JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
8 November 2018 (*)
(EU trade mark — Application for EU word mark PERFECT BAR — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001))
In Case T‑758/17,
Perfect Bar LLC, established in San Diego, California (United States), represented by F. Miazzetto, J.L. Gracia Albero and E. Cebollero González, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and D. Walicka, acting as Agents,
defendant,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 5 September 2017 (Case R 2439/2016-4), relating to an application for registration of the word sign PERFECT BAR as an EU trade mark,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the application lodged at the Court Registry on 17 November 2017,
having regard to the response lodged at the Court Registry on 21 December 2017,
having regard to the decision of the President of the Fifth Chamber of 18 June 2018 joining Cases T‑758/17 and T‑759/17 for the purposes of the oral part of the procedure,
further to the hearing on 28 June 2018,
gives the following
Judgment
Background to the dispute
1        On 26 April 2016, the applicant, Perfect Bar LLC, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (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)).
2        Registration as a mark was sought for the word sign PERFECT BAR.
3        The goods in respect of which registration was sought are in Class 5 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: ‘Nutritional energy bars for use as a meal substitute; Nutritional supplement meal replacement bars for boosting energy; Nutritional supplement energy bars; Protein supplements; Dietary and nutritional supplements; Nutritional supplements in the form of bars and bites; nutritional supplements in the form of food bars for use as a meal substitute; nutritional and dietary supplements formed and packaged as bars’.
4        On 2 November 2016, the examiner dismissed the application in respect of all the goods in question on the ground that the mark applied for was descriptive pursuant to Article 7(1)(c) of Regulation No 207/2009 (now Article 7(1)(c) of Regulation 2017/1001) and devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001).
5        On 27 December 2016, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001) against the examiner’s decision.
6        By decision of 5 September 2017 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal, taking the view that the mark applied for was descriptive and devoid of distinctive character in respect of the goods in question.
7        In essence, the Board of Appeal found that the mark applied for was descriptive of the nature and quality of the goods in question, given that the English-speaking part of the general public would understand the word elements of the mark applied for as referring to a bar of food having all essential elements and being excellent in all respects.
8        In so far as the mark applied for was descriptive of the goods in question, the Board of Appeal also found that that mark was devoid of distinctive character in respect of those goods.
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision;
–        allow registration of the mark applied for;
–        order EUIPO to pay all of the costs.
10      EUIPO contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
11      In response to a question from the Court at the hearing, the applicant withdrew the head of claim requesting the Court to allow registration of the trade mark applied for, and formal note of that withdrawal was recorded in the minutes of the hearing.
Law
12      In support of its action, the applicant relies, in essence, on two pleas in law alleging, first, infringement of Article 7(1)(c) of Regulation No 207/2009 and, second, infringement of Article 7(1)(b) of that regulation.
First plea in law, alleging infringement of Article 7(1)(c) of Regulation No 207/2009
13      The first plea is divided into three parts. First, the applicant disputes the meaning of the mark applied for established by the contested decision. Second, the applicant criticises the Board of Appeal on the ground that it failed to assess the descriptive character of the mark applied for in relation to each type of goods in question. Third, it maintains that the Board of Appeal ought to have taken into account previous registrations of similar marks.
14      EUIPO disputes the applicant’s arguments.
15      Article 7(1)(c) of Regulation No 207/2009 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 cannot be registered. According to paragraph 2 of that article, paragraph 1 is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.
16      In that regard, it should be borne in mind that, according to the case-law, Article 7(1)(c) of Regulation No 207/2009 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 thus pursues an aim which is in the public interest, namely that signs or indications may be freely used by all (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31, and of 27 February 2015, Universal Utility International v OHIM (Greenworld), T‑106/14, not published, EU:T:2015:123, paragraph 14).
17      Furthermore, signs or indications which may serve, in trade, to designate the characteristics of the goods or services in respect of which registration is sought are, by virtue of Article 7(1)(c) of Regulation No 207/2009, 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 in question, in order to enable the consumer who purchases the goods or services designated by the mark to make the same choice again, on the occasion of a subsequent purchase, if it is a positive experience, or to make a different choice, if it is a negative one (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 15).
18      Additionally, as regards the absolute ground for refusal listed in Article 7(1)(c) of Regulation No 207/2009, the descriptive character of a sign may be assessed only, first, in relation to the goods or services in question and, second, in relation to the perception of the relevant public, which is composed of the consumers of those goods or services (see, to that effect, judgment of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 38).
19      It follows that, in order for a sign to be caught by the prohibition set out in that provision, there must be a sufficiently direct and specific relationship between the sign and the goods or services in question to enable the relevant public immediately to perceive, without further thought, a description of the goods and services in question or one of their characteristics (see judgment of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 25 and the case-law cited; judgment of 21 January 2015, Grunding Multimedia v OHIM (GentleCare), T‑188/14, not published, EU:T:2015:34, paragraph 19).
20      It is in the light of those principles that the first plea must be examined.
21      In the present case, the Board of Appeal found, in paragraph 16 of the contested decision, that the relevant public in relation to which the absolute ground for refusal must be examined is the English-speaking part of the general public, a fact which the applicant does not dispute.
The meaning of the mark applied for
22      In the context of the first part of the first plea, the applicant submits that the message conveyed by the mark applied for has been established incorrectly by the Board of Appeal. It claims that, first, the term ‘perfect’ cannot be regarded as being descriptive of the characteristics of the goods at issue and that the term ‘bar’ can also refer to meanings other than that of their nature. Second, an additional cognitive process is necessary to understand the message conveyed by the mark applied for, that is to say, the ideal state of grace experienced by the relevant public when consuming the goods in question.
23      In the present case, the Board of Appeal found, in paragraph 16 of the contested decision, that the term ‘perfect’ implies the idea of total satisfaction and that the term ‘bar’ refers to a bar of food containing ingredients intended to provide nutritional and energy supplements to the person consuming it. It concluded, in essence, in paragraph 19 of the contested decision, that the mark applied for refers to perfect bars.
24      First, as regards the applicant’s argument that the word elements have meanings other than those accepted by the Board of Appeal, it should be borne in mind that, according to the case-law, pursuant to Article 7(1)(c) of Regulation No 207/2009, a word sign must be refused registration if at least one of its possible meanings designates a characteristic of the goods or services concerned (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32).
25      As is apparent from paragraph 23 above, the Board of Appeal correctly stated that the word elements of the mark applied for refer to a bar of food which is excellent in all respects.
26      In addition, it has not been established that the meaning of the words ‘perfect’ and ‘bar’ was assessed incorrectly by the Board of Appeal. The fact, even if correct, that the words ‘perfect’ and ‘bar’ may also have other meanings is, in any event, irrelevant because, as is apparent from the case-law cited in paragraph 24 above, it suffices that one of the possible meanings of the mark applied for is correctly established by the Board of Appeal.
27      Second, as regards the applicant’s argument that the combination of the word elements of the mark applied for requires an additional cognitive effort in order to perceive their suggestive meaning, it must be noted that no reflection on the part of the relevant public will be necessary to understand the message of the mark applied for.
28      As EUIPO has correctly observed, the combination of the terms ‘perfect’ and ‘bar’ does not result in an unusual syntax or convey a new meaning.
29      Moreover, the applicant has not adduced evidence that the mark applied for creates in the mind of the relevant public an impression sufficiently far removed from that produced by the simple juxtaposition of the verbal elements of which it consists as to alter its meaning or scope.
30      Accordingly, the Board of Appeal acted correctly in finding, in paragraph 18 of the contested decision, that the mark applied for referred to goods presented in the shape of a bar fulfilling all ideal requirements.
The link between the mark applied for and the goods in question
31      In the context of the second part of the first plea, the applicant criticises, in essence, the Board of Appeal for not having assessed the descriptiveness of the mark applied for in respect of each type of goods in question. The mark applied for covers different types of goods which do not all belong to the same homogeneous category, with the result that the Board of Appeal ought, in its assessment of the link between the goods at issue and the mark applied for, to have distinguished the goods at issue presented in the shape of bars from other forms of food supplements.
32      EUIPO, for its part, takes the view that all of the goods in question belong to the category of dietary and nutritional supplements, having a common purpose, and of which the goods in the shape of bars form a subcategory for which the mark applied for is directly descriptive. It submits that the Board of Appeal was entitled to confine itself to general reasoning in applying the same ground for refusal to the category of homogeneous goods of dietary and nutritional supplements and did not have to assess the mark applied for in respect of each type of goods in question.
33      In accordance with the case-law referred to in paragraph 18 above, it is necessary to examine whether there is, from the point of view of the relevant public, a sufficiently direct and specific relationship between the mark applied for and the goods in question.
34      In that regard, it is apparent from the case-law, first, that the examination of the absolute grounds for refusal must be carried out in relation to each of the goods or services for which trade mark registration is sought and, second, that the decision by which the competent authority refuses registration of a mark must, in principle, state reasons in respect of each of those goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 29 and the case-law cited).
35      The Court of Justice has, it is true, acknowledged that, where the same ground for refusal is given for a category or group of goods or services, the reasoning may be general for all of the goods or services in question (see judgment of 17 October 2013, Isdin v Bial-Portela, C‑597/12 P, EU:C:2013:672, paragraph 26 and the case-law cited).
36      The fact remains that such an option can extend only to goods or services which have a sufficiently direct and specific link to each other to the extent that they form such a sufficiently homogeneous category as to enable all the factual and legal considerations constituting the grounds of the decision in question, first, to explain adequately the reasoning followed by the Board of Appeal for each of the goods and services belonging to that category and, second, to be applied without distinction to each of the goods or services in question (see judgments of 17 October 2013, Isdin v Bial-Portela, C‑597/12 P, EU:C:2013:672, paragraph 27 and the case-law cited, and of 2 April 2009, Zuffa v OHIM(ULTIMATE FIGHTING CHAMPIONSHIP), T‑118/06, EU:T:2009:100, paragraph 28 and the case-law cited).
37      In the present case, the Board of Appeal found, in paragraph 18 of the contested decision, that the public will understand the word elements of the mark applied for as referring to a bar of food having all essential elements and being excellent in all respects. It concluded, in paragraph 19 of the contested decision, that those word elements are descriptive not only of the nature of the goods, namely bars, but also of their perfect quality.
38      As the applicant claims, it should be noted that the goods at issue, as is clear from the list of goods for which registration of the trade mark was applied for, can be divided into two categories, depending on whether they are presented in the form of a bar or not. It follows that it is necessary to assess the descriptiveness of the mark applied for, first, in relation to the goods in question presented in the form of a bar, namely ‘Nutritional energy bars for use as a meal substitute; Nutritional supplement meal replacement bars for boosting energy; Nutritional supplement energy bars; Nutritional supplements in the form of bars and bites; Nutritional supplements in the form of food bars for use as a meal substitute; nutritional and dietary supplements formed and packaged as bars’ and, second, in relation to the goods which are not in the form of a bar, namely ‘Protein supplements’ and ‘Dietary and nutritional supplements’.
39      As regards the goods presented in the form of a bar, the Board of Appeal could validly conclude that the mark applied for is descriptive in so far as, as is apparent from paragraphs 18 and 19 of the contested decision, the public will be able to understand the word elements of the mark applied for as referring to a food bar which is excellent in all respects and where all those elements are descriptive not only of the nature of the goods but also of their quality. All those goods take the form of a bar, which is expressly evident from the list of goods covered by the application for registration.
40      By contrast, such a conclusion cannot be reached in relation to the goods which are not in the form of a bar.
41      It should be noted that the Board of Appeal’s findings relating to the descriptive character of the mark applied for, in paragraphs 18 and 19 of the contested decision, refer solely to goods in the form of a bar. It is apparent, inter alia from the reasoning in paragraph 19 of the contested decision, that the word elements are descriptive of the ‘nature of the goods (bars)’. However, the Board of Appeal did not establish, in the contested decision, that all the goods at issue could be presented in the form of a bar.
42      It follows that the Board of Appeal did not establish to the requisite legal standard that the mark applied for is descriptive in respect of ‘Protein supplements’ and ‘Dietary and nutritional supplements’.
43      In that regard, it is irrelevant, contrary to EUIPO’s submissions, that the Board of Appeal found, in paragraph 15 of the contested decision, that the goods applied for are all related to dietary and nutritional supplements constituting a homogeneous category in respect of which the Board of Appeal could confine itself to general reasoning, since its findings concerning the descriptive character of the mark applied for relate only to the goods which present themselves in the form of a bar (see paragraph 41 above) and not to the dietary and nutritional supplements as a homogeneous category. It must necessarily be held that the Board of Appeal did not establish a direct and specific link between the mark applied for and the goods in question belonging to that homogeneous category.
44      Accordingly, in so far as the Board of Appeal’s reasoning does not refer to the homogeneous category defined by it in paragraph 15 of the contested decision, the case-law cited in paragraphs 35 and 36 of the present judgment cannot be applied.
45      In addition, it must be added that EUIPO’s assertion that the goods concerned are dietary and nutritional supplements which have a common purpose and are in the form of bars is not apparent from the contested decision.
46      In particular, EUIPO raised the argument at the hearing that the list of goods in respect of which registration of the mark was applied for, as drawn up by the applicant and reproduced in paragraph 3 of the present judgment, in so far as it includes ‘Nutritional supplement energy bars’ and ‘nutritional and dietary supplements formed and packaged as bars’, shows that the applicant itself considers that ‘Protein supplements’ and ‘Dietary and nutritional supplements’ may be presented in the form of a bar.
47      However, it is not apparent from the contested decision that the Board of Appeal carried out such reasoning with regard to the list of goods in question.
48      Similarly, in the present case, the argument that an absolute ground for refusal under Article 7(1)(c) of Regulation No 207/2009 does not apply solely to the goods in respect of which the mark is directly descriptive, but also to the broad category which includes an identifiable subcategory or to specific goods in respect of which the mark applied for is directly descriptive, an argument which EUIPO derives from the judgment of 7 June 2001, DKV v OHIM (EuroHealth) (T‑359/99, EU:T:2001:151), and particularly from paragraph 33 thereof, cannot succeed.
49      In that regard, it must be stated that it is true that, in paragraphs 26 and 27 of the judgment of 7 June 2001, EuroHealth (T‑359/99, EU:T:2001:151), the Court held that the mark applied for was descriptive of the health insurance services which were included in the category of ‘insurance’. However, in paragraph 33 of that judgment, referred to by EUIPO, it was noted that registration of the mark at issue was sought in respect of all services falling within the category of ‘insurance’ without distinction.
50      That approach is, moreover, consistent with the settled case-law, according to which the fact that a sign is descriptive in respect of only some of the goods and services within a category listed as such in the application for registration does not preclude that sign from being refused registration, since, if in such a case the sign at issue were to be 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).
51      However, in contrast to the judgment of 7 June 2001, EuroHealth (T‑359/99, EU:T:2001:151), the Board of Appeal has not established in the present case that the goods in question belonging to the categories ‘Protein supplements’ and ‘Dietary and nutritional supplements’, referred to in the application for registration, include goods in the form of a bar, as is apparent in particular from paragraph 47 above.
52      Furthermore, the case-law cited in paragraph 50 above cannot be applied by analogy to cases where EUIPO may rely on general reasoning in respect of categories of ‘homogeneous’ goods within the meaning of the case-law cited in paragraph 36 of this judgment.
53      It follows that, in the light of all the foregoing, the Board of Appeal did not establish to the requisite legal standard the descriptive character of the mark applied for in relation to ‘Protein supplements’ and ‘Dietary and nutritional supplements’. Consequently, it is necessary to annul the contested decision in respect of those goods.
54      Consequently, the third part of the first plea should be examined only in regard to the goods in question presented in the form of a bar.
Failure to take account of registrations of earlier trade marks
55      In the context of the third part of the first plea, the applicant criticises the Board of Appeal for having failed, during the examination of the application for registration, to take account of earlier EUIPO registrations concerning similar marks and an identical mark in the United States. The applicant takes the view, in particular, that the contested decision breaches the principles of equal treatment and sound administration in that regard
56      In the first place, as regards the earlier registrations of similar trade marks carried out by EUIPO, it must be borne in mind that, according to the case-law, the decisions concerning the registration of a sign as an EU trade mark which EUIPO is required to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Consequently, the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of that regulation, as interpreted by the EU Courts, and not on the basis of the previous decision-making practice of those Boards (see judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65 and the case-law cited, and of 3 July 2013, Warsteiner Brauerei Haus Cramer v OHIM — Stuffer (ALOHA 100% NATURAL), T‑243/12, not published, EU:T:2013:344, paragraph 43 and the case-law cited).
57      Additionally, EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law. Although, in the light of the principles of equal treatment and sound administration, EUIPO must take into account the decisions previously taken in respect of similar applications and consider with special care whether it should decide in the same way or not, the way in which those principles are applied must, however, be consistent with respect for the principle of legality. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else (see, to that effect, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 76).
58      Moreover, for reasons of legal certainty and sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77, and of 9 March 2017, Maximum Play v EUIPO (MAXPLAY), T‑400/16, not published, EU:T:2017:152, paragraph 49).
59      In the present case, as is apparent from paragraph 39 above, the Board of Appeal established the descriptive character of the mark applied for in respect of the goods having the form of a bar, within the meaning of Article 7(1)(c) of Regulation No 207/2009.
60      Therefore, the applicant cannot criticise the Board of Appeal for having based the contested decision on Regulation No 207/2009 as interpreted by the Courts of the European Union, rather than on EUIPO’s earlier practice in relation to registration of EU trade marks. Nor can the applicant validly rely, for the purpose of invalidating that finding, on the principles of equal treatment and sound administration, with the result that it is necessary to reject its argument.
61      In the second place, in relation to the applicant’s reliance on the registration of the sign in question as a trade mark in the United States, suffice it to recall that, according to settled case-law, the EU trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system (judgments of 5 December 2000, Messe München v OHIM (electronica), T‑32/00, EU:T:2000:283, paragraph 47, and of 24 November 2005, Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 70).
62      That is so even if such a decision was adopted in a country belonging to the linguistic area in which the sign in question originated (see, to that effect, judgments of 27 February 2002, Streamserve v OHIM (STREAMSERVE), T‑106/00, EU:T:2002:43, paragraph 47, and of 24 June 2014, 1872 Holdings v OHIM — Havana Club International (THE SPIRIT OF CUBA), T‑207/13, not published, EU:T:2014:570, paragraph 32).
63      Consequently, the registrability of a sign as an EU mark must be assessed by reference only to the relevant EU rules. EUIPO and, if appropriate, the EU Courts are not bound by a decision in a third country that the sign in question is registrable as a national mark (judgments of 27 February 2002, STREAMSERVE, T‑106/00, EU:T:2002:43, paragraph 47, and of 24 November 2016, Azur Space Solar Power v EUIPO(Representation of black lines and bricks), T‑614/15, not published, EU:T:2016:675, paragraph 44).
64      It is therefore necessary to reject the applicant’s argument alleging failure to take into consideration the registration of an identical mark in the United States.
65      It follows from all of the foregoing considerations that the first plea must be upheld as regards ‘Protein supplements’ and ‘Dietary and nutritional supplements’.
Second plea in law, alleging infringement of Article 7(1)(b) of Regulation No 207/2009
66      In the context of its second plea, the applicant disputes the Board of Appeal’s finding that the mark applied for, since it is descriptive, necessarily lacks distinctiveness. It submits that the mark applied for is not descriptive and that it has a minimum degree of distinctiveness on account of its suggestive nature.
67      EUIPO disputes the applicant’s arguments.
68      In that regard, it should be pointed out that, as is evident from Article 7(1) of Regulation No 207/2009, it is sufficient that one of the absolute grounds for refusal applies in order for the sign not to be registrable as an EU trade mark (judgments of 19 September 2002, DKV v OHIM, C‑104/00 P, EU:C:2002:506, paragraph 29, and of 7 October 2015, Cyprus v OHIM (XAΛΛOYMI and HALLOUMI), T‑292/14 and T‑293/14, EU:T:2015:752, paragraph 74).
69      Furthermore, since, within the meaning of Article 7(1)(c) of Regulation No 207/2009, the mark applied for is descriptive in respect of the goods in question, and since that ground alone justifies refusal of the contested registration, there is no need to examine the merits of the plea alleging breach of Article 7(1)(b) of that regulation (see, to that effect, order of 13 February 2008, Indorata-Serviços e Gestão v OHIM, C‑212/07 P, not published, EU:C:2008:83, paragraph 28).
70      In the present case, the Board of Appeal found, in essence, in paragraph 22 of the contested decision, that the mark applied for is, on account of its descriptive character, also devoid of distinctive character.
71      In the first place, as regards the goods in question in the form of a bar, it follows from paragraph 39 above that the mark applied for is descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009.
72      Thus, by reason of the case-law cited in paragraph 69 of this judgment, it is necessary to reject the applicant’s argument alleging infringement of Article 7(1)(b) of Regulation No 207/2009, having regard to the goods in question in the form of a bar.
73      In the second place, in relation to ‘Protein supplements’ and ‘Dietary and nutritional supplements’, as is apparent from paragraph 53 above, the Board of Appeal’s finding that the mark applied for is descriptive cannot apply.
74      Thus, in so far as the only reason why the Board of Appeal found, in paragraph 22 of the contested decision, that the mark applied for was devoid of distinctive character lay in its descriptiveness, it is also necessary to invalidate the Board of Appeal’s finding that the mark applied for is devoid of distinctive character in respect of ‘Protein supplements’ and ‘Dietary and nutritional supplements’.
75      Consequently, it is necessary to uphold the second plea in relation to ‘Protein supplements’ and ‘Dietary and nutritional supplements’.
76      In the light of all of the foregoing, the contested decision must be annulled in so far as it concerns ‘Protein supplements’ and ‘Dietary and nutritional supplements’.
Costs
77      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. In addition, under Article 134(3) of the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order that the costs be shared.
78      In the present case, since the action has been upheld only in respect of some of the goods at issue, it is appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 September 2017 (Case R 2439/2016-4) in respect of ‘Protein supplements’ and ‘Dietary and nutritional supplements’;
2.      Dismisses the action as to the remainder;
3.      Orders each party to bear its own costs.
Gratsias
Labucka
Ulloa Rubio
Delivered in open court in Luxembourg on 8 November 2018.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.