ORDER OF THE GENERAL COURT (Eighth Chamber)
8 May 2019 (*)
(EU trade mark — Application for EU figurative mark getsmarter — Mark consisting of an advertising slogan — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) — No distinctive character acquired through use — Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001) — Action manifestly lacking any foundation in law)
In Case T‑473/18,
Getsmarter Online Ltd, established in London (United Kingdom), represented by I. Silcock, Barrister,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by G. Schneider, A. Folliard-Monguiral and H. O’Neill, acting as Agents,
defendant,
ACTION brought against the decision of the First Board of Appeal of EUIPO of 10 May 2018 (Case R 2632/2017-1), relating to an application for registration of the figurative sign getsmarter as a European Union trade mark,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, R. Barents (Rapporteur) and J. Passer, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 27 July 2018,
having regard to the response lodged at the Court Registry on 16 November 2018,
makes the following
Order
Background to the dispute
1        On 7 April 2017, the applicant, Getsmarter Online Ltd, 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 following figurative sign:
3        The goods and services in respect of which registration was sought are in Classes 9, 41 and 42 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:
–        Class 9: ‘Computer software; computer programmes; downloadable publications; electronic applications’;
–        Class 41: ‘Entertainment; sporting and cultural activities; content design; arranging and conducting of colloquiums, competitions, events, conferences, exhibitions, performances, seminars, shows, symposiums, workshops and expeditions; correspondence courses; provision of outdoor and recreational facilities; media centres and lending libraries accessed through the internet; film production; reporting services; photography services; practical demonstrations; production of radio and television programs; publishing services, including print, electronic and online publishing; scriptwriting services; providing electronic media or information over communication networks in relation to education, career and workplace skills; information, advisory and consultancy services relating to the aforementioned’;
–        Class 42: ‘Design, development, installation, maintenance and rental of software; Software as a Service (SaaS); development of computer-based networks; creating on-line virtual communities for registered users to organise groups and events, participate in discussions, and engage in social, business and community networking; hosting, creating and maintaining software applications and web sites; digital imaging services; information, advisory and consultancy services relating to the aforementioned’.
4        The applicant claimed the following colours: pink, black and white.
5        By letter of 24 April 2017, the examiner informed the applicant that the mark sought was not eligible for registration, on the ground that it did not fulfil the conditions laid down in Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001). He stated, in particular, that that mark would be perceived merely as a promotional laudatory message.
6        By letter of 25 August 2017, the applicant maintained its application and added that, in any event, the mark applied for had acquired distinctive character in consequence of the use which had been made of it, within the meaning of Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001).
7        By decision of 13 October 2017, the examiner rejected the trade mark application, on the ground, first, that the mark was caught by the ground for refusal laid down in Article 7(1)(b) and 7(2) of Regulation No 207/2009 (now Article 7(2) of Regulation 2017/1001), as the relevant public would perceive the expression ‘getsmarter’ as a promotional laudatory message. Second, the examiner took the view that the mark applied for had not acquired distinctive character in consequence of the use which had been made of it, within the meaning of Article 7(3) of that regulation.
8        On 13 December 2017, the applicant filed a notice of appeal with EUIPO against the examiner’s decision, pursuant to Articles 58 to 60 of Regulation No 207/2009 (now Articles 66 to 68 of Regulation 2017/1001).
9        By decision of 10 May 2018 (‘the contested decision’), the First Board of Appeal dismissed the appeal. In paragraph 12 of the contested decision, it essentially held that the reference consumer was the general public, in particular students and other private parties wishing to dedicate themselves to further education, as well as the specialised public of universities and businesses offering educational courses. The Board of Appeal took the view, in paragraph 14 of the contested decision, that the relevant public would see the mark applied for as a description of the fact that the goods and services purchased would help the purchaser to become smarter, clever, more educated or intelligent and, in paragraph 16 of that decision, that the figurative element underlined and illustrated the academic context, with the result that it did not add any distinctive element to the mark applied for. From this the Board of Appeal concluded, in paragraph 17 of the contested decision, that the promotional character covered all the goods and services covered by the trade mark application.
10      As for the claim that the mark applied for had acquired distinctiveness within the meaning of Article 7(3) of Regulation No 207/2009, the Board of Appeal found, in paragraph 42 of the contested decision, after having set out the evidence submitted for its consideration, that a global assessment supported the conclusion that the evidence did not demonstrate that a significant proportion of the relevant public would identify the sign as a trade mark in consequence of the use which had been made of it by the applicant.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
13      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
14      In the present case, the Court considers that it has sufficient information from the documents in the file before it and has decided, pursuant to Article 126 of the Rules of Procedure, to give its decision without taking further steps in the proceedings, even though one of the parties — to wit, the applicant — has requested a hearing (see, to that effect, orders of 17 June 2016, Hako v EUIPO (SCRUBMASTER), T‑629/15, not published, EU:T:2016:384, paragraph 10 and the case-law cited, and of 11 December 2018, Hamburg Beer Company v EUIPO (Hamburg Beer Company), T‑6/18, not published, EU:T:2018:981, paragraph 11).
15      In support of the action, the applicant relies on two pleas in law, the first alleging infringement of Article 7(1)(b) and 7(2) of Regulation No 207/2009, the second alleging infringement of Article 7(3) of that regulation.
The first plea in law, alleging infringement of Article 7(1)(b) and 7(2) of Regulation No 207/2009
16      In its first plea in law, the applicant disputes, in essence, the Board of Appeal’s analysis concluding that the mark applied for is not distinctive.
17      Article 7(1)(b) of Regulation No 207/2009 provides that trade marks which are devoid of distinctive character cannot be registered. Article 7(2) of that regulation provides that paragraph 1 of that article is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.
18      In order for a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009, it 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 judgments of 20 October 2011, Freixenet v OHIM, C‑344/10 P and C‑345/10 P, EU:C:2011:680, paragraph 42 and the case-law cited, and of 25 September 2015, August Storck v OHIM (2good), T‑366/14, not published, EU:T:2015:697, paragraph 12 and the case-law cited).
19      In that respect, it should be recalled that signs which are devoid of distinctive character referred to in Article 7(1)(b) of Regulation No 207/2009 are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the origin of the goods and services, thus enabling the consumer who acquired them to repeat the experience, if it proves positive, or to avoid it, if it proves negative, on the occasion of a subsequent acquisition. Such is the case, in particular, with regard to signs which are commonly used in the marketing of the goods or services concerned (see judgment of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 13 and the case-law cited).
20      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, second, by reference to the perception of the relevant public (see judgment of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 14 and the case-law cited).
21      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 that use (judgments of 21 October 2004, OHIM v Erpo Möbelwerk, C‑64/02 P, EU:C:2004:645, paragraph 41, of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 35, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 15).
22      As regards the assessment of the distinctive character of such marks, it follows from settled case-law that it is inappropriate to apply to those marks criteria which are stricter than those applicable to other types of sign (judgments of 21 October 2004, OHIM v Erpo Möbelwerk, C‑64/02 P, EU:C:2004:645, paragraphs 32 and 44, of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 36, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 16).
23      It has thus been held that an advertising slogan cannot be required to display ‘imaginativeness’ or even ‘conceptual tension which would create surprise and so make a striking impression’ in order to have the minimal level of distinctiveness required under Article 7(1)(b) of Regulation No 207/2009 (judgments of 21 October 2004, OHIM v Erpo Möbelwerk, C‑64/02 P, EU:C:2004:645, paragraphs 32 and 44, of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 39, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 17).
24      It follows that a trade 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. By contrast, such a mark must be recognised as having distinctive character if, in addition to its promotional function, it may be perceived immediately by the relevant public as an indication of the commercial origin of the goods and services concerned (order of 12 June 2014, Delphi Technologies v OHIM, C‑448/13 P, not published, EU:C:2014:1746, paragraph 37; judgments of 11 December 2012, Fomanu v OHIM (Qualität hat Zukunft), T‑22/12, not published, EU:T:2012:663, paragraph 22, of 6 June 2013, Interroll v OHIM (Inspired by efficiency), T‑126/12, not published, EU:T:2013:303, paragraph 24, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 18).
25      In the first place, it should be observed that, in view of the goods and services in question, the Board of Appeal did not err in finding, in paragraph 12 of the contested decision, that the relevant consumer consists, on the one hand, of the general public, in particular students and other parties wishing to dedicate themselves to further education, and, on the other hand, of the specialised public consisting of universities and businesses offering educational courses.
26      It is clear that the applicant misinterprets the contested decision when it claims that the Board of Appeal took account of its criticism directed against the examiner’s decision, with the result that it found that the relevant public is a professional public displaying a high level of attention.
27      On the contrary, it is clear from the contested decision that the Board of Appeal arrived at the same findings as those made by the examiner, according to which the relevant public is the general public as well as the specialised public, which is very clear from the wording of paragraph 12 of the contested decision, namely ‘on the one hand, the general public …’ and ‘on the other hand, the specialised public …’. In the context of that general public — including, in particular but not exclusively, students and those wishing to dedicate themselves to further education — the Board of Appeal correctly found that account had to be taken of how the mark is perceived by the average consumer who is reasonably well informed and reasonably observant, and not, as submitted by the applicant, a consumer who pays particular attention when making a purchase.
28      Moreover, even if it is assumed that the relevant public is specialised, it is important to recall that that fact cannot have a decisive influence on the legal criteria used to assess the distinctive character of a sign. Although it is indeed true that the degree of attention of the relevant specialist public is, by definition, higher than that of the average consumer, it does not necessarily follow that a weaker distinctive character of a sign is sufficient in the case where the relevant public is specialised (judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 48).
29      According to settled case-law of the Court of Justice, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be taken into consideration (judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 49 and the case-law cited).
30      However, that principle could be undermined if the distinctiveness threshold of a word sign depended generally on the degree of specialisation of the relevant public (judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 50).
31      Furthermore, pursuant to Article 7(2) of Regulation No 207/2009, the relevant public with reference to which the absolute ground for refusal must be examined is, as is clear from paragraph 13 of the contested decision, an English-speaking public, since the word sign at issue consists of two English words, a fact which is, moreover, not disputed by the applicant (see, to that effect, judgments of 27 February 2002, Ellos v OHIM (ELLOS), T‑219/00, EU:T:2002:44, paragraph 31, of 15 October 2003, Nordmilch v OHIM (OLDENBURGER), T‑295/01, EU:T:2003:267, paragraph 35, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 21).
32      In the second place, the Board of Appeal found, in paragraphs 14 and 15 of the contested decision, that the mark applied for was not capable of distinguishing the goods or services covered by that mark by their business origin, but that, instead, the relevant public would see it as a description of the fact that the goods and services purchased will help the purchaser to become smarter, cleverer, more educated or intelligent, and that the joining of the words in question without any graphic or semantic modification did not imbue them with any additional characteristic such as to render the sign at issue capable of distinguishing the applicant’s goods and services from those of other undertakings. Lastly, the Board of Appeal noted, in paragraph 16 of the contested decision, that the figurative element underlined and illustrated the academic context, and therefore did not add any distinctive elements to the mark applied for.
33      That finding by the Board of Appeal must be confirmed.
34      The mark applied for joins the word ‘get’, which is, as follows from the examiner’s letter of 24 April 2017, synonymous with ‘succeed in attaining, achieving, or experiencing; obtain’, and the word ‘smarter’, which is the comparative form of the adjective ‘smart’, meaning ‘bright, intelligent, sharp-witted’. Although there is no space between the two words, the use of black for the word ‘get’ and pink for the word ‘smarter’ easily and immediately differentiates the two separate elements ‘get’ and ‘smarter’.
35      The joining of the words ‘get’ and ‘smarter’ complies fully with the rules of English grammar and the resulting word directly means, without any effort of interpretation, inter alia, ‘to become brighter’ or ‘to succeed in becoming more intelligent’.
36      Contrary to what the applicant claims, the typographic characters of the mark applied for are not particular, but are, on the contrary, extremely simple and banal. Likewise, the colours claimed — namely pink, black and white — in no way serve to create a different impression to that created by the simple joining of the two word elements, especially given that, as has been noted in paragraph 34 above, the use of different colours for the two words concerned serves to differentiate them more easily, notwithstanding their being joined.
37      As for the figurative element, this simply reinforces, as the Board of Appeal essentially found in paragraph 16 of the contested decision, the promotional message contained in the word element, in the sense that the mark applied for constitutes a promotional slogan according to which the goods or services in question will make the user more intelligent, since that slogan follows from the word element, which is itself reinforced by the depiction of an academic mortarboard. That message is promotional in the sense that it allows the user of the goods and services covered by the mark applied for to envisage, immediately and without any effort, progress with regard to his intellectual development.
38      It follows that the mark applied for does not have any particular originality or significance, and does not require a minimum interpretative effort or trigger any particular cognitive process on the part of the relevant public; rather, it is merely an ordinary advertising slogan according to which the goods and services covered by the mark applied for make people more intelligent.
39      In the third place, contrary to the applicant’s claim, the Board of Appeal did not take into consideration only the word element of the mark applied for, since it is perfectly clear from paragraph 16 of the contested decision that the Board of Appeal examined the influence of the figurative element on the overall impression and rightly concluded that that element merely reinforced the promotional message contained in the word element.
40      While it is correct, as the applicant points out, that the Board of Appeal did not make any direct reference to the colours used, it suffices to note that, in confirming the examiner’s decision, which refers specifically to the use of the colour pink, the Board of Appeal reproduced the analysis, contained in the letter of 24 April 2017, according to which all of the elements taken into consideration, including the use of the colours and specifically the use of the colour pink, did not make it possible for the mark applied for to be regarded as having distinctive character.
41      The applicant therefore manifestly misinterprets the contested decision when it claims that the Board of Appeal focused on the word element instead of taking into consideration the overall impression produced by the composite mark. A simple reading of paragraphs 14 to 16 of the contested decision highlights the fact that the Board of Appeal did indeed take into consideration all the elements making up the mark applied for in order to analyse its distinctive character.
42      In the fourth place, the applicant claims that, in accordance with the judgment of 21 January 2010, Audi v OHIM (C‑398/08 P, EU:C:2010:29), the evidence of actual use of the mark applied for ought to have been taken into consideration, not only for the purposes of Article 7(3) of Regulation No 207/2009, but also in the context of Article 7(1)(b) of that regulation.
43      Such an interpretation of that judgment is manifestly erroneous.
44      In paragraph 59 of the judgment of 21 January 2010, Audi v OHIM (C‑398/08 P, EU:C:2010:29), the Court of Justice recalled that the slogan, the registration of which was sought in respect of a large number of goods and services, was already widely known and had for many years been used by the applicant in regard to motor vehicles, with the result that, as is clear from a combined reading of paragraphs 53, 54 and 59 of that judgment, that reputation acquired in the automotive sector had to be taken into consideration in the context of the perception of that slogan with respect to the other goods and services for which registration had been refused.
45      It is clear that that case involved a specific situation, which does not pertain to the present case, in that the mark applied for was found by the Board of Appeal to lack distinctive character ab initio
in regard to all of the goods and services at issue, without any finding as to reputation with regard to other goods or services.
46      It follows that, contrary to the applicant’s claim, the use of the mark applied for cannot have any bearing in the context of Article 7(1) of Regulation No 207/2009, which concerns solely a mark’s intrinsic registrability ab initio. It is only when Article 7(3) of that regulation is invoked, and material evidence is submitted for assessment by the Board of Appeal, that use as such may allow the registration of a mark that is devoid of distinctive character ab initio (see, to that effect, judgment of 13 September 2016, Globo Comunicação e Participações v EUIPO (Sound mark), T‑408/15, EU:T:2016:468, paragraph 61.
47      It follows from the foregoing that the first plea must be rejected.
The second plea in law, alleging infringement of Article 7(3) of Regulation No 207/2009
48      The applicant, in essence, criticises the Board of Appeal for not finding that the mark applied for had acquired distinctiveness for the purposes of Article 7(3) of Regulation No 207/2009, even though it had submitted sufficient proof.
49      In that regard, it must be borne in mind that, under Article 7(3) of Regulation No 207/2009, the absolute grounds for refusal set out in Article 7(1)(b) and (c) of that regulation do not preclude the registration of a trade mark if that mark has become distinctive in relation to the goods and services for which registration is requested in consequence of the use which has been made of it.
50      Thus, according to settled case-law, Article 7(3) of Regulation No 207/2009 must be interpreted as meaning that the distinctiveness of a mark must have been acquired through use before the application was filed. Consequently, it is irrelevant that the mark has acquired distinctiveness through use after the application was filed but before EUIPO, in the person of the examiner or, as the case may be, the Board of Appeal, has determined whether there are any absolute grounds for refusing registration of that mark. It follows that EUIPO cannot have regard to evidence of use that occurred after the date of filing (see judgment of 21 November 2012, Getty Images v OHIM (PHOTOS.COM), T‑338/11, not published, EU:T:2012:614, paragraph 45 and the case-law cited; see also, to that effect, judgment of 11 June 2009, Imagination Technologies v OHIM, C‑542/07 P, EU:C:2009:362, paragraph 49).
51      Furthermore, it is clear from the case-law that the acquisition of distinctive character through use of a mark requires that at least a significant proportion of the relevant section of the public identifies the goods or services concerned as originating from a particular undertaking because of the mark (judgments of 29 April 2004, Eurocermex v OHIM (Shape of a beer bottle), T‑399/02, EU:T:2004:120, paragraph 42, of 15 December 2005, BIC v OHIM (Shape of a lighter), T‑262/04, EU:T:2005:463, paragraph 61, and of 17 May 2011, Diagnostiko kai Therapeftiko Kentro Athinon ‘Ygeia’ v OHIM (υγεία), T‑7/10, not published, EU:T:2011:221, paragraph 42). However, the circumstances in which that requirement may be regarded as satisfied cannot be shown to exist solely by reference to general and abstract data (judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 52, and of 17 May 2011, υγεία, T‑7/10, not published, EU:T:2011:221, paragraph 45).
52      The Court of Justice has stated that, in order to determine whether a mark has acquired distinctive character following the use made of it, the competent authority must make an overall assessment of the evidence that the mark has come to identify the goods concerned as originating from a particular undertaking, and accordingly to distinguish those goods from goods of other undertakings (judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 49, of 15 December 2005, Shape of a lighter, T‑262/04, EU:T:2005:463, paragraph 63, and of 17 May 2011, υγεία, T‑7/10, not published, EU:T:2011:221, paragraph 43).
53      In that regard, account must be taken of, inter alia, the market share held by the mark, how intensive, geographically widespread and long-standing the use of the mark has been, the amount invested by the undertaking in promoting the mark, the proportion of interested parties who identify the product as originating from a particular undertaking because of the mark, and statements from chambers of commerce and industry or other trade and professional associations as well as opinion polls (see judgments of 15 December 2005, Shape of a lighter, T‑262/04, EU:T:2005:463, paragraph 64 and the case-law cited, and of 17 May 2011, υγεία, T‑7/10, not published, EU:T:2011:221, paragraph 44).
54      Furthermore, in order for registration of a trade mark to be accepted under Article 7(3) of Regulation No 207/2009, the distinctive character acquired through the use of that trade mark must be demonstrated in the part of the European Union where it was devoid of any such character under Article 7(1)(b) to (d) of that regulation (see, to that effect, judgment of 19 November 2008, Rautaruukki v OHIM (RAUTARUUKKI), T‑269/06, not published, EU:T:2008:512, paragraph 45 and the case-law cited), that is to say, in the present case, in the Member States of the European Union in which English is an official language (Ireland, Malta and the United Kingdom) or is at least widely understood (Netherlands, Denmark, Sweden and Finland) (see, to that effect, judgment of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraph 76 and the case-law cited).
55      Lastly, although it is not necessary, for the purposes of registering, on the basis of Article 7(3) of Regulation No 207/2009, a mark that is, ab initio, devoid of distinctive character throughout all the Member States of the European Union, that evidence be submitted, in respect of each individual Member State, of the acquisition by that mark of distinctive character through use, the evidence submitted must be capable of establishing such acquisition throughout the Member States of the European Union (judgment of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraph 83).
56      It is possible that for certain goods or services the economic operators may have grouped several Member States together in the same distribution network and have treated those Member States, especially for marketing strategy purposes, as if they were one and the same national market. In such circumstances, the evidence for the use of a sign within such a cross-border market is likely to be relevant for all of the Member States concerned. The same is true when, due to a geographic, cultural or linguistic proximity between two Member States, the relevant public of the first has a sufficient knowledge of the goods and services that are present on the national market of the second (judgment of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraphs 81 and 82).
57      As is clear from paragraph 36 of the contested decision, the evidence on which the applicant relied is as follows:
‘A witness statement from Ms Melindi Britz, the Managing Director of the applicant, Getsmarter Online Ltd, with exhibits/annexes detailed as follows:
–        Copy of the applicant’s website advertising the short courses on offer in the EU under the mark at issue (Exhibit 1);
–        The applicant — together with a related company in the UK using the mark at issue — currently collaborates with several prestigious and well-known universities in the EU (Exhibit 2);
–        The courses provided by the applicant and its related companies using the mark at issue cover a wide range of educational topics (Exhibit 3);
–        Example of a brochure for the applicant’s Digital Marketing online short course (Exhibit 4);
–        Prospectus for the applicant’s “Business, International Relations and the Political Economy” online course published on the London School of Economics and Political Science website (Exhibit 5);
–        Snapshot of a Facebook advertisement posted by the applicant (Exhibit 6);
–        VAT returns submitted by the applicant to UK Revenue and Customs covering 2016 (Exhibit 7);
–        Total value of the goods and services supplied by the applicant under the mark at issue in various EU Member States … from 1 October 2016 to 31 December 2016 (Exhibit 8);
–        Total value of the goods and services supplied by the applicant under the mark at issue in various EU Member States … from 1 April 2016 to 30 June 2016 (Exhibit 9);
–        Applicant’s UK Revenue and Customs VAT returns for the period from 1 January 2017 to 31 March 2017 (Exhibit 10);
–        Invoices issued by the applicant over the past two years to consumers/students of the goods and services provided by the applicant (Exhibit 11).’
58      As a preliminary point, it should be observed that the applicant does not dispute the fact that the evidence of the distinctive character of the mark applied for by reason of the use that had been made of that mark had to relate to the English-speaking population of the European Union, that is, not only those countries where English is an official language, but also those where, at the very least, English is widely understood, namely Denmark, Finland, Sweden and the Netherlands (see, to that effect, judgment of 26 November 2008, New Look v OHIM (NEW LOOK), T‑435/07, not published, EU:T:2008:534, paragraph 23).
59      Moreover, contrary to the view taken by the applicant, the evidence is not only intended to establish that the mark applied for will be understood by consumers as a trade mark and not as a promotional slogan, but also seeks to demonstrate that the mark applied for, which has been found to be devoid of distinctive character, could nevertheless be registered if it is demonstrated that that mark has acquired distinctive character in consequence of the use made of it prior to the date of the application for registration.
60      In this context it must be held that, in respect of the four Member States concerned, the applicant has not, regard being had to the case-law set out in paragraph 53 above, filed any document containing information as to the market share held by the contested mark, the intensity and amount of the investments made by the company to promote the mark, or the proportion of the relevant class of persons who, because of the contested mark, identify the product as originating from a particular undertaking, and it has not submitted any statement from chambers of commerce and industry or other professional associations (see, to that effect, judgment of 21 April 2015, Louis Vuitton Malletier v OHIM — Nanu-Nana (Representation of a grey chequerboard pattern), T‑360/12, not published, EU:T:2015:214, paragraph 104).
61      As for the other items of evidence, while they reflect a certain use of the mark applied for, none of the documents informs the Court as to that mark’s acquisition of distinctive character, which cannot be demonstrated by such piecemeal evidence as that which has been submitted by the applicant.
62      As regards, in the first place, the witness statement of Ms Britz, dated 25 August 2017, it should be observed that that employee states that she has worked for the applicant only since September 2016, that is to say, six months prior to the date of application for registration of the mark, and she provides no evidence predating 1 January 2016.
63      Moreover, that witness statement does not contain any relevant information allowing precise, detailed and indisputable conclusions to be drawn as to the distinctive character acquired through use of the mark applied for amongst the relevant public. It merely mentions, inter alia, the circumstances in which the mark applied for is used, the universities with which the applicant collaborates, and the number of students enrolled on its courses.
64      In that respect, the information contained in that witness statement is manifestly insufficient to provide proof that the mark applied for has acquired distinctive character through the use made of it. As is clear from that statement, only 1 162 persons were enrolled on courses offered by the applicant within the European Union between 1 February and 28 July 2016. Moreover, only four universities collaborating with the applicant are mentioned, all of which are situated in the United Kingdom.
65      As regards, in the second place, the other evidence submitted for the Board of Appeal’s assessment, that too is manifestly insufficient to prove that the mark applied for has acquired distinctive character in consequence of the use made of it.
66      Thus, the web pages taken from the applicant’s own website or the brochures mentioning the applicant’s name do not in any way allow a finding to be made as to the proportion of the general public that is familiar with the mark applied for, even if that public is limited to students and other private parties who wish to devote themselves to further education.
67      Similarly, neither the value of sales in the United Kingdom nor the value of sales in Denmark, the Netherlands and in Sweden, together with the amount of VAT paid, makes it possible to determine whether the mark applied for has acquired distinctive character, since that evidence is completely different to that which must be submitted by the proprietor of a mark which has intrinsic distinctive character, the genuine use of which is disputed by a third party.
68      In the present case, awareness on the market of the mark applied for must satisfy the strict conditions defined by the Court of Justice in its case-law. Those conditions are manifestly not satisfied in the present case, with the result that the Board of Appeal did not commit an error of assessment in finding that evidence of distinctive character acquired through use of that mark had not been submitted.
69      The second plea must consequently be rejected.
70      It follows from all of the foregoing that the action must be dismissed as manifestly lacking any foundation in law.
Costs
71      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. 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 (Eighth Chamber)
hereby orders:
1.      The action is dismissed.
2.      Getsmarter Online Ltd shall pay the costs.
Luxembourg, 8 May 2019.
E. Coulon
A.M. Collins
Registrar
President
*      Language of the case: English.