applicant claims, the meaning of the word ‘accelerated’ is not limited solely to the concept of going ‘faster and faster’, even though the latter could, according to the applicant, constitute the most precise definition of that word or the general meaning of the word. Furthermore, and in any event, it should be recalled that, according to settled case-law, a sign must be refused registration, pursuant to Article 7(1)(c) of Regulation 2017/1001, if, in at least one of its potential meanings, it designates a characteristic of the goods or services concerned (see judgment of 31 May 2016, Warimex v EUIPO (STONE), T‑454/14, not published, EU:T:2016:325, paragraph 83 and the case-law cited), as is the case here for the reasons set out in paragraphs 34 to 44 below. The Board of Appeal was therefore entitled to rely on the meaning of the word ‘accelerated’ described in paragraph 28 above.
30      In the second place, contrary to the applicant’s submissions, the unusual structure in English of the mark applied for does not impair the relevant public’s understanding of that mark.
31      First, the allegedly incorrect grammatical order of the words making up the mark applied for, with the presence of the adjective after the noun, is not likely to create any uncertainty in the mind of the relevant public as to its meaning. As stated in paragraph 43 of the contested decision, the message conveyed by the mark applied for remains clear. The relevant public will still retain that the mark applied for indicates a capacity which is fast or made faster, since its incorrect or unusual structure in English does not create an impression far removed from that meaning (see, to that effect, judgments of 6 March 2012, ThyssenKrupp Steel Europe v OHIM (Highprotect), T‑565/10, not published, EU:T:2012:107, paragraph 18, and of 17 May 2017, adp Gauselmann v EUIPO (MULTI FRUITS), T‑355/16, not published, EU:T:2017:345, paragraph 32, and the case-law cited).
32      Second, the mere presence of the comma does not give rise to any uncertainty as to the understanding of the mark applied for. Contrary to what the applicant claims, the Board of Appeal did take account of the comma in the mark applied for and found in paragraph 49 of the contested decision that the relevant public would still be able to perceive the message conveyed by that mark without difficulty. That assessment must be upheld, since the mere presence of the comma is not capable of altering the meaning of the message produced by the combination of the words ‘intelligence’ and ‘accelerated’ described in paragraph 26 above, even if its placement between those two words would be incorrect in English (see, to that effect, judgment of 6 March 2012, Highprotect, T‑565/10, not published, EU:T:2012:107, paragraph 18).
The existence of a sufficiently direct and specific relationship between the mark applied for and the goods at issue
33      As regards the relationship between the mark applied for and the goods at issue, it should be borne in mind that the Board of Appeal found that the relevant public would immediately perceive the mark applied for as indicating that the goods at issue provide ‘a higher and faster ability to think or process and understand data’ to devices consisting of the goods at issue (paragraph 38 of the contested decision). The Board of Appeal noted, in that respect, that the goods at issue are core parts of computers, since the number of operations which computers can process per second depends on the memory, the processor capacity and other elements that form the computer’s central processing unit (paragraph 39 of the contested decision). It thus found, in essence, that the goods at issue were capable of enabling computers to perform operations more quickly and to increase their efficiency (paragraph 39 of the contested decision). In that context, according to the analysis contained in the contested decision, the relevant public will perceive the mark applied for as designating characteristics of the goods at issue, namely their quality and intended purpose, despite its allegedly unusual structure.
34      In that regard, even if the goods at issue do not constitute computer programs or computers with their own data-processing capacity, as the applicant submits, it must be held that they are mainly manufactured to be used with such computer programs in computers, as components of those computers, in order to enable them to function properly. The proper functioning of computers and computer programs in the eyes of the relevant public, consisting mainly of professionals in the field of information technology, undoubtedly includes the performance of operations and the processing of data in a quick and efficient manner, as the Board of Appeal correctly pointed out, in essence, in paragraph 39 of the contested decision.
35      The meaning of the mark applied for, as defined in the contested decision and recalled in paragraphs 23 to 26 above, therefore refers to the qualities sought in computers that use computer programs. In view of the fact that the goods at issue are components which enable computers to operate quickly and efficiently and that there is therefore a close link between the goods at issue and computers, the relevant public will perceive the mark applied for, when associated with the goods at issue, as descriptive of their characteristics, such as their capability and speed. The relevant public will therefore be familiar with a description of the relevant characteristics as regards the quality and performance of the goods at issue.
36      In that regard, it is necessary to reject the applicant’s argument that the mark applied for is not descriptive of the goods at issue, since the words ‘intelligence’ and ‘accelerated’ in the mark applied for will be perceived by the relevant public as meaningless for computer hardware, such as the goods at issue, which does not have any data-processing capacity of its own and therefore cannot act intelligently or quickly, unlike computers that use software.
37      First, as mentioned in paragraph 35 above, it is not disputed that the goods at issue are manufactured mainly to ensure the operation of computer devices and that there is a close link between the efficiency of the goods at issue and that of computers and their software. Accordingly, as EUIPO points out, the concepts of capability and speed invoked by the mark applied for will easily be grasped by the relevant public as referring also to the characteristics of the goods at issue and their performance capacity within a computer.
38      Second, even if the relevant public were to understand the mark applied for as exclusively indicating desirable qualities of computers and if it were therefore directly descriptive only of the latter, as the applicant argues, the mark applied for would nevertheless still be capable of being understood by the relevant public as designating the alleged qualities of the goods at issue, since they are used as components in such machines and, generally speaking, are manufactured specifically for that purpose. It is apparent from the case-law that, in the case of apparatus or complex systems which comprise a multitude of components, a sign which is descriptive of such an apparatus or complex system may also be considered to be descriptive of the system’s components or of its accessories, some of which may, moreover, be specially designed to be integrated into such a system, since, in such a case, the sign describes the intended purpose of those components or accessories or the mode of operation of the system itself (see, to that effect, judgments of 26 November 2015, Demp v OHIM (TURBO DRILL), T‑50/14, not published, EU:T:2015:892, paragraphs 29 and 30; of 20 March 2018, Webgarden v EUIPO (Dating Bracelet), T‑272/17, not published, EU:T:2018:158, paragraphs 47 and 48; and of 4 April 2019, ABB v EUIPO (FLEXLOADER), T‑373/18, not published, EU:T:2019:219, paragraph 38). Therefore, even if the mark applied for primarily described the qualities of computers, that mark would still have a sufficiently direct and specific relationship with the goods at issue for that mark to be caught by the prohibition laid down in Article 7(1)(c) of Regulation 2017/1001.
39      Accordingly, and contrary to what is claimed by the applicant, the Board of Appeal was also fully entitled to state, in paragraph 43 of the contested decision, that the relevant public, which consists mainly of professionals in the field of information technology, would intuitively understand the descriptive meaning of the mark applied for in respect of the goods at issue. In view of the direct and specific relationship between the meaning of the mark applied for and the characteristics of the goods at issue as found above, the relevant public will understand that the mark applied for refers to the quality of the goods at issue. Thus, in the present case, neither the unusual structure of the sign nor the fact that it would be more accurate or precise to use the words ‘artificial intelligence’ rather than the single word ‘intelligence’ in the context of computer goods will affect the understanding of the relevant public in that regard.
40      Similarly, the applicant’s argument at the hearing, based on the judgment of 20 September 2001, Procter & Gamble v OHIM (C‑383/99 P, EU:C:2001:461), that the mark applied for has distinctive character because of the overall impression created by that mark and is therefore not descriptive, is unfounded. Unlike the mark at issue in the case which gave rise to that judgment, namely Baby-dry, the mark applied for does not constitute a lexical invention and the juxtaposition of the two words within it does not change the descriptive message contained in that mark, which will be easily perceived by the relevant public as designating, in everyday language, essential characteristics of the goods at issue. Thus, even if the structure of the mark applied for in the present case were to be regarded as unusual, the fact remains that the relevant public would have no difficulty in grasping the meaning of the mark as a whole, in accordance with the findings of the Court in the context of the present plea.
41      Nor can the applicant rely on the judgment of 16 September 2004, SAT.1 v OHIM (C‑329/02 P, EU:C:2004:532), which it also cited at the hearing. It should be noted in that regard that the Board of Appeal complied with the principle laid down by the Court of Justice in paragraphs 30 to 35 of that judgment, which is applicable in the context of the examination of the distinctive character of a composite mark, since the Board of Appeal did carry out, in the contested decision, an analysis of the overall impression produced by the various elements within the mark applied for, as is apparent from the summary of the contested decision set out in paragraphs 23 and 33 above.
42      Furthermore, it must be concluded that the descriptive character of the mark applied for is also not affected by the presence of a comma in that mark, contrary to what the applicant seems to assert. The comma does not influence the meaning conveyed by the mark applied for, as described in paragraph 32 above, and will have no impact on the link that the relevant public will make between that mark and the goods at issue. It follows that the applicant’s arguments that the Board of Appeal failed to take proper account of the comma are not such as to invalidate its conclusion that the mark applied for is descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001.
43      Lastly, it is also necessary to reject the applicant’s argument that the Board of Appeal erred in law in concluding, after observing that the word ‘intelligence’ could be attributed in the context at issue to a computer program carrying out data processing, that the mark applied for could be descriptive of the goods at issue. The Board of Appeal was fully entitled to conclude that the mark applied for was descriptive in respect of the goods at issue for the reasons set out in paragraphs 34 to 42 above.
44      In the light of the foregoing considerations, it must be held that the Board of Appeal rightly established that there was a sufficiently direct and specific link between the mark applied for and the goods at issue, with the result that the mark applied for was descriptive of the goods at issue within the meaning of Article 7(1)(c) of Regulation 2017/1001.
45      Consequently, the applicant’s first plea in law, alleging an infringement of Article 7(1)(c) of Regulation 2017/1001, must be rejected.
The second plea, alleging an infringement of Article 7(1)(b) of Regulation 2017/1001
46      The applicant argues that the Board of Appeal was wrong to find that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001.
47      In that regard, the applicant submits that the Board of Appeal’s reasoning regarding the lack of distinctive character of the mark applied for was based entirely on the purely descriptive character of that mark, as found by the Board of Appeal in its analysis in relation to Article 7(1)(c) of Regulation 2017/1001. According to the applicant, since the latter analysis is unfounded for the reasons submitted by the applicant in its first plea, the Board of Appeal’s objection under Article 7(1)(b) of Regulation 2017/1001 is also incorrect.
48      EUIPO disputes the applicant’s arguments.
49      It should be borne in mind that, according to settled case-law, it is sufficient that one of the absolute grounds for refusal within the meaning of Article 7(1) of Regulation 2017/1001 applies for the sign at issue not to be registrable as an EU trade mark (see judgment of 9 September 2020, Daw v EUIPO (SOS Loch- und Rissfüller), T‑626/19, not published, EU:T:2020:399, paragraph 62 and the case-law cited).
50      Consequently, since the sign at issue is descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001, as is apparent from the examination of the first plea in law, and that that in itself justifies the refusal of registration, there is no need, in the present case, to consider the merits of the plea alleging infringement of Article 7(1)(b) of that regulation (see, to that effect, judgment of 22 November 2018, Addiko Bank v EUIPO (STRAIGHTFORWARD BANKING), T‑9/18, not published, EU:T:2018:827, paragraph 38 and the case-law cited).
51      It follows from the foregoing that the action must be dismissed in its entirety.
Costs
52      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Micron Technology, Inc., to pay the costs.
Kornezov
Buttigieg
Kowalik-Bańczyk
Delivered in open court in Luxembourg on 7 July 2021.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.