JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
19 June 2019 (*)
(EU trade mark — Application for a three-dimensional EU trade mark — Shape of a faucet — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001)
In Case T‑213/18,
Brita GmbH, established in Taunusstein (Germany), presented by P. Koch Moreno, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Crespo Carrillo, acting as Agent,
defendant,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 22 January 2018 (Case R 1864/2017-4), relating to an application for registration of a three-dimensional sign consisting of the shape of a faucet as an EU trade mark,
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 27 March 2018,
having regard to the response lodged at the Court Registry on 15 June 2018,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 16 November 2016, the applicant, Brita GmbH, 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 three-dimensional sign reproduced below:
3        The goods and services in respect of which registration was sought are in Classes 7, 11, 21, 32, 35, 37 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, and correspond, for each of those classes, to the following description:
–        Class 7: ‘Beverage-making machines and installations consisting thereof; electric machines and apparatus for producing carbonated beverages; electromechanical appliances for preparing and dispensing hot, boiled and refrigerated water and/or beverages and installations consisting thereof, including filling machines; beverage selling machines; filling machines; dishwashers and their accessories’;
–        Class 11: ‘Apparatus and installations for water treatment; installations and filters for water sterilization removing bacteria and viruses, purifying filters, filters for drinking water; membrane filters for microfiltration, ultrafiltration, nanofiltration and reverse osmosis; components and accessories for apparatus and installations for water treatment, in particular filter disks, bags containing ion exchangers and activated carbon, all the aforesaid goods included in this class; water treatment apparatus, water filtering apparatus, gassing apparatus, water treatment systems; water filters and water filtration apparatus based on membrane technology, reverse osmosis technology, UV technology, ozone technology, carbon technology in particular with activated carbon blocks; water filters and water filtering apparatus for microbiological sterilization; pressure-driven filters, gravity filters, suction filter cartridges, hand-operated filter cartridges, filter cartridges with a sunken filter mechanism, filter cartridges with ion exchangers and/or adsorbents (included in this class), all of the aforesaid for water treatment; filters for water kettles, coffee machines, tea machines, espresso machines, samovars, rice cookers, automatic vending machines, large catering apparatus, ice machines, combination steamers, steam cookers, ovens, dishwashing machines, percolators, refrigerators, refrigerating apparatus, apparatus for mixing beverages, cold drink dispensers, kitchen fittings, except for filters for machines and engines; taps with integrated filter systems; water dispensers, cooled beverage dispensers; beverage dispensers, except vending machines; automatic water treatment equipment with automatic cut-off fitted with consumption indicators, fittings, filters, units for the mineralization of water, heating devices, cooling devices, flavouring devices, carbon dioxide devices; water treatment installations consisting of the aforesaid apparatus; all the aforesaid goods and accessories, in particular refill elements, cartridges and spare parts, included in this class; electric kettles; cooling devices for beverages for household use’;
–        Class 21: ‘Household non-electric apparatus for the production of carbonated water and beverages; non-electric coffee pots and tea sets; utensils and containers for household or kitchen use of plastic or glass; cups, decanters, bottles, containers with and without filters; non-electric coffee and tea pots; drinking glasses, drinking vessels in the form of bottles, dishes; glassware, porcelain and earthenware, included in this class; heat-insulated containers, insulating flasks for beverages, refrigerating bottles; non-electric hand implements for household purposes, namely, for the production of mineral water and beverages’;
–        Class 32: ‘Filtered water, included in this class; preparations for making mineral water, aerated water, table water, drinking water, spring water, mineral water; carbonated beverages; non-alcoholic drinks, fruit drinks and fruit nectars; syrups and other preparations for making beverages; beverages made with natural mineral water and fruit extracts, flavoured mineral waters, flavoured drinking waters, all the aforesaid goods also including aromatic additives and products for making such beverages’;
–        Class 35: ‘Rental of vending machines for coffee, tea and sugar’;
–        Class 37: ‘Installation, maintenance and repair of machines; installation of kitchen equipment; installation and repair of refrigerating apparatus; installation and repair of electronic apparatus; installation of beverage dispensers and faucets; maintenance and cleaning of water filters, water filter apparatus, coffee, tea and sugar dispensers, filtering products and accessories, beverage dispensers, faucets; provision of information relating to the repair and maintenance of machines, cooking apparatus, refrigerating apparatus and consumer electronic apparatus; repair services of water filters and their components, water filtering apparatus and their components, vending machines for coffee, tea and sugar; installation and exchange of bottles, machines, kitchen equipment, refrigerating apparatus, electronic apparatus, beverage dispensers and faucets, water filters, water filtering apparatus, coffee, tea and sugar dispensers, filtration products and accessories, beverage dispensers, faucets, electronic apparatus for consumers (after-sales services)’;
–        Class 40: ‘Rental of water filters, water filtering apparatus; processing and recycling of water filters, water filtration apparatus and their components; processing of bottles, including their labelling and design according to customer specification.’
4        By decision of
29 June 2017, the examiner
partially rejected the application for registration of the mark applied for, on the basis of Article 7(1)(b) of Regulation No 207/2009 (now
Article 7(1)(b) of Regulation 2017/1001), on the ground that the sign at issue
lacked distinctive character
for part of the goods and services covered by the application for registration
and included in
Classes 7, 11, 21, 37 and 40, that is to say the following goods (‘the refused goods’) and the following services:
–        Class 7: ‘Beverage-making machines and installations consisting thereof; electric machines and apparatus for producing carbonated beverages; electromechanical appliances for preparing and dispensing hot, boiled and refrigerated water and/or beverages and installations consisting thereof, including filling machines’;
–        Class 11: ‘Apparatus and installations for water treatment; installations and filters for water sterilization removing bacteria and viruses, purifying filters, filters for drinking water; components and accessories for apparatus and installations for water treatment, in particular filter disks, bags containing ion exchangers and activated carbon, all the aforesaid goods included in this class; water treatment apparatus, water filtering apparatus, gassing apparatus, water treatment systems; water filters and water filtration apparatus based on membrane technology, reverse osmosis technology, UV technology, ozone technology, carbon technology in particular with activated carbon blocks; water filters and water filtering apparatus for microbiological sterilization; taps with integrated filter systems; water dispensers, cooled beverage dispensers; beverage dispensers, except vending machines; automatic water treatment equipment with automatic cut-off fitted with consumption indicators, fittings, filters, units for the mineralization of water, heating devices, cooling devices, flavouring devices, carbon dioxide devices; water treatment installations consisting of the aforesaid apparatus; all the aforesaid goods and accessories, in particular refill elements, cartridges and spare parts, included in this class’;
–        Class 21: ‘Household non-electric apparatus for the production of carbonated water and beverages’;
–        Class 37: ‘Installation, maintenance and repair of machines; installation of kitchen equipment; installation and repair of electronic apparatus; installation of beverage dispensers and faucets; maintenance and cleaning of water filters, water filter apparatus, coffee, tea and sugar dispensers, filtering products and accessories, beverage dispensers, faucets; provision of information relating to the repair and maintenance of machines, cooking apparatus, refrigerating apparatus and consumer electronic apparatus; repair services of water filters and their components, water filtering apparatus and their components; installation and exchange of bottles, machines, kitchen equipment, refrigerating apparatus, electronic apparatus, beverage dispensers and faucets, water filters, water filtering apparatus, coffee, tea and sugar dispensers, filtration products and accessories, beverage dispensers, faucets, electronic apparatus for consumers (after-sales services)’;
–        Class 40: ‘Rental of water filtering apparatus.’
5        On 24 August 2017, 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. The statement of grounds of the appeal was lodged with the Board of Appeal on 27 October 2017.
6        By decision of 22 January 2018 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal. Like the examiner, it held that the sign for which registration was sought was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 in respect of all the goods and services referred to in paragraph 4 above. In essence, it found that the sign at issue — a mere representation of a faucet for dispensing water or beverages — could not be perceived as distinctive, because, taken in its entirety, it contained no element which departs significantly from the standard shape of water and beverage dispensers and which could fulfil the function of indicating the origin of the mark applied for.
Forms of order sought
7        The applicant claims that the Court should:
–        annul the contested decision;
–        order the registration of the mark applied for;
–        order EUIPO to pay the costs.
8        EUIPO contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
Admissibility
Admissibility of the applicant’s second head of claim
9        By its second head of claim, the applicant requests the Court to order the registration of the mark applied for in respect of all the goods and services applied for included in Classes 7, 11, 21, 37 and 40. Such a claim, therefore, requests the Court to issue a direction to that effect to EUIPO.
10      It is clear from settled case-law that, in an action before the EU Courts against the decision of a Board of Appeal of EUIPO, EUIPO is required, under Article 72(6) of Regulation
2017/1001, to take the measures necessary to comply with judgments of the EU judicature.
Accordingly, it is not for the Court to issue directions to EUIPO. It is for the latter to draw the appropriate inferences from the operative part and grounds of the Court’s judgments (see judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 20 and the case-law cited).
11      Therefore, the applicant’s second head of claim requesting the Court to order EUIPO to authorise the registration of the mark applied for in respect of all the goods and services applied for included in Classes 7, 11, 21, 37 and 40 is inadmissible.
Admissibility of images produced by the applicant in paragraphs 45, 53, 54 and 57 of the application
12      EUIPO submits, in its response, that the six images displayed in paragraphs 45 (two images), 53 (the second image), 54 (two images) and 57 (one image) of the application were not submitted either to the examiner or to the Board of Appeal, have thus been produced for the first time before the Court and should, therefore, be declared inadmissible.
13      By a measure of organisation of procedure of 14 February 2019, the applicant was invited to submit its comments regarding the admissibility of those images.
14      In its reply of 1 March 2019, the applicant stated, in essence, first, that the images presented in paragraphs 45 and 54 of the application were only ‘complementary’ in order to complete the evidence already submitted during the administrative proceedings before EUIPO, secondly, that the second image in paragraph 53 of the application had been included, particularly, in the examiner’s notice of grounds for refusal of application of 18 January 2017 and that therefore it could not be regarded as new evidence and, thirdly, that the image in paragraph 57 was submitted after the administrative proceedings for the purposes of disputing the Board of Appeal’s finding in paragraph 16 of the contested decision according to which the top of the structure at issue is not visually striking.
15      In that regard, it must be noted that the purpose of an action before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO within the meaning of Article 72 of Regulation 2017/1001. It follows that the Court cannot re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. The legality of a decision of a Board of Appeal of EUIPO must be assessed in the light of the information available to it when it adopted that decision (judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraphs 136 to 138; see also, judgment of
9 March 2018, Recordati Orphan Drugs v EUIPO — Laboratorios Normon (NORMOSANG), T‑103/17, not published, EU:T:2018:126, paragraph 26 and the case-law cited).
16      Following an examination of the case-file, and in the light of the explanations provided by the applicant in its observations of 1 March 2019, it must be held that the images presented in paragraphs 45, 54 and 57 of the application, in contrast to the image at issue in paragraph 53, do not appear in the administrative file of the proceedings before EUIPO. Therefore, it is necessary to reject the images presented in paragraphs 45, 54 and 57 of the application as inadmissible.
Substance
The single plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
17      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001 in that the Board of Appeal erred in finding that the mark applied for lacks distinctive character.
18      That plea comprises three complaints, alleging, first, an error of assessment concerning the level of attention of the relevant public, second, a failure to state reasons and an error of assessment due to the fact that the Board of Appeal did not analyse or explain the lack of distinctive character of the sign at issue with regard to each of the goods and services covered and, third, an error of assessment concerning the distinctive character of the sign applied for.
19      According to Article 7(1)(b) of Regulation 2017/1001, trade marks which are devoid of any distinctive character are not to be registered.
20      The distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation 2017/1001, means that that mark must serve to identify the goods in respect of which registration is sought as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings (see, to that effect, judgments of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 31, and of 8 October 2015, Rosian Express v OHIM (Shape of a games box), T‑547/13, EU:T:2015:769, paragraph 36 and the case-law cited).
21      In that regard, it should be recalled that the signs which are devoid of distinctive character are signs which are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the origin of the goods or services, thus enabling the consumer who acquired them to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (judgments of 27 February 2002, REWE-Zentral v OHIM (LITE), T‑79/00, EU:T:2002:42, paragraph 26, and of 20 November 2002, Bosch v OHIM (Kit Pro and Kit Super Pro), T‑79/01 and T‑86/01, EU:T:2002:279, paragraph 19).
22      The distinctive character of a mark must be assessed, first, by reference to the goods or services in respect of which registration has been sought and, secondly, by reference to the perception that the relevant public has of them (see judgment of 27 June 2017, Flamagas v EUIPO — MatMind (CLIPPER), T‑580/15, not published, EU:T:2017:433, paragraph 68 and the case-law cited). A minimum degree of distinctive character is, however, sufficient to render the absolute ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001 inapplicable (judgment of 14 March 2014, Lardini v OHIM (Affixing of a flower to a collar), T‑131/13, not published, EU:T:2014:129, paragraph 16).
23      According to settled case-law, the criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark (judgment of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 32; see also, judgment of 29 June 2018, hoechstmass Balzer v EUIPO (Shape of a tape measure case), T‑691/17, not published, EU:T:2018:394, paragraph 26 and the case-law cited).
24      Nonetheless, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same in the case of a three-dimensional mark, which consists of the appearance of the product itself, as it is in the case of a word or figurative mark, which consists of a sign unrelated to the appearance of the goods it identifies. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish the distinctiveness of such a three-dimensional mark than that of a word or figurative mark
(judgment of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 32; see also, judgment of 29 June 2018, Shape of a tape measure case, T‑691/17, not published, EU:T:2018:394, paragraph 27 and the case-law cited).
25      In accordance with the case-law, the more closely the shape for which registration as a trade mark is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation
2017/1001. In those circumstances, only a trade mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001 (judgments of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 39, and of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 33).
26      It follows that, where a three-dimensional mark is constituted by the shape of the product for which registration is sought, the mere fact that that shape is a ‘variant’ of a common shape of that type of product is not sufficient to establish that the mark is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001. It must always be determined whether such a mark permits the average consumer of that product, who is reasonably well informed and reasonably observant and circumspect, to distinguish the product concerned from those of other undertakings without conducting an analytical examination and without paying particular attention (see judgments of 7 May 2015, Voss of Norway v OHIM, C‑445/13 P, EU:C:2015:303, paragraph 92 and the case-law cited, and of
29 June 2018, Shape of a tape measure case, T‑691/17, not published, EU:T:2018:394, paragraph 29).
27      It is in the light of the principles set out in paragraphs 19 to 26 above that it must be examined whether, as the applicant submits, the Board of Appeal infringed Article 7(1)(b) of Regulation 2017/1001 in finding that the mark applied for was devoid of any distinctive character.
28      For the purposes of the present judgment, it is appropriate to examine
the second complaint first of all, then the first complaint, and then, finally, the third complaint.
–       The second complaint, alleging a failure to state reasons and an error of assessment in respect of the lack of distinctive character with regard to each of the goods and services covered
29      The Board of Appeal pointed out, in paragraph 7 of the contested decision, that the refused goods
in Classes 7, 11 and 21 were ‘essentially beverage-making machines, water and beverage dispensers and apparatus for water treatment and filtering’. In paragraphs 7 and 19 of the contested decision, the Board of Appeal also explained that the sign merely showed the shape of all those goods or the shape of the product for which parts and accessories are intended. As regards the services included in Classes 37 and 40, the Board of Appeal took the view, in paragraph 19 of the contested decision, that the sign is readily understood as showing the type of goods for which those services are rendered. Finally, the Board of Appeal concluded that since all the goods and services at issue are either faucets for dispensing water or closely related to such faucets, the applicant’s argument relating to the lack of distinctive character must be rejected for each of them.
30      The applicant claims that the Board of Appeal did not examine the distinctive character of the mark applied for in respect of each of the goods and services covered by that mark, which constitutes, in essence, a failure to state reasons and an error of assessment. In particular, the Board of Appeal merely made general assumptions by including all the goods in the same general category of ‘beverage-making machines, water and beverage dispensers and apparatus for water treatment and filtering’, and
concluded that a faucet has to be part of them without, however, taking into consideration the fact that the goods at issue are not ‘simple’ faucets integrated into a simple beverage dispenser.
31      EUIPO disputes the applicant’s arguments.
32      In that regard, it must be recalled that, in accordance with the first sentence of Article 94 of Regulation 2017/1001, decisions of EUIPO must state the reasons on which they are based. According to the settled case-law, that obligation has the same scope as the obligation laid down in the second paragraph of Article 296 TFEU, and its objective is to allow, first, those concerned to know the reasons
for the measure adopted in order to be able to defend their rights and, second, to enable the courts to review the legality of the decision (see judgment of 19 June 2018, Karl Storz v EUIPO (3D), T‑413/17, not published, EU:T:2018:356, paragraph 36 and the case-law cited).
33      In that respect, it should be stated, first, that an examination of the absolute grounds for refusal must be carried out in relation to each of the goods and services for which trade mark registration is sought and, second, that the decision of the competent authority refusing registration of a trade mark must, in principle, state reasons in respect of each of those goods or services (order of 18 March 2010, CFCMCEE v OHIM, C‑282/09 P, EU:C:2010:153, paragraph 37, and judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 29).
34      Where the same ground of refusal is given for a category or group of goods or services, the reasoning may be general for all of the goods or services concerned (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 30; see also, to that effect, judgment of 19 June 2018, 3D, T‑413/17, not published, EU:T:2018:356, paragraph 37).
35      However, such a power extends only to goods and services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services. The mere fact that the goods or services concerned are within the same class of the Nice Agreement is not sufficient for a finding that such homogeneity exists, as those classes often contain a large variety of goods and services which are not necessarily interlinked in a sufficiently direct and specific way (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 31; see also, to that effect, judgment of 19 June 2018, 3D, T‑413/17, not published, EU:T:2018:356, paragraph 38 and the case-law cited).
36      In order to determine whether the goods and services covered by an application for registration of an EU mark are interlinked in a sufficiently direct and specific way and can be placed in sufficiently homogenous categories and groups, for the purposes of the case-law cited in the previous paragraph, account must be taken of the fact that the objective of that exercise is to enable and facilitate the assessment in concreto of the question whether or not the mark concerned by the application for registration comes under one of the absolute grounds for refusal (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 32).
37      Lastly, the placement of the goods and services at issue in one or more groups or categories must be carried out in particular on the basis of the characteristics which are common to them and which are relevant for the analysis of whether or not a specific absolute ground for refusal may apply to the mark applied for in respect of those goods and services (judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 33).
38      In the present case, it must be noted, first of all, that the Board of Appeal, in paragraph 7 of the contested decision, took the view that the refused goods were essentially beverage-making machines, water and beverage dispensers and apparatus for water treatment and filtering, and that the sign therefore showed the shape of those goods.
39      That analysis by the Board of Appeal was repeated and developed in paragraphs 18 and 19 of the contested decision. First, as regards the goods in Classes 7, 11 and 21, the Board of Appeal explained that the goods at issue were connected to beverage-making machines, electric and non-electric, apparatus for preparing and dispensing water and beverages, for water treatment, water filtering and related parts and accessories. In that regard, it correctly observed that all those goods displayed a characteristic which was common to them, that is to say the standard shape of ‘a faucet for dispensing water and beverages’ which corresponded either to the shape of the actual goods or to the shape of goods for which parts and accessories (also included in Classes 7, 11, and 21) were intended. Second, in respect of the services in Classes 37 and 40, the Board of Appeal has also correctly determined that those services concerned the installation, maintenance, repair and rental of the aforementioned goods and that, as regards those services, the sign is readily understood as showing the kind of goods for which they are rendered.
40      It follows that the Board of Appeal did not err in finding, in essence, that the goods referred to had between them, as a result of the shape they have in common, which corresponded to the shape of the three-dimensional sign applied for, a sufficiently direct and specific link which made it possible to place all of them in the same category and in a single group of goods displaying sufficient homogeneity. Similarly, because the services at issue were all intrinsically linked to the goods, those services also displayed a common characteristic relevant in respect of the analysis of the mark’s distinctive character.
41      That finding cannot be invalidated by the applicant’s arguments. First, it is true that the goods at issue are not simple faucets integrated into a simple beverage dispenser and, some of those dispensers may in fact display other shapes which have no common features with the sign at issue. Nonetheless, the Board of Appeal’s analysis was based on the graphic representation of the product as it appears in the application for registration and on the assumption, which is not contested by the applicant, that the combination of a vertical structure with a downward facing head is typical of devices used for dispensing water or other liquids.
42      Second, the applicant’s argument, according to which the contested decision is incoherent, given that the sign was considered to be distinctive in respect of certain goods and services (such as beverage selling machines and the rental of water filters), but not distinctive for certain other similar goods
and services (such as beverage-making machines and rental of water filtering apparatus), does not in any way change the finding that the refused goods all displayed a characteristic which was common to them, that is to say the standard shape of ‘a faucet for dispensing water and beverages’ which corresponded either to the shape of the actual goods or to the shape of goods for which the parts and accessories were intended.
43      In those circumstances, it must also be held that, after having carried out an overall examination covering all of the goods and services at issue, the Board of Appeal was entitled to formulate a single conclusion based on the same ground for refusal relating to all the goods and services concerned, without infringing its obligation to state reasons.
–       The first complaint, alleging an error of assessment concerning the level of attention of the relevant public
44      The Board of Appeal stated, in paragraphs 7 and 8 of the contested decision, that the refused goods (in Classes 7, 11 and 21) — essentially beverage-making machines, water dispensers and apparatus for water treatment and filtering — were directed at the general public and that the same applied in respect of various services for which the application for registration of the mark had been rejected (in Classes 37 and
40) which concerned the installation, repair, maintenance and rental of those goods. The Board of Appeal did not,
however,
take an explicit position as regards the level of attention of that general public.
45      The applicant submits that the Board of Appeal erred when it held that the goods in question addressed the general public, which ‘implicitly means that the level of attention is normal’. According to the applicant, the goods at issue, which are neither ‘normal’ faucets for dispensing water nor ‘normal’ beverage dispensers, are principally directed at professional consumers, such as undertakings, restaurants, hotels, reception rooms which take special care, particularly regarding technical characteristics but also in respect of the appearance of those goods. While average consumers may also purchase them for their domestic use, as regards, in particular, exceptional goods, which are ‘much more’ expensive than a normal faucet, and are of a significant technical nature and whose appearance is important, those average consumers also display a ‘particularly high’ level of attention.
46      EUIPO contends that the goods and services covered by the mark applied for were directed both at professionals and the general public and that, therefore, the Board of Appeal correctly assessed the level of attention with regard to the general public, whose level of attention is average to high.
47      As a preliminary point, ‘the average consumers’ to whom the applicant refers in its pleadings should be understood as designating ‘the
public at large’ referred to by the Board of Appeal in the contested decision.
48      In the first place, as regards the relevant public, it must be stated that, contrary to EUIPO’s submissions, the applicant does not challenge the finding that the relevant public may also consist of the general public.
In the application, the applicant
states that ‘it [nevertheless] agrees with the Board [of Appeal] that the relevant public may be also the average consumer’. It thus confirms what it had clearly stated in the statement of grounds of the appeal during the administrative proceedings, that is to say that ‘[d]ue to the fact that the application claims goods in classes 7, 11 and 21 and services in classes 37 and 40, the average public is composed of the customers at large and also of professional customers’.
49      In the second place, as regards the level of attention of the general public, the applicant claims, in essence, that that level of attention is particularly high because, first, the goods at issue are not goods which are present in every household, are of a significant technical nature and are, therefore, exceptional and, second, that their price is particularly high compared to the price of faucets which merely allow water to flow without treating or enriching it (‘normal faucets’).
50      In the present case, first, it must be pointed out that, in the contested decision, the Board of Appeal did not determine the level of attention of the relevant public. It is evident from the application and the response that both the applicant and EUIPO agree in interpreting the contested decision as finding an average level of attention. Given the silence of the contested decision on that point, it must be assumed, as the parties have done, that the Board of Appeal assessed the distinctive character of the mark applied for from the point of view of the general public having an average level of attention (see, to that effect, judgment of 10 November 2016, Polo Club v EUIPO — Lifestyle Equities (POLO CLUB SAINT-TROPEZ HARAS DE GASSIN), T‑67/15, not published, EU:T:2016:657, paragraphs 28 and 29).
51      That interpretation cannot be invalidated by the fact that, in the response, EUIPO maintains that the Board of Appeal assessed the level of attention with regard to the general public as varying from ‘average to high’. It is not clear from the contested decision, or from the examiner’s decision that the level of attention of the general public is likely to vary, or, a fortiori, under what conditions and with regard to which categories of goods.
52      Second, as regards the alleged exceptional nature of the goods and services at issue, it must first of all be stated, as EUIPO indeed essentially accepted, that the goods and services at issue are not everyday consumer goods, but durable goods, whose purchase is neither daily nor necessarily regular (see, to that effect, judgment of 20 September 2018, Maico Holding v EUIPO — Eico (Eico), T‑668/17, not published, EU:T:2018:567, paragraph 24). However, it cannot be inferred from the mere fact that the goods at issue and the services which are associated with them are not part of all households, that the general public’s level of attention will be particularly high, as alleged by the applicant.
53      First of all, as EUIPO correctly submitted, many goods are covered by the mark applied for, which are relatively common and easily available in supermarkets, and which cannot be classified as being exceptional. Next, the applicant, even though it claims that those goods have a significant technical dimension, does not provide any evidence. Similarly, as regards the alleged significance of the appearance of the goods at issue, the applicant relies exclusively on the considerations capable of establishing the level of attention of a relevant public which consists of professionals, in particular with regard to the display of those goods in public places, such as hotels or restaurants. However, those considerations which arise from their display clearly do not have much bearing when assessing the level of attention of the general public, which will use them privately.
54      Third, in respect of whether the goods at issue are ‘much more expensive than a normal faucet’, the applicant merely compared the prices of two similar products with the prices of normal faucets, such as those included in the examiner’s decision of 29 June 2017. However, while it is conceivable that the goods at issue are generally more expensive than normal faucets, and that certain goods may be particularly costly, at the same time, it is necessary to note the wide range of prices of the goods at issue, as well as the range of marketing channels of those goods, including supermarkets, with the result that the goods at issue cannot be reduced to a subcategory of goods with an exclusive character put forward by the applicant (see, to that effect, judgment of 14 December 2017, N & C Franchise v EUIPO — Eschenbach Optik (OJO sunglasses), T‑792/16, not published, EU:T:2017:908, paragraph 26). In addition, it must be observed that the applicant does not at any time indicate the price of its own goods falling within the scope of the goods covered by its application for registration.
55      In light of the above, contrary to the applicant’s claims, the Board of Appeal did not err in not finding a particularly high level of attention for the relevant public.
56      Moreover, it must be noted that,
in any event, and even if
the level of attention of the relevant public is particularly high, it is clear from the case-law that the fact that the relevant public has a high level of attention does not automatically confer a sufficiently distinctive character on a mark (see, to that effect, judgment of 31 January 2017, Coesia v EUIPO (Depiction of a circular shape formed by two oblique, symmetrical red lines), T‑130/16, not published, EU:T:2017:44, paragraphs 20 to 22 and the case-law cited). In the present case, the applicant simply maintains, in that regard, that the mark at issue displays specific and arbitrary characteristics likely to retain the attention of the general public with a high level of attention, that is to say the specific shape of the product, which brings to mind the shape of a cobra and has a futuristic design. However, as will be shown in paragraphs 62 and 63 below, such an unsubstantiated statement, in particular as regards the manner in which that shape is different from other shapes on the market in respect of the goods concerned which look more like normal faucets, cannot be accepted, especially given that, as EUIPO claims, it cannot be ruled out that a public displaying a particularly high level of attention would be fully aware of all innovative shapes used for the goods at issue, with the result that, in the eyes of that public, the sign at issue does not depart significantly from the norm of the sector (see, in that regard, the case-law cited in paragraph 25 above).
–       The third complaint, alleging an error of assessment concerning the distinctive character of the three-dimensional sign applied for
57      In the context of the third complaint, the applicant claims, in essence, that the Board of Appeal
erred in finding that the sign applied for had the simple shape of a typical device used for dispensing water on the ground that its characteristics were very common for the usual beverage apparatus. According to the applicant, that sign is perceived by the relevant public as a fanciful and distinctive sign on account of its specific characteristics which are not commonly used in commerce.
58      More specifically, according to the applicant, first, the sign applied for does not combine a simple vertical structure with a simple downward facing head, as do the goods depicted by EUIPO as examples of similar goods. The sign applied for has sufficiently specific and arbitrary characteristics to retain the attention of average consumers with a high level of attention and who will be aware of the specific, even futuristic, shape of the goods at issue. In that regard, on the basis of a comparison between the goods covered by the application and other similar goods allegedly commonly used in commerce, the applicant states that the sign at issue is of a different, even unusual, shape for any faucet and in particular for beverage dispensers.
59      Second, the applicant claims that the goods at issue are intended to be placed on a table and, therefore, that the upper part of the sign will visually be very striking. The Board of Appeal thus committed an error in maintaining that it was unlikely that consumers see the top of the sign. Additionally, the upper part of the sign contains the command structure, which is integrated into a fanciful drop with horizontal veins and a peculiar design, which is certainly not usually integrated into faucets.
60      EUIPO disputes the applicant’s arguments.
61      In the present case, in the light of the case-law cited in paragraphs 24 to 26 above, it must be observed, first of all, that the Board of Appeal described the graphic representation of the mark applied for as consisting, first, of a slim vertical structure placed on a round platform covered with horizontal lines (the drainage channels) and, second, of a head with a round top and tapered bottom (the control element), affixed to the slight curved top of the structure. In addition, it correctly found that the combination of the vertical structure with a downward facing head is typical of a device used for dispensing water and other liquids (see paragraphs 7 and 15 of the contested decision). It is common knowledge that, as the Board of Appeal concluded, every faucet requires a control element in order to dispense water or a drink into the vessel and to enable the liquid to be poured into that vessel during distribution. Thus, the Board of Appeal did not commit any error of assessment in finding that the relevant public would readily understand that the round device represents the control element for operating the faucet and that the horizontal lines of the platform are small drainage channels.
62      Next, as regards the comparison with other similar goods claimed by the applicant, it should be recalled, first of all, that, as indicated in paragraph 16 above, apart from the images in paragraph 53 of the application, the images of similar goods displayed by the applicant in the application do not appear in the administrative file of the proceedings before EUIPO and, on that basis, are inadmissible. Therefore, the applicant’s argument, according to which the sign is different in its shape from similar goods, can only be assessed in relation to the images in paragraph 53 of the application. However, the fact remains that those goods, and in particular the second and third image in paragraph 53, display similarities as regards their shape. Like the sign applied for, those two products contain a vertical structure as well as a downward facing head which suggests that the shape of the mark applied for could serve as a variation of one of the usual shapes of such goods, which does not depart from the norm.
63      Lastly, as regards the alleged fanciful or futuristic shape, it must be noted, first, that the Board of Appeal correctly took the view, which, moreover, is not disputed by the applicant, that the icons which are visible on the control element are not discernible in the representation filed, and, second, that the consumer cannot be expected to recognise that the shape of the vertical structure is supposed to be reminiscent of a stem, that the head resembles an inverted cone or that the top view could be perceived as a fanciful drop (see paragraph 16 of the contested decision). As the Board of Appeal asserts in paragraph 17 of the contested decision, consumers certainly know that not all water and beverage dispensers are identical and that they may be offered in different designs, colour and sizes. However, they will recognise those different designs as mere variations of the standard shape to be found in all water and beverage dispensers of the same type. In accordance with the case-law recalled in paragraphs 24 to 26 above, it is not sufficient that the shape covered by the mark applied for differs, as regards certain design features of the product, from other faucets for dispensing water available on the market, it is also necessary for those features
to be sufficiently marked so as to enable consumers to distinguish the faucet offered under the intended sign from those of other undertakings on the sole basis of its shape.
64      In the light of the foregoing, it must be concluded that it is by analysing all of the elements of the sign and without committing an error of assessment, that the Board of Appeal found, in paragraph 17 of the contested decision, that, taken as a whole, the sign at issue contained no element which departs significantly from the standard shape of water and beverage dispensers.
65      The Board of Appeal was therefore correct in finding that the trade mark at issue could not be perceived as distinctive within the meaning of Article 7(1)(b) of Regulation 2017/1001.
66      In the light of the foregoing, the application must be dismissed in its entirety.
Costs
67      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.
68      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 (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Brita GmbH to pay the costs.
Kanninen
Schwarcz
Iliopoulos
Delivered in open court in Luxembourg on 19 June 2019.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.