JUDGMENT OF THE GENERAL COURT (Third Chamber)
12 July 2023 (*)
(EU trade mark – International registration designating the European Union – Word mark BACK-2-NATURE – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001)
In Case T‑772/22,
Fibrecycle Pty Ltd, established in Helensvale (Australia), represented by T. Stein, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, P. Škvařilová-Pelzl and G. Steinfatt (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Fibrecycle Pty Ltd, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 October 2022 (Case R 1699/2020-2) (‘the contested decision’).
Background to the dispute
2        On 26 June 2019, the applicant obtained the international registration designating the European Union with number 148 655 from the International Bureau of the World Intellectual Property Organization (WIPO). That international registration was notified to EUIPO on 5 September 2019 pursuant to the fourth sentence of Article 3(4) of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22), as amended on 12 November 2007. It relates to the word sign BACK-2-NATURE.
3        The goods in respect of which protection was sought are in Classes 3, 5, 16 and 21 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 3: ‘Non-medicated grooming preparations in the nature of pet shampoo and conditioner; deodorizers for pets’;
–        Class 5: ‘Deodorizing preparations for pet litter boxes’;
–        Class 16: ‘Plastic bags for disposing of pet waste’;
–        Class 21: ‘Grooming tools for pets in the nature of grooming brushes and combs; pet litter boxes; pet litter box liners’.
4        By decision of 2 July 2020, the examiner refused protection of the international registration under Article 7(1)(b) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) in respect of all of the goods referred to in paragraph 3 above.
5        On 18 August 2020, the applicant filed a notice of appeal with EUIPO against the examiner’s decision.
6        By decision of the Second Board of Appeal of EUIPO of 3 March 2021 (Case R 1699/2020-2), that appeal was dismissed.
7        By document lodged at the Registry of the General Court on 7 May 2021, the applicant brought an action registered under number T‑248/21 for annulment of that decision.
8        By document lodged at the Court Registry on 20 January 2022, EUIPO, first, informed the General Court of the decision of its Second Board of Appeal of 13 October 2021 revoking the decision of 3 March 2021 and of the fact that that decision had become final and, second, requested that the Court conclude, in accordance with Article 130(2) of its Rules of Procedure, that, since the present action had become devoid of purpose, there was no longer any need to adjudicate on it.
9        It was apparent from that revocation decision that the decision of the Second Board of Appeal of EUIPO of 3 March 2021 was vitiated by an obvious procedural error in so far as it had been taken by a single member, pursuant to Article 165(2) and (5) of Regulation 2017/1001, Article 36 of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1) and Article 7 of Decision 2020-7 of the Presidium of the Boards of Appeal on the organisation of the Boards, even though the Board of Appeal had not concluded that the appeal was manifestly unfounded within the meaning of Article 36(1)(g) of Delegated Regulation 2018/625.
10      By order of 5 May 2022, Fibrecycle v EUIPO (BACK-2-NATURE) (T‑248/21, not published, EU:T:2022:285), the Court held that there was no longer any need to adjudicate on that action.
11      The case was reassigned to the Second Board of Appeal under reference R 1699/2020-2.
12      By the contested decision, the Board of Appeal rejected the appeal on the ground that the international registration at issue was devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001. It found, inter alia, that it would be understood by the relevant public as an advertising slogan, not as an indication of commercial origin of the goods in question.
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
14      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in case an oral hearing is convened.
Law
15      In support of its action, the applicant puts forward a single plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001.
16      For a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the goods in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings (see judgment of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 33 and the case-law cited). That distinctive character must be assessed, first, by reference to the goods or services in respect of which registration of the trade mark has been applied for and, second, by reference to its perception by the relevant public (see judgment of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 35 and the case-law cited).
17      The applicant does not dispute the Board of Appeal’s findings that, having regard to the goods covered by the international registration at issue and the English words of which it is composed, the relevant public is the English-speaking public within the European Union who own or care for pets, of their own accord or as professionals, and that the public’s level of attention is average as far as the general public is concerned and higher as far as professionals are concerned. The parties also agree that the expression ‘back-2-nature’ will be perceived by that English-speaking public as ‘back-to-nature’, which can mean a ‘return to a simpler life’.
18      As regards marks made up of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded by virtue of such use (judgments of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 35; of 22 March 2017, Hoffmann v EUIPO (Genius), T‑425/16, not published, EU:T:2017:199, paragraph 26; and of 1 February 2023, Groschopp v EUIPO (Sustainability through Quality), T‑253/22, not published, EU:T:2023:29, paragraph 22).
19      As regards the assessment of the distinctive character of such marks, the Court of Justice has already held that it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign (judgments of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 36, and of 22 March 2017, Genius, T‑425/16, not published, EU:T:2017:199, paragraph 27). Accordingly, a minimum degree of distinctive character is sufficient to render the absolute ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001 inapplicable (see judgment of 6 October 2021, Kondyterska korporatsiia ‘Roshen’ v EUIPO – Krasnyj Octyabr (Representation of a lobster), T‑254/20, not published, EU:T:2021:650, paragraph 116 and the case-law cited; judgment of 1 February 2023, Sustainability through Quality, T‑253/22, not published, EU:T:2023:29, paragraph 23).
20      However, it is apparent from case-law that, while the criteria for the assessment of distinctive character are the same for different categories of marks, the relevant public’s perception is not necessarily the same in relation to each of those categories and it could therefore prove more difficult to establish distinctiveness in relation to marks of certain categories as compared with marks of other categories (see judgment of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 37 and the case-law cited; judgment of 25 May 2016, U-R LAB v EUIPO (THE DINING EXPERIENCE), T‑422/15 and T‑423/15, not published, EU:T:2016:314, paragraph 47). It is also necessary to take account of the fact that average consumers are not in the habit of making assumptions about the origin of goods and services on the basis of slogans (see judgment of 25 May 2016, THE DINING EXPERIENCE, T‑422/15 and T‑423/15, not published, EU:T:2016:314, paragraph 78 and the case-law cited; judgment of 1 February 2023, Sustainability through Quality, T‑253/22, not published, EU:T:2023:29, paragraph 24).
21      Although all marks made up of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks convey by definition, to a greater or lesser extent, an objective message, even a simple one, they are nevertheless still capable of indicating to the consumer the commercial origin of the goods or services in question. That can be the position where those marks can have a number of meanings, constitute a play on words or be perceived as fanciful, surprising and unexpected and, in that way, be easily remembered, so that they are not merely an ordinary advertising message, but possess a certain originality or resonance, require at least some interpretation by the relevant public, or set off a cognitive process in the minds of the public concerned (judgments of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraphs 47, 56 and 57; of 22 March 2017, Genius, T‑425/16, not published, EU:T:2017:199, paragraph 28; and of 1 February 2023, Sustainability through Quality, T‑253/22, not published, EU:T:2023:29, paragraph 25).
22      In so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood – perhaps even primarily understood – as a promotional formula has no bearing on its distinctive character (see, to that effect, judgments of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 45; of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 30; and of 1 February 2023, Sustainability through Quality, T‑253/22, not published, EU:T:2023:29, paragraph 26).
23      However, a mark consisting of an advertising slogan must be regarded as being devoid of distinctive character if it is liable to be perceived by the relevant public as a mere promotional formula (judgments of 6 June 2013, Interroll v OHIM (Inspired by efficiency), T‑126/12, not published, EU:T:2013:303, paragraph 25, and of 22 March 2017, Genius, T‑425/16, not published, EU:T:2017:199, paragraph 29). More specifically, this applies where a sign indicates to the consumer that a characteristic of the goods or services covered by that sign, whilst not specific, comes from promotional or advertising information which the relevant public will perceive as such, rather than as an indication of the commercial origin of the goods or services (judgments of 17 March 2016, Mudhook Marketing v OHIM (IPVanish), T‑78/15, not published, EU:T:2016:155, paragraph 25; of 14 July 2016, Volkswagen v EUIPO (ConnectedWork), T‑491/15, not published, EU:T:2016:407, paragraph 32; and of 1 February 2023, Sustainability through Quality, T‑253/22, not published, EU:T:2023:29, paragraph 27).
24      The Board of Appeal considered that the meaning of ‘return to a simpler way of life’ was ‘nonsensical’ for the goods in question, with the result that the relevant public would not make that link with what the applicant calls ‘a way of life that eschews consumerism’. However, that public would perceive the sign at issue as conveying a clear promotional message that merely serves to highlight positive aspects of the goods in question. The examiner also stressed that the word ‘nature’ led consumers to understand that the goods are ‘natural’, as opposed to processed or chemical goods.
25      Contrary to the applicant’s claim, although nature can be defined as all the animals, plants and other things in the world that are not made by people and all the events and processes that are not caused by people, this does not mean, according to the Board of Appeal, that the word ‘nature’ cannot describe a characteristic of goods made by people, namely that the goods contain natural ingredients or materials.
26      In the Board of Appeal’s view, when encountering the expression ‘back-2-nature’ as a whole and in respect of goods in Classes 3 and 5, a significant proportion of the relevant public will immediately perceive the sign at issue as conveying the message that those goods contain natural ingredients as opposed to chemicals.
27      Regarding the goods in Class 16, the Board of Appeal agrees with the applicant that plastic bags are capable of harming the environment. However, according to the Board of Appeal, when perceiving the expression ‘back-2-nature’ in relation to the plastic bags at issue, a significant proportion of the relevant public will immediately associate those goods with biodegradable plastic bags produced from natural origins, such as plants, animals, or microorganisms, which are presumed to be more environmentally friendly.
28      As for the goods in Class 21, according to the Board of Appeal, a significant proportion of the relevant public will immediately perceive the international registration at issue as conveying the message that those goods contain natural materials as opposed to artificial materials.
29      Due to growing concerns over the environment, a significant proportion of the public seeks out goods that are composed of or contain natural ingredients or materials. Accordingly, all of the goods in question may, in the Board of Appeal’s view, contain ingredients or materials of natural origin, with the result that a significant proportion of the public concerned will associate immediately and unequivocally the expression ‘back-2-nature’ with the message that the applicant, by means of those goods, is returning to a past in which goods were made that did not harm the environment.
30      Beyond that promotional information, the relevant public will not tend to perceive any particular indication of commercial origin in the sign at issue.
31      The Board of Appeal therefore found, in essence, that the international registration is incapable of performing the essential function of a mark.
32      The applicant submits that the contested decision is vitiated by two errors.
33      In the first place, contrary to what is allegedly apparent from paragraph 40 of the contested decision, the applicant submits that it did not argue before the Board of Appeal that the meaning of ‘return to a simpler way of life’ is ‘nonsensical’ for the goods concerned, but that the sole meaning conveyed by the expression ‘back-2-nature’, with regard to those goods, was a simpler way of life, which amounts to a movement away from materialism and the stress that modern life creates. Accordingly, the goods concerned, which are all examples of consumerism, have no place in a simpler way of life. A way of life that eschews consumerism cannot be said exclusively to convey a promotional message for those goods and it is ‘nonsensical’ to suggest otherwise. In those circumstances, the applicant’s reference to ‘nonsensical’ related to the alleged laudatory nature of the mark at issue, not the meaning conveyed by the mark, namely ‘a simpler way of life’. The Board of Appeal’s finding was therefore incorrect and led it to misunderstand the applicant’s arguments.
34      In the second place, the applicant submits that the Board of Appeal examined the meaning of the term ‘nature’ in itself and in relation to the goods concerned but, despite the use of the wording ‘as a whole’ in the contested decision, it did not, or did not properly, consider how English-speaking consumers of those goods would perceive the meaning of ‘back-2-nature’ as a whole.
35      In order to support its finding that the term ‘nature’ would lead consumers to understand that the goods are ‘natural’, as opposed to processed or chemical goods, the Board of Appeal relied solely on the judgment of 20 September 2019, Multifit v EUIPO (real nature) (T‑458/18, not published, EU:T:2019:634). However, that judgment cannot support such a finding, based on the fact that the term ‘real’, together with the term ‘nature’, served to imbue the mark at issue with its meaning connected to ‘natural materials’, in so far as ‘real’ is understood as meaning ‘genuine’, with the result that the relevant public would have been led to understand that the goods and services covered by that mark were ‘genuine’ and therefore ‘natural’. Assessed as a whole, the applicant argues that the expression ‘back-2-nature’ does not suggest that the goods in question are ‘genuine’ and therefore made from natural materials. It is therefore not laudatory.
36      According to the applicant, the Board of Appeal should have instead drawn on the decision of the Fourth Board of Appeal of 29 October 2020 in Case R 934/2020-4 (INSPIRED BY NATURE), according to which the expression ‘inspired by nature’ would be understood by the relevant public as a source of ideas and motivation originating from nature, plants and natural phenomena in particular. The word ‘nature’ was taken to mean the natural world and the expression ‘inspired by nature’, as a whole and in relation to the goods in question, merely indicated that the source of inspiration for the design and manufacture of the goods was nature, not that the goods in question were manufactured from natural materials. Thus, in the two signs INSPIRED BY NATURE and BACK-2-NATURE, taken as a whole, the term ‘nature’ stands as a reference to the natural world around us, not to natural ingredients or materials.
37      The international registration at issue merely invites English-speaking consumers of the goods concerned to return to a simple or simpler way of life provided by nature itself.
38      Adopting a simpler way of life amounts to paring back consumption and ‘doing with less’. The relevant public, imbued with an eco-minimalist understanding of the expression ‘back to nature’, will therefore not perceive the mark concerned in relation to the goods in question as a mere promotional formula, but as an invitation not to purchase those goods on the basis that they are the very antithesis of a simpler way of life. That relevant public, in seeking a back-to-nature lifestyle, would not contemplate purchasing goods such as cat litter boxes, deodoriser for dogs or rabbit shampoo, as those goods are the essence of consumerism.
39      The applicant submits that, faced with a meaning that invites the relevant public to be eco-minimalist, the mark at issue must set off a cognitive process in which that public questions what role the goods might play in a simpler way of life. The relevant public would therefore find the international registration, when encountered in relation to the goods in respect of which protection is sought – each of which is the epitome of consumerism – both surprising and unexpected.
40      According to the applicant, the call to an eco-minimalist life inspired by the international registration at issue is juxtaposed with the image of the consumerist seeking to purchase the goods in question, and it is that powerful juxtaposition that endows that international registration with inherent distinctive character. The relevant public would be sufficiently surprised by the non-laudatory reference to a life that eschews consumer goods so as to commit easily and immediately the international registration to memory as a mark that is distinctive in respect of the goods it covers.
41      EUIPO disputes the applicant’s arguments.
42      As regards the applicant’s first complaint, the Board of Appeal itself reached the conclusion in paragraph 40 of the contested decision that the international registration at issue as a ‘return to a simpler way of life’ is devoid of meaning for the goods in question. Accordingly, even if the Board of Appeal was incorrect to maintain that the applicant had argued that point, this had no bearing on its subsequent reasoning and the result of its analysis.
43      In any event, admittedly, it is apparent from paragraphs 3.1 to 3.4 of the applicant’s observations setting out the reasoning for its action before EUIPO that the applicant stated that it is ‘nonsensical’ to suggest that the expression ‘back to nature’ is laudatory in relation to the goods concerned. However, in order to reach that conclusion, it argued that that expression denotes a simpler way of life, away from, inter alia, materialism. However, the goods concerned have no place in such a way of life (see paragraph 3.3 of the applicant’s observations setting out the reasoning for its action before EUIPO).
44      Accordingly, by stating in paragraph 40 of the contested decision that ‘return to a simpler way of life’ was devoid of meaning for the goods in question, the Board of Appeal in actual fact approved the applicant’s argument in paragraph 3.3 of its observations setting out the reasoning for its action before EUIPO.
45      In those circumstances, the applicant’s argument that the Board of Appeal misunderstood or even distorted its arguments is not borne out by the facts.
46      The first complaint must therefore be rejected.
47      As far as the second complaint is concerned, first of all, it is appropriate to reject the applicant’s claim that the Board of Appeal focused in its analysis on the fact that the term ‘nature’ is distinctive in relation to the goods concerned without examining the international registration at issue as a whole.
48      In paragraph 41 of the contested decision, the Board of Appeal stated, in essence, that the relevant public will attribute to the word combination ‘back to nature’, not to the word ‘nature’ alone, a meaning conveying a clear promotional message that merely serves to highlight the positive aspects of all of the goods in question. In paragraphs 44 to 46 of the contested decision, the Board of Appeal examined the sign at issue in relation to the specific classes of the goods concerned and, in paragraphs 47 and 48 thereof, it found, in essence, that, since the goods concerned may contain ingredients or materials of natural origin, the public concerned will associate immediately and unequivocally the contested sign with the message that the applicant, by means of its goods, is returning to a past in which goods were made that did not harm the environment. According to the Board of Appeal, the relevant public will therefore not tend to perceive the commercial origin in the sign, beyond the promotional information highlighting the positive aspects of the goods concerned, namely that those goods are natural and environmentally friendly. It follows, according to the Board of Appeal, that the international registration at issue extols the merits of the goods which it covers, in so far as it seeks to convince the consumer that the goods consist of natural ingredients or materials and makes it possible for them to make an eco-friendly choice.
49      The Board of Appeal did therefore in fact analyse the distinctive character of the international registration as a whole, and explained clearly why the relevant public would not associate it with a designation of the commercial origin of the goods it designates, but with promotional information. More specifically, the reference in paragraph 47 of the contested decision to returning to a past in which goods were made that did not harm the environment leaves no doubt in that regard.
50      That finding is not called into question by the fact that the Board of Appeal, in paragraphs 41 and 43 of the contested decision, examined the relevant public’s understanding of the word ‘nature’ in relation to the goods concerned. As argued correctly by EUIPO, first, it did no more than respond to the applicant’s arguments that had been submitted to it. Second, the obligation to analyse the overall impression produced by a sign is not incompatible with an examination of each of its elements in turn (judgments of 30 June 2005, Eurocermex v OHIM, C‑286/04 P, EU:C:2005:422, paragraphs 22 and 23, and of 19 September 2001, Procter & Gamble v OHIM (Square tablet, white with green speckles and pale green), T‑118/00, EU:T:2001:226, paragraph 59).
51      Next, it is appropriate to reject the applicant’s argument that the reference in paragraph 43 of the contested decision to the judgment of 20 September 2019, real nature (T‑458/18, not published, EU:T:2019:634, paragraphs 25 and 26), does not support the finding in paragraphs 41 and 47 of that decision that, in essence, the goods concerned are natural or may contain ingredients or materials of natural origin. Not only did the case which gave rise to that judgment concern, inter alia, goods for animals, as in the present case, but also the words ‘back to’ at the beginning of the international registration at issue have a relationship with the word ‘nature’, which is analogous to the relationship that the word ‘real’ has with that word in that judgment. The words ‘back to’ which, in themselves, have no particular meaning in relation to the goods concerned, will draw the attention of the relevant consumers to the word ‘nature’.
52      Last, contrary to the applicant’s argument, the Board of Appeal was correct to find, first, that the expression ‘back to nature’ as a return to a simpler way of life was devoid of meaning for the relevant public with regard to the goods in question, with the result that the relevant public will not make that link with what the applicant calls ‘a way of life that eschews consumerism’ and, second, that that public will immediately and unequivocally associate that expression with the message that the applicant, by means of its goods, is returning to a past in which goods were made that did not harm the environment.
53      As is apparent from the dictionary extracts provided by the applicant, the expression ‘back to nature’ can, in itself, be understood as an invitation to return to a simple or simpler way of life. However, when encountering that expression in relation to the goods concerned, the relevant public cannot attribute that meaning to it, since it invites that public, in actual fact, not to purchase those goods. The relevant public will not understand a mark as a message addressed to potential consumers discouraging them from purchasing the goods in question.
54      In that context, it must be borne in mind that since the relevant public is not very attentive if a sign does not immediately indicate to it the origin or destination of the object of its intended purchase, but rather gives it purely promotional and abstract information, it will not take the time either to enquire into the expression’s various possible functions, or to memorise it as a trade mark (see judgment of 1 February 2023, Sustainability through Quality, T‑253/22, not published, EU:T:2023:29, paragraph 47 and the case-law cited). Moreover, during the short space of time in which the consumer is faced with a mark, he or she perceives the meaning of the terms intuitively rather than in a linguistically scientific way (see judgment of 18 May 2017, Sabre GLBL v EUIPO (INSTASITE), T‑375/16, not published, EU:T:2017:348, paragraph 58 and the case-law cited).
55      The relevant public will therefore understand the sign at issue in the most obvious way, that is, as a positive message on the qualities of the goods concerned.
56      As a whole, for that public, the international registration is not capable, in relation to the goods concerned, of having several meanings, it is not a play on words nor is it fanciful. It is a clear indication to that public that the goods in question contain or may contain natural ingredients or materials and are environmentally friendly. The relevant public would not imagine, in relation to the goods in question – that is, pet hygiene and care products, to which the applicant itself refers as examples of consumerism – that the sign at issue invites it to adopt a simpler way of life. The international registration is therefore not original or resonant and does not set off a cognitive process in the minds of that public. It will therefore be perceived only as a mere promotional formula extolling the qualities of the goods concerned, not as a designation of their commercial origin.
57      The second complaint must therefore be rejected and, consequently, the action as a whole must be dismissed.
Costs
58      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
59      In the present case, even though the applicant has been unsuccessful, EUIPO sought an order that it pay the costs only in the event of the parties being summoned to attend a hearing. It is appropriate, since no hearing was convened, to decide that each party must bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders the parties to bear their own costs.
Schalin
Škvařilová-Pelzl
Steinfatt
Delivered in open court in Luxembourg on 12 July 2023.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.