JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
7 February 2024 (*)
(EU trade mark – Invalidity proceedings – EU figurative mark representing a square placed inside a rectangle – Absolute ground for invalidity – No distinctive character – Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))
In Case T‑591/22,
Polaroid IP BV, established in Amsterdam (Netherlands), represented by G. Vos, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Thomas Klimeck, residing in Kevelaer (Germany), represented by C. Tenkhoff and T. Herzog, lawyers,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse and I. Dimitrakopoulos (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 27 September 2023,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Polaroid IP BV, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 June 2022 (Case R 1646/2021-4) (‘the contested decision’).
Background to the dispute
2        On 3 January 2017, the applicant filed an application for registration of an EU trade mark with EUIPO pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
3        Registration as a mark was sought for the following figurative sign:
4        Registration was sought in respect of goods and services in Classes 9, 11, 25 and 40 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, for each of those classes, to, inter alia, the following description:
–        Class 9: ‘Electric cables and wires; USB (universal serial bus) operating software; USB flash drives; blank USB cards; blank Universal Serial Bus (USB) flash memory drives; television standards converters; modulators; loudspeakers; alarms; microphones; hard discs; data storage media; memory cards; batteries; lighting ballasts; light-conducting filaments; light diodes; light-emitting electronic pointers; safety signals (luminous); flashing safety lights; fuses; junction boxes (electricity); junctions (electrical); junction sleeves for electric cables; video game cartridges; camera lenses; computer software for organizing and viewing digital images and photographs; computer software applications, downloadable; magnifying lenses (optics); magnifying glasses; photographic lenses; monoculars; binoculars; telescopes; microscopes; periscopes; power connectors; electrical adapters; software drivers; camera tripods; pouches for photographic apparatus; cases for photographic lenses; flashlamps for cameras; lenses (optical-); close-up lenses; camera filters; optical filters; camera filters; plug adaptors; lens hoods for photographic lenses; headphones; loudspeakers; mouse mats; electronic publications, downloadable; connection cables; cases adapted for mobile phones; cases for cameras (photography); covers (shaped -) for computers; cameras (bags adapted or shaped to contain -); cases adapted for photographic equipment; optical condensers; optical data carriers; optical discs; optical fibers; optical glass; optical lanterns; optical lanterns; directional compasses; mirrors (optics); lenses for astrophotography; magnetic tape drives; magnetic disk drives; optical data storage drives; floppy disk drives; optical disk drives; night vision goggles; divers’ masks; welding masks; eye protection; spectacles (optics); 3D spectacles; three dimensional viewers; stereoscopic apparatus; downloadable computer software for modifying the appearance and enabling the transmission of photographs’;
–        Class 11: ‘Lamps; lamp casings; LED lighting fixtures; light bulbs; lighting apparatus for vehicles; lighting fixtures; lighting tracks; lighting tubes; rope lights; lights for vehicles; under cabinet lights; luminaries; outdoor lighted ornaments; outdoor lighting, namely, paver lights; reading lights; road lights; solar collectors; solar energy based cooling apparatus; solar powered lamps; solar light fixtures, namely indoor and outdoor solar powered lighting units and fixtures; flashlights’;
–        Class 25: ‘Clothing; headgear; tops (clothing); neckties; footwear; socks; trousers; jackets (clothing); shirts; t-shirts; coats’;
–        Class 40: ‘Printing; digital on-demand printing services of books and other documents’.
5        The contested sign was registered by EUIPO on 5 April 2018 under the number 16217267.
6        On 9 April 2018, the intervener, Thomas Klimeck, filed an application for a declaration that the contested sign was invalid in respect of all the goods and services referred to in paragraph 4 above.
7        The grounds for invalidity relied on by the intervener were those set out in Article 59(1)(a) of Regulation 2017/1001, read in conjunction with Article 7(1)(a), (b), (c), (d) and (e) thereof, and in Article 59(1)(b) of that regulation.
8        On 26 July 2021, the Cancellation Division upheld the application for a declaration of invalidity on the basis of Article 7(1)(b) of Regulation 2017/1001.
9        On 23 September 2021, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the Cancellation Division’s decision.
10      By the contested decision, the Board of Appeal dismissed the appeal and confirmed the Cancellation Division’s finding that the contested sign was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001). In that regard, the Board of Appeal found that the contested sign had to be regarded as a simple combination of two geometric figures and thus as a commonplace shape, a banal decorative element or a label and was therefore not able to fulfil the essential function of a trade mark as an indicator of the commercial origin of the goods and services at issue.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the intervener to pay the costs, including those incurred before EUIPO.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
13      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
14      The applicant relies on a single plea in law alleging infringement of Article 7(1)(b) of Regulation 2017/1001.
15      It must be pointed out at the outset that, given the date on which the application for registration of the contested sign was filed, namely 3 January 2017, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and 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, in the present case, so far as concerns the substantive rules, the references made by the applicant, EUIPO and the intervener in their written pleadings before the Court to Article 7(1)(b) and (c) and to Article 59(1)(a) of Regulation 2017/1001 must be understood as referring, respectively, to Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation No 207/2009, the wording of which is identical.
16      Article 7(1)(b) of Regulation No 207/2009 provides that trade marks which are devoid of any distinctive character must not be registered.
17      According to settled case-law, a trade mark has distinctive character, within the meaning of Article 7(1)(b) of Regulation No 207/2009, if that trade mark serves to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking and thus to distinguish those goods or services from those of other undertakings (see judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 23 and the case-law cited).
18      The distinctive character of a mark must be assessed, first, by reference to the goods or services in respect of which registration of the mark has been sought and, secondly, by reference to its perception by the relevant public, namely average consumers of those goods or services (see judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 24 and the case-law cited).
19      Furthermore, in order to assess whether or not a mark has any distinctive character, the overall impression created by that mark must be taken into consideration (judgment of 20 March 2019, Grammer v EUIPO (Representation of a shape), T‑762/17, not published, EU:T:2019:171, paragraph 17).
20      According to the case-law, signs which are excessively simple and consist of a basic geometric figure, such as a circle, a line, a rectangle or a conventional pentagon, are not, in themselves, capable of conveying a message which consumers will be able to remember, with the result that they will not regard them as trade marks unless they have acquired distinctive character through use (see judgment of 29 September 2009, The Smiley Company v OHIM (Representation of half a smiley smile), T‑139/08, EU:T:2009:364, paragraph 26 and the case-law cited; order of 22 October 2020, Grammer v EUIPO (Representation of a geometric figure), T‑833/19, not published, EU:T:2020:509, paragraph 35).
21      A representation of such a figure can therefore fulfil an identifying function only if it displays characteristics which may be easily and instantly memorised by the relevant public and which would make it possible for those signs to be perceived immediately as indications of the commercial origin of the goods or services they cover (see, to that effect, order of 22 October 2020, Representation of a geometric figure, T‑833/19, not published, EU:T:2020:509, paragraph 36, and judgment of 5 October 2022, Philip Morris Products v EUIPO (Representation of black and white lines), T‑502/21, not published, EU:T:2022:611, paragraph 18 and the case-law cited).
22      That case-law is applicable, by analogy, to a sign consisting of a simple and unoriginal combination of basic geometric figures, if it is used as a trade mark (see, to that effect, judgment of 3 December 2015, Omega International v OHIM (Representation of a white circle and a white rectangle inside a black rectangle), T‑695/14, not published, EU:T:2015:928, paragraph 59).
23      Lastly, it is apparent from the case-law that a minimum degree of distinctive character is sufficient to preclude the application of the absolute ground for refusal set out in Article 7(1)(b) of Regulation No 207/2009 (judgment of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 39; see also judgment of 14 May 2019, Eurolamp v EUIPO (EUROLAMP pioneers in new technology), T‑466/18, not published, EU:T:2019:326, paragraph 19 and the case-law cited).
24      In the present case, the Board of Appeal found, in paragraphs 31 to 33 of the contested decision, that the relevant public was that at which the goods and services at issue referred to in paragraph 4 above were aimed, namely the general public and the professional public in the European Union, which had a level of attention that varied depending on the degree of technology and price of those goods and services. The applicant does not dispute that definition.
25      As regards the relevant public’s perception of the contested sign, the Board of Appeal observed, in paragraph 37 of the contested decision, that that sign consisted of two completely regular basic geometric figures, namely that of a square and a rectangle, one inside the other, and that, because of its simplicity, that sign did not convey a clear message regarding the commercial origin of the goods and services at issue, as the relevant public would assume rather that it was a label, a decoration or a shape related to those goods and services. The Board of Appeal also observed, in paragraph 38 of the contested decision, that the contested sign did not have any feature capable of creating an impression sufficiently different from that produced by the mere combination of the two simple geometric figures of which it was composed, so as to transmit a minimum degree of distinctive character.
26      As regards the distinctive character in relation to the goods and services at issue, the Board of Appeal found, in paragraph 45 of the contested decision, that, in the light of its simplicity, the contested sign lacked distinctiveness with regard to all of those goods and services.
27      The applicant claims that the Board of Appeal erred in finding that the contested mark was devoid of any distinctive character. In that regard, first, it complains that the Board of Appeal applied the wrong criterion when assessing the distinctive character of the contested sign. Secondly, the applicant complains that the Board of Appeal did not correctly assess the relevant public’s perception of that sign, a perception which conferred sufficient distinctive character on that sign. Thirdly, the applicant also complains that the Board of Appeal, in essence, made errors in the assessment of the distinctive character of the contested sign in relation to the goods and services at issue.
The first complaint, alleging the wrong criterion was applied for the purposes of assessing the distinctive character of the contested sign
28      The applicant complains that the Board of Appeal, in essence, deduced that the contested sign lacked distinctive character from its descriptiveness, for the purposes of Article 7(1)(c) of Regulation No 207/2009, in relation to some of the goods and services at issue. The applicant submits, in essence, that, since neither the Cancellation Division nor the Board of Appeal carried out an assessment of the descriptiveness of the contested sign under Article 7(1)(c) of Regulation No 207/2009, the Board of Appeal should have confined itself to examining the distinctive character of that sign per se in relation to the goods and services at issue. In any event, the applicant disputes that the contested sign is descriptive with regard to the goods and services at issue in Classes 9, 25 and 40.
29      EUIPO, supported by the intervener, disputes the applicant’s arguments.
30      In that regard, it is sufficient to point out, as observed by EUIPO, that, in the contested decision, the Board of Appeal found that the contested sign lacked distinctive character in the light of its simple shape, which did not serve to indicate the commercial origin of the goods and services at issue (see paragraph 26 above), and not on the basis of considerations relating to the descriptiveness of the sign, for the purposes of Article 7(1)(c) of Regulation No 207/2009.
31      Consequently, the applicant’s first complaint must be rejected as having no factual basis.
The second complaint, alleging an incorrect assessment of the relevant public’s perception of the contested sign
32      The applicant submits that the Board of Appeal’s assessment as regards the relevant public’s perception of the contested sign is vitiated, in essence, by several defects. First of all, the applicant claims, in essence, that that assessment is contradictory in that the Board of Appeal found, on the one hand, that the contested sign was devoid of any characteristics that could convey a message which enabled the relevant public to remember it as an indication of the commercial origin of the goods and services at issue and, on the other hand, that that public perceived that sign as, inter alia, the shape of a photo frame. Next, the applicant complains that the Board of Appeal assessed the distinctive character of the contested sign without taking into account the overall impression created by that sign. Lastly, it disputes the Board of Appeal’s assessment that the contested sign would be perceived as the simple juxtaposition of two geometric figures. According to the applicant, considered as a whole, that sign consists of a stylised interplay between lines that has at the very least the required minimum degree of distinctive character. It adds that the mere fact that the rectangle and the square are basic geometric figures is in itself irrelevant for the purposes of the assessment of the distinctiveness of the contested sign as a whole, as is, in essence, confirmed by the decision-making practice of the examiners, the Cancellation Divisions and the Boards of Appeal of EUIPO.
33      EUIPO, supported by the intervener, disputes the applicant’s arguments.
34      First, as regards the allegedly contradictory nature of the Board of Appeal’s assessments relating to the relevant public’s perception of the contested sign, it must be pointed out that the mere fact that the contested sign may evoke a photo frame in the minds of the relevant public, as stated in paragraph 37 of the contested decision, does not necessarily confer on that sign recognition as a trade mark. The relevant question in that regard is whether or not the contested sign will be perceived and memorised by the relevant public as an indication of the commercial origin of the goods and services at issue.
35      In that regard, the Board of Appeal found, in paragraphs 37 and 38 of the contested decision, that the contested sign, because of its simplicity, did not convey a ‘clear message’ regarding the commercial origin of the goods and services at issue to the relevant public. However, that assessment does not contradict the Board of Appeal’s other finding that the contested sign could be perceived as, inter alia, the commonplace shape of a photo frame.
36      The applicant’s argument must therefore be rejected.
37      Secondly, as regards the applicant’s argument alleging that the contested sign was not examined as a whole, it must be pointed out that, although the Board of Appeal stated, in paragraph 37 of the contested decision, that the contested sign consisted of the contours of two basic geometric figures, namely those of a square and a rectangle, one inside of the other, it also stated that, together, those two figures represented the commonplace shape of a photo frame or of a label. In addition, in paragraph 38 of the contested decision, the Board of Appeal found that the contested sign, taken as a whole, did not have any feature capable of creating an impression sufficiently different from that produced by the mere combination of the two simple geometric figures of which it was composed. Furthermore, in paragraph 41 of the contested decision, the Board of Appeal expressly set out its view on the graphic features of the contested sign, including the specific proportions of the square inside the rectangle which, according to the applicant, confer distinctive character on that sign, and concluded, in essence, that the relevant public would not perceive them as an indication of the commercial origin of the goods and services at issue but rather as an aesthetic choice for the graphic composition in question. In addition, in paragraph 42 of the contested decision, the Board of Appeal found that the applicant had not proved that, in the present case, the simple combination of two basic geometric figures was distinctive. Consequently, in paragraph 55 of the contested decision, the Board of Appeal confirmed the Cancellation Division’s finding that the contested sign was perceived as a simple combination of two geometric figures and therefore as a commonplace shape, a banal decorative element or a label.
38      It follows that, contrary to what the applicant claims, the Board of Appeal did indeed take into account the overall impression created by the contested sign for the purposes of assessing its distinctive character.
39      The applicant’s argument must therefore be rejected.
40      Thirdly, the applicant disputes the merits of the Board of Appeal’s assessment of the contested sign, claiming, in essence, that the contested sign consists of two differently shaped figures, namely, an off-centre square inside a rectangle, the bottom border of which is significantly broader than the other three borders, which will, as a whole, be perceived as a stylised interplay between lines that has at the very least the required minimum degree of distinctive character. It adds that the mere fact that the rectangle and the square are basic geometric figures is in itself irrelevant for the purposes of the assessment of the distinctiveness of the contested sign as a whole.
41      In that regard, it must be borne in mind that the contested sign consists of a combination of a square inside a rectangle, the contours of which are delimited by fine black lines. As the Board of Appeal correctly stated, the contested sign therefore consists of two basic geometric figures, neither of which, taken on its own, is capable, in itself, of fulfilling the function of identifying the commercial origin of the goods and services at issue (see the case-law cited in paragraph 20 above).
42      Furthermore, it must be borne in mind that, if a sign consists of a simple and unoriginal combination of basic geometric figures, it will not, if it is used as a trade mark, be recognised by the average consumer as being an indication of the commercial origin of the goods or services which it covers (see paragraph 22 above).
43      Consequently, contrary to what the applicant claims, the fact that the contested sign consists of two basic geometric figures, namely a rectangle and a square, is not a fact which is irrelevant for the purposes of the assessment of its distinctive character.
44      Furthermore, as regards the applicant’s argument that, in essence, the arrangement of the square inside the rectangle confers a minimum degree of distinctive character on the contested sign, it must be held, as the Board of Appeal found in paragraphs 41 and 42 of the contested decision, that the fact that the distance between the bottom side of the rectangle and the square is greater than that between the top side of the rectangle and that square will be perceived as a normal feature of the commonplace representation of a square inside a rectangle. The abovementioned feature is therefore not unusual, visually eye-catching or easily memorisable (see, by analogy, judgment of 5 April 2017, Anta (China) v EUIPO (Representation of two lines forming an acute angle), T‑291/16, not published, EU:T:2017:253, paragraph 36).
45      It follows that, contrary to what the applicant claims, the graphic features of the contested sign on which it relies (see paragraph 40 above) are not, in themselves, capable of attracting the relevant public’s attention and conveying a message which that public can remember (see, to that effect, and by analogy, judgment of 24 November 2016, Azur Space Solar Power v EUIPO (Representation of white lines and bricks on a black background), T‑578/15, not published, EU:T:2016:674, paragraph 38).
46      Consequently, the Board of Appeal did not make any error of assessment in finding, in paragraphs 38 and 39 of the contested decision, that the overall impression created by the contested sign did not differ from that produced by the mere combination of the two simple geometric figures of which it was composed and that that sign did not display any specific features that could attract the relevant public’s attention in order to enable it to remember it as an indication of the commercial origin of the goods and services at issue.
47      That conclusion cannot be called into question by the decision-making practice of the examiners, the Cancellation Divisions and the Boards of Appeal of EUIPO, which is relied on by the applicant and which has acknowledged the distinctive character of simple geometric figures.
48      In accordance with well-established case-law, the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation No 207/2009, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice (see, to that effect, judgment of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47, and order of 11 February 2021, Klose v EUIPO, C‑600/20 P, not published, EU:C:2021:110, paragraph 21).
49      Furthermore, the mere fact that other trade marks, although they consist of simple geometric figures, have been regarded as being capable of being perceived, by the relevant public, as an indication of the commercial origin of the specific goods or services which they cover, without any possibility of confusion with those of a different origin and, therefore, as not being devoid of any distinctive character, is not conclusive for the purpose of establishing whether the contested sign has, in the present case, the minimum degree of distinctive character necessary for registration as an EU trade mark (see, to that effect, judgment of 5 April 2017, Representation of two lines forming an acute angle, T‑291/16, not published, EU:T:2017:253, paragraph 52 and the case-law cited).
50      The applicant’s second complaint must therefore be rejected as unfounded.
The third complaint, alleging errors of assessment of the distinctive character of the contested sign in relation to each of the goods and services at issue
51      The applicant also complains, in essence, that the Board of Appeal did not correctly assess the distinctive character of the contested sign in relation to the goods and services at issue. First, it submits that the Board of Appeal failed to carry out that assessment with regard to some of the goods at issue in Class 9 and to take into account the specific characteristics of certain goods in Class 11. Secondly, it submits that the Board of Appeal’s assessment in relation to the goods and services in Classes 25 and 40 is incorrect.
52      EUIPO, supported by the intervener, disputes that complaint.
53      In that regard, first, so far as concerns the goods at issue in Class 9, it must be pointed out that, in paragraph 46 of the contested decision, the Board of Appeal examined the relevant public’s perception of the contested sign with regard to all the goods in Class 9 covered by the contested sign and listed in that paragraph.
54      In particular, the Board of Appeal correctly found that the contested sign consisted of a simple combination of the two geometric figures, which could not be easily and instantly memorised as a trade mark by the relevant public. It must be held that the Board of Appeal’s reasoning applied without distinction to all the goods and services covered by the application for registration and therefore to all the goods at issue in Class 9 (see, to that effect, judgment of 21 November 2018, Bopp v EUIPO (Representation of an equilateral octagon), T‑460/17, not published, EU:T:2018:816, paragraph 57).
55      It follows that, contrary to what the applicant claims, the Board of Appeal did not fail to assess the distinctive character of the contested sign with regard to some of the goods at issue in Class 9. Moreover, such a failure cannot be deduced from the fact that, in paragraphs 47, 50 and 51 of the contested decision, the Board of Appeal set out, for the sake of completeness, more detailed considerations as regards some specific goods in Class 9 covered by the contested sign.
56      Consequently, the applicant’s complaint has no factual basis in so far as it concerns the goods at issue in Class 9.
57      Secondly, as regards the goods at issue in Class 11, it must be stated that the Board of Appeal based the lack of distinctive character of the contested sign in relation to those goods, which concerned lighting devices and solar units, on two findings. On the one hand, after referring to the list of goods in Class 11 covered by the contested sign, the Board of Appeal found, in paragraph 52 of the contested decision, that that sign could resemble the shape as that of the lighting-related goods in that class, such as lighting devices and solar units, in respect of which it could not be ruled out that they were designed in a rectangular shape with another rectangle in their interior. On the other hand, the Board of Appeal found that if the contested sign were affixed to the goods at issue in Class 11, it would be perceived as an outline of their design or as a decorative element.
58      In that regard, it must be pointed out that the perception of the contested sign as a decorative element stems, in essence, from its simplicity, in that it consists of two basic geometric figures and is devoid of characteristics that could convey a message which consumers can remember (see paragraphs 37, 38, 39, 44 and 55 of the contested decision).
59      As is apparent from paragraphs 41 to 50 above, those assessments on the part of the Board of Appeal are correct.
60      Consequently, the applicant’s argument that some of the lighting-related goods in Class 11 do not have a rectangular shape or a shape which is identical to that of the contested sign must be rejected as ineffective, because the Board of Appeal’s assessment is based not only on the fact that the contested sign could resemble the shape of the lighting-related goods at issue in Class 11, but also on the fact that the relevant public could perceive it as an outline of their design or as a decorative element (see paragraph 57 above).
61      It follows that the applicant’s complaint is unfounded in so far as it concerns the goods at issue in Class 11.
62      Thirdly, as regards the goods at issue in Class 25, the Board of Appeal found, in paragraph 53 of the contested decision, that the contested sign was likely to be perceived as a basic combination of a rectangle and a square, representing nothing beyond a simple graphic element or a label, which was neither easily and instantly memorised nor later recalled as a trade mark by the relevant public. Furthermore, the Board of Appeal found that it was common knowledge that those goods could bear rectangular or square price tags or labels, generally displaying the actual trade mark, and that, if the contested sign were affixed directly to those goods, it would be perceived as a decorative element and not as a distinctive trade mark.
63      The applicant submits that, when the contested sign is affixed to clothing or other goods in Class 25, the relevant public will clearly be able to perceive it as an indication of the origin of those goods, since, in the clothing sector, consumers are accustomed to minimalistic and basic trade marks, a point which it argues is, in essence, borne out by a number of earlier registrations.
64      In that regard, on the one hand, it must be pointed out that, in accordance with the case-law which has been referred to in paragraph 48 above, the applicant’s reliance on earlier registrations of signs consisting of minimalistic figures is ineffective for the purposes of the assessment of a sign’s distinctive character, since that assessment is based solely on Regulation No 207/2009. Moreover, it must be stated that the applicant itself acknowledges that previous decisions of the adjudicating bodies of EUIPO in similar cases are not binding on EUIPO.
65      On the other hand, even if the relevant public is commonly faced with minimalistic trade marks in the clothing sector, that is not sufficient to cast doubt on the Board of Appeal’s analysis, which has been referred to in paragraph 62 above, regarding the decorative function of the contested sign or its function as a label and its lack of distinctive character in relation to the goods at issue in Class 25.
66      The applicant’s complaint is therefore unfounded in so far as it concerns the goods at issue in Class 25.
67      Fourthly, as regards the services at issue in Class 40, the Board of Appeal found, in paragraph 54 of the contested decision, that the contested sign was, inherently, devoid of any distinctive character because it was likely to be perceived either as a simple decorative figure representing a square inside a rectangle, which lacked any memorable elements that would allow the attention of the relevant public to be captured, or as the actual format of the printed documents, which contained a frame.
68      The applicant disputes that finding. In that regard, it submits that the specific proportions of the contested sign make the specific combination of the square and rectangle distinctive in relation to the services at issue in Class 40. It argues that the overall impression of the contested sign creates an unusual image in relation to those services.
69      However, the applicant’s line of argument cannot be accepted for the reasons which have already been set out in paragraphs 41 to 46 above.
70      The applicant’s complaint is therefore unfounded in so far as it concerns the services at issue in Class 40.
71      The applicant’s third complaint must thus be rejected as unfounded.
72      By way of conclusion to all of the foregoing, the single plea must be rejected as unfounded and consequently the action must be dismissed in its entirety.
Costs
73      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.
74      Since the applicant has been unsuccessful and a hearing has taken place, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Polaroid IP BV to pay the costs.
Kowalik-Bańczyk
Hesse
Dimitrakopoulos
Delivered in open court in Luxembourg on 7 February 2024.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.