JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
16 July 2025 (*)
( EU trade mark – International registration designating the European Union – Figurative mark representing a wavy rectangle – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑215/24,
Rigo Trading SA, established in Senningerberg (Luxembourg), represented by H. Held, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi and V. Ruzek, acting as Agents,
defendant,
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, D. Petrlík and S. Kingston (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 17 January 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Rigo Trading SA, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 February 2024 (Case R 2150/2023-5) (‘the contested decision’).
Background to the dispute
2        On 19 April 2022, the applicant designated the European Union for international registration in respect of the following figurative mark:
3        The mark applied for covered goods, following the restriction made in the course of the proceedings before EUIPO, in Classes 9, 14, 16, 18, 20, 21, 24, 25, 26, 27 and 28 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, for each of those classes, to the description set out in paragraph 1 of the contested decision.
4        By decision of 5 September 2023, the examiner refused, on the basis of Article 7(1)(b) and Article 182 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), registration of the mark applied for in respect of the goods in the classes referred to in paragraph 3 above.
5        On 23 October 2023, the applicant filed a notice of appeal with EUIPO against the examiner’s decision.
6        By the contested decision, the Board of Appeal dismissed the appeal on the ground that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001, and remitted the case to the Examination Division for further examination of the applicant’s subsidiary claim under Article 7(3) of Regulation 2017/1001 and Article 2(2) 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), in respect of all the goods at issue.
Forms of order sought
7        The applicant claims that the Court should:
–        annul the contested decision and refer the case back to EUIPO;
–        order EUIPO to pay the costs.
8        EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
Law
9        The applicant relies, in essence, on two pleas in law, the first alleging infringement of Article 7(1)(b) of Regulation 2017/1001 and the second alleging infringement of Article 20 and Article 41(1) and (2)(a) and (c) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
The first plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
10      By its first plea in law, the applicant disputes the Board of Appeal’s definition of the relevant public and its assessment of the distinctive character of the mark applied for.
Definition of the relevant public
11      The applicant claims that the Board of Appeal made an error of assessment in finding that the relevant public in question included the professional public, with an average to high level of attention. According to the applicant, the relevant public is the general public of the European Union, whose level of attention is average.
12      EUIPO disputes that argument.
13      Article 7(1)(b) of Regulation 2017/1001 provides that trade marks which are devoid of any distinctive character must not be registered.
14      For a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the product 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 judgment of 26 June 2024, Volvo Personvagnar v EUIPO (Shape of headlights), T‑260/23, not published, EU:T:2024:421, paragraph 15 and the case-law cited).
15      The distinctive character of a mark must be assessed, first, by reference to the products or services in respect of which registration has been sought and, second, by reference to the perception of the relevant public (see judgment of 26 June 2024, Shape of headlights, T‑260/23, not published, EU:T:2024:421, paragraph 16 and the case-law cited).
16      In the present case, the Board of Appeal found, in paragraph 25 of the contested decision, that the relevant public consisted of the general public and the professional public, with the result that, depending on the price and level of sophistication of the goods covered by the mark applied for and the knowledge or expertise required, the level of attention of the relevant public varied from average to high. As regards the geographical extent of the definition of the relevant public, the Board of Appeal found, in paragraph 27 of that decision, that it consisted of all consumers in the European Union, given that the figurative sign at issue did not require knowledge of any language in order to be understood.
17      In that regard, it must be borne in mind, as the Board of Appeal correctly noted, that the fact that part of the relevant public is a specialist one cannot have a decisive influence on the legal criteria used to assess the distinctive character of a sign. Although it is true that the level 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 specialist (judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 48). Furthermore, even assuming that the Board of Appeal erred in finding that the relevant public included both the general public and the professional public, it should be noted that, when questioned in that regard at the hearing, the applicant did not explain how such an error would call into question the Board of Appeal’s assessment as to the distinctive character of the mark applied for.
18      In any event, as EUIPO correctly noted, some of the goods covered by the mark applied for are indeed addressed to professionals with a higher level of attention, such as, for example, apparatus and instruments for transforming electricity, in Class 9.
19      Therefore, the Board of Appeal did not make an error of assessment in finding that, in view of the large number of goods at issue, the variety of categories to which they belong, their nature, their price and their method of use, the level of attention of the relevant public was likely to vary from average to high.
20      Accordingly, the complaint relating to the definition of the relevant public must be rejected.
The distinctiveness of the mark applied for
21      The applicant submits that the mark applied for is not a basic geometric figure, nor is it comparable with such a figure. It disputes the Board of Appeal’s assessment that the figurative sign represents a wavy outline of a rectangular shape, which renders it comparable with a basic geometric figure. That mark does not consist solely of basic geometric shapes, such as lines or circles ‘without conveying a message’. By contrast, the relevant public will recognise that it represents, by its outline, a Haribo Goldbear gummy bear with distinctive characteristics, namely ears, arms, legs and a head.
22      EUIPO disputes the applicant’s arguments.
23      The marks referred to in Article 7(1)(b) of Regulation 2017/1001 are those which are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services in question, 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 (see judgment of 20 October 2021, Square v EUIPO ($ Cash App), T‑211/20, not published, EU:T:2021:712, paragraph 18 and the case-law cited).
24      A finding that a mark has distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 is not subject to a finding of a specific level of linguistic or artistic creativity or imaginativeness on the part of the proprietor of the trade mark. The sign must also have certain characteristics which can be easily and instantly memorised by the relevant public and which would make it possible for that sign to be perceived immediately as an indication of the commercial origin of the goods at issue (see judgment of 26 September 2017, Waldhausen v EUIPO (Representation of the silhouette of a horse’s head), T‑717/16, not published, EU:T:2017:667, paragraph 47 and the case-law cited).
25      A sign which is excessively simple and is constituted by a basic geometrical figure, such as a circle, a line, a rectangle or a conventional pentagon, is not, in itself, capable of conveying a message which consumers will be able to remember, with the result that they will not regard it as a trade mark unless it has acquired, in accordance with Article 7(3) of Regulation 2017/1001, distinctive character through use (see, to that effect, judgment of 19 June 2024, Coinbase v EUIPO (Representation of a broken circle), T‑304/23, not published, EU:T:2024:401, paragraph 22 and the case-law cited).
26      The same applies to a mark whose simplicity is comparable to that of a basic geometric figure (see, to that effect, judgment of 28 March 2019, Coesia v EUIPO (Representation of two oblique red curves), T‑829/17, not published, EU:T:2019:199, paragraph 54).
27      In the present case, the mark applied for represents a two-dimensional geometric figure of no particular complexity. As the Board of Appeal found in paragraph 29 of the contested decision, the mark applied for consists of a thick black line that represents the outline of a closed shape with curved sides on a white background. The sign constitutes a flat shape with four wavy sides and four curved angles, with opposite sides of equal length and two vertical sides longer than the other two horizontal sides.
28      Therefore, the Board of Appeal did not make an error of assessment in finding, in paragraphs 30, 31 and 34 of the contested decision, that the mark applied for represented the wavy outline of a rectangular shape, the simplicity of which was comparable to a basic (rectangular) geometric figure, without any element of that shape, including its rounded parts, being memorable or eye-catching and without providing any indication of a characteristic of an animal or, more generally, of a creature.
29      In addition, the Board of Appeal was right to observe in paragraph 32 of the contested decision that, in view of its simplicity, the mark applied for did not convey a clear message to the targeted public in relation to the wide variety of the goods at issue, but rather would be perceived primarily as a decorative element or an embellishment serving aesthetic purposes.
30      Furthermore, the applicant has not shown that the relevant public would recognise, in the mark applied for, the body parts of a bear, such as its ears, arms, legs and head. Similarly, the applicant has not shown that that public would recognise that that mark represented the outline of a Haribo Goldbear gummy bear. In paragraph 49 of the application, the applicant merely asserted, without adducing any evidence in that regard, that it ‘confronted several parts of the relevant consumers’ with the sign at issue, who ‘without exceptions’ stated that that sign was a ‘gummy bear’ or a Haribo Goldbear sweet.
31      When questioned in that regard at the hearing, the applicant confirmed that there was no evidence in the administrative file relating to the perception of the relevant public of the sign at issue as an indication of the commercial origin of the goods at issue, nor as a representation of a bear. According to the applicant, the perception of the relevant public must instead be examined in the context of Article 7(3) of Regulation 2017/1001 concerning the assessment of distinctive character acquired through use.
32      In that regard, it should be noted that, according to the case-law, it is only in the context of the application of Article 7(3) of Regulation 2017/1001 that the actual use of a sign for which registration is sought must be assessed, since that provision allows registration of a sign which was originally devoid of distinctive character, where that sign has become distinctive in relation to the goods or services for which registration is sought, as a result of the use which has been made of it (see, to that effect, judgment of 29 September 2021, Enosi Mastichoparagogon Chiou v EUIPO (MASTIHACARE), T‑60/20, not published, EU:T:2021:629, paragraph 44 and the case-law cited).
33      In that regard, the Board of Appeal stated that the question whether the mark applied for had acquired distinctive character through use, within the meaning of Article 7(3) of Regulation 2017/1001, would be dealt with at a later stage, once the contested decision had become final, when the proceedings were resumed for the purposes of EUIPO’s examination of that subsidiary claim.
34      Accordingly, the argument raised in paragraph 49 of the application, and further developed at the hearing, is ineffective, since the question whether the mark applied for has acquired distinctive character through use does not fall within the scope of the contested decision.
35      Consequently, the Board of Appeal was right in finding that the mark applied for was covered by the absolute ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001.
36      That finding is not called into question by the applicant’s other arguments.
37      First, contrary to what the applicant claims, the mark applied for is not comparable to the marks analysed in the judgments of 7 October 2015, The Smiley Company v OHIM (Shape of a face) (T‑243/14, not published, EU:T:2015:765); of 15 December 2016, Novartis v EUIPO (Representation of a grey curve and representation of a green curve) (T‑678/15 and T‑679/15, not published, EU:T:2016:749); and of 26 July 2023, Apart v EUIPO – S. Tous (Representation of the outline of a bear) (T‑591/21, not published, EU:T:2023:433), or to the two-dimensional signs constituting the EU trade marks referred to in paragraph 46 of the application.
38      First of all, it should be noted that the outlines of the marks at issue in the judgments cited in paragraph 37 above and those of the signs referred to in that paragraph were considerably more complex and elaborate than the outline of the mark applied for and that those marks and signs were not comparable to the mark applied for. Furthermore, as regards the mark at issue in the judgment of 26 July 2023, Representation of the outline of a bear (T‑591/21, not published, EU:T:2023:433), the applicant itself acknowledges, in paragraph 62 of the application, that that mark and the mark applied for are ‘certainly’ not similar.
39      In addition, as regards the earlier registrations of two-dimensional signs referred to in paragraph 37 above, a number of them were not the subject of decisions of a Board of Appeal of EUIPO, namely trade marks No 6 836 829, No 12 144 903 and No 15 808 694, referred to in paragraph 46 of the application, as EUIPO correctly observed at the hearing. Moreover, the Boards of Appeal cannot be bound by the decisions of lower-ranking adjudicating bodies of EUIPO (see, to that effect, judgments of 22 May 2014, NIIT Insurance Technologies v OHIM (EXACT), T‑228/13, not published, EU:T:2014:272, paragraph 48, and of 26 November 2015, Nürburgring v OHIM – Biedermann (Nordschleife), T‑181/14, not published, EU:T:2015:889, paragraph 44).
40      Next, the applicant submits that the mark applied for is similar to trade mark No 1 660 878 which is the subject of the decision of the Fourth Board of Appeal of EUIPO in Case R 872/2023-4, in so far as both marks are recognised as representing a bear and even the Haribo Goldbear gummy bear.
41      However, there is a clear difference between trade mark No 1 660 878 and the sign at issue in the present case, in that that mark is three-dimensional, whereas the sign at issue is two-dimensional. As is apparent from paragraph 34 of the contested decision, that mark consists of a sign representing a compact shape showing a head with straight ears, eyes, a nose and a smile, but also paws stretched out like two arms and two legs, as well as a shiny surface. In addition, as observed in paragraph 30 above, the applicant has not adduced any evidence to prove its contention relating to the relevant public’s perception of the mark applied for as representing a bear or any other animal.
42      Lastly, and in any event, the mere fact that other marks, even if they are also simple, have been regarded as being capable of being perceived by the relevant public as an indication of the commercial origin of the goods in question, and therefore as not being devoid of any distinctive character, is not sufficient to determine whether, in the present case, the mark applied for also has a minimum degree of distinctiveness necessary to be able to be protected in the European Union (judgment of 6 June 2019, Ortlieb Sportartikel v EUIPO (Representation of an octagon), T‑449/18, not published, EU:T:2019:386, paragraph 41). The minimum degree of distinctiveness required for the purposes of registration as an EU trade mark or protection in the European Union must be assessed in each case in the light of the circumstances of the case and, in particular, the goods covered by the mark at issue and the perception of the relevant public.
43      Second, the applicant is of the opinion that the Board of Appeal did not correctly take into account the perception of the relevant public of the figurative signs, relying on Annexes A.8 to A.11 to the application in order to support its argument. In particular, according to the applicant, the simplicity of a sign helps the human brain to identify and perceive it, and to relate it to specific content.
44      EUIPO submits that Annexes A.8 to A.11 to the application are inadmissible, in so far as they were submitted for the first time before the Court.
45      According to the case-law, the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, such documents must be rejected as inadmissible, there being no need to examine them (see judgment of 29 May 2024, Chiquita Brands v EUIPO – Jara 2000 (CHIQUITA QUEEN), T‑79/23, not published, EU:T:2024:327, paragraph 17 and the case-law cited).
46      In the present case, it should be noted that Annexes A.8 to A.11 to the application were submitted for the first time before the Court.
47      When questioned on the admissibility of those annexes at the hearing, the applicant argued that the information included in those annexes should nevertheless be taken into account by the Court, since it consists of facts which are well known, with the result that it does not provide any additional information.
48      The information in Annexes A.8 to A.11 to the application cannot be regarded as consisting of facts which are well known, it being understood that such facts are those likely to be known by anyone or which may be learnt from generally accessible sources (judgments of 22 June 2004, Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO), T‑185/02, EU:T:2004:189, paragraphs 28 and 29, and of 21 September 2017, The Logistical Approach v EUIPO – Idea Groupe (Idealogistic), T‑620/16, not published, EU:T:2017:635, paragraph 19).
49      Those annexes consist of an extract from the website ‘https://circumicons.com/’ containing the article ‘The psychology of icons: Why they are so effective’, a copy of the article entitled ‘A user study of visualization effectiveness using EEG and cognitive load’, published by the IEEE Symposium on Visualization 2011, and extracts from pages from the Wikipedia website relating to searches containing the expression ‘Gestalt psychology’ and the expression the ‘KISS principle’. As EUIPO noted at the hearing, those annexes contain academic articles from scientific and specialist journals, as well as other articles relating to human psychology and psychological theory, which cannot be expected to be known by anyone or to be learnt from generally accessible sources.
50      In those circumstances, it is appropriate to examine the action without taking into account Annexes A.8 to A.11 to the application or the arguments based on those annexes.
51      Third, the applicant submits that the Board of Appeal erred in failing to apply the principles identified in the judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?) (C‑541/18, EU:C:2019:725). The Board of Appeal should have found that the use of representations of animals, as a trade mark, was a rather common practice on the relevant market, which is demonstrated by several examples of the applicant’s use of those reproductions for goods which it distributed under licence. Those examples show that the sign at issue will be perceived by the relevant public as an indication of commercial origin. According to the applicant, that judgment allowed the Board of Appeal to take into account several examples of use of the mark applied for, including all the likely types of use of the mark applied for, which serve to establish the perception of that mark in relation to the HARIBO range and its products.
52      In that regard, it follows from the judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?) (C‑541/18, EU:C:2019:725), that Article 3(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25), the content of which corresponds to Article 7(1)(b) of Regulation 2017/1001, must be interpreted as meaning that in examining the distinctive character of a sign in respect of which registration as a trade mark is sought, all the relevant facts and circumstances must be taken into account, including all the likely types of use of the mark applied for. The latter correspond, in the absence of other indications, to the types of use which, in the light of the customs in the economic sector concerned, can be practically significant (judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?), C‑541/18, EU:C:2019:725, paragraph 33).
53      It should be noted, in addition, that the judgment referred to in paragraph 52 above concerned a situation in which there were two types of placement of marks, which were significant in practice in the sector in question. In particular, according to the referring court in that case, in the clothing sector, it was usual to place the mark on both the exterior of the goods, for example on the front of a T-shirt, and on the labels sewn on the inside of them (see, to that effect, judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?), C‑541/18, EU:C:2019:725, paragraphs 29 and 30).
54      In the present case, when questioned, at the hearing, on the relevance of the judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?) (C‑541/18, EU:C:2019:725), the applicant did not identify the types of use of the marks which, in the light of the customs of the sector concerned, would be significant in practice in the sectors concerned by the mark applied for, it being stated, moreover, that that mark covers a multitude of goods pertaining to various and varied economic sectors. In particular, the applicant has failed to demonstrate that, due to a given type of use, which is significant in practice in the sectors concerned, the relevant public will be led to perceive that mark as an indication of commercial origin.
55      Furthermore, at the hearing, the applicant stated that its argument relating to the interpretation of the types of use set out in the judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?) (C‑541/18, EU:C:2019:725), was based, in essence, on the premiss that the mark applied for was comparable to its earlier trade mark No 1 660 878. Given that the comparability of those marks has been rejected for the reasons set out in paragraph 41 above, that line of argument cannot succeed.
56      Accordingly, the applicant’s line of argument based on the judgment of 12 September 2019, Deutsches Patent- und Markenamt (#darferdas?) (C‑541/18, EU:C:2019:725), must be rejected.
57      In the light of all the foregoing considerations, the first plea in law must be dismissed as unfounded.
The second plea in law, alleging infringement of Article 20 and Article 41(1) and (2)(a) and (c) of the Charter
58      The applicant claims, in essence, that the Board of Appeal has infringed Article 20 and Article 41(1) and (2)(a) and (c) of the Charter, in that, first, it did not explain why it had ruled differently from EUIPO decisions relating to signs that are comparable to the mark applied for and, second, it was not heard in that regard.
59      EUIPO disputes the applicant’s arguments.
60      The first sentence of Article 94(1) of Regulation 2017/1001 provides that EUIPO’s decisions must state the reasons on which they are based. That duty to state reasons has the same scope as that under Article 296 TFEU and Article 41(2)(c) of the Charter, pursuant to which the reasoning of the body which adopted the act in question must be set out clearly and unequivocally. That duty has two purposes: first, to allow interested parties to know the justification for the measure taken so as to enable them to defend their rights and, second, to enable the EU Courts to exercise their power to review the legality of the decision. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 6 November 2024, IN tIME Express Logistik v EUIPO (inTime AGILE LOGISTICS), T‑1100/23, not published, EU:T:2024:781, paragraph 27 and the case-law cited).
61      In addition, EUIPO must, having regard to the principles of equal treatment and sound administration, take into account the decisions already taken in respect of similar applications. It must consider with especial care whether it should decide in the same way or not, since the way in which those principles are applied must be consistent with respect for the principle of legality, which means that the examination of any trade mark application must be stringent and full, and must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable to the factual circumstances of the particular case (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 77; see also, judgment of 7 December 2022, Puma v EUIPO – Vaillant (Puma), T‑623/21, not published, EU:T:2022:776, paragraph 108 and the case-law cited).
62      It follows from those principles that it is incumbent on the Boards of Appeal, when deciding to take a different view from that adopted in decisions previously taken in respect of similar applications relied on before them, to provide an explicit statement of their reasoning for departing from those decisions. However, such a duty to state reasons for diverging from previous decisions is less important in relation to an assessment which depends strictly on the mark applied for, than in respect of factual findings which do not depend on that same mark (see, to that effect, judgment of 14 February 2019, Bayer Intellectual Property v EUIPO (Representation of a heart), T‑123/18, EU:T:2019:95, paragraph 35 and the case-law cited).
63      In addition, a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity to make his or her point of view known. According to settled case-law, in the context of EU trade mark law, that general principle is enshrined in Article 94 of Regulation 2017/1001, which provides that EUIPO’s decisions are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments (see, to that effect, judgments of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraph 42, and of 13 February 2019, Etnia Dreams v EUIPO – Poisson (Etnik), T‑823/17, not published, EU:T:2019:85, paragraphs 92 and 93).
64      In the present case, the Board of Appeal clearly set out, in paragraphs 40 to 49 of the contested decision, the reasons why it rejected the applicant’s arguments relating to the earlier registration decisions relied on by the applicant. In particular, in paragraphs 41 and 42 of that decision, the Board of Appeal concluded that there was no comparability between the mark applied for and the EU trade mark registrations on which the applicant relies, given that the latter refer to more complex marks or marks representing different shapes, with the result that those marks are not comparable to the mark applied for. In addition, in paragraph 43 of the contested decision, the Board of Appeal found that the sign examined in the judgment of 7 June 2023, Aprile and Commerciale Italiana v EUIPO – DC Comics (Representation of a bat in an oval surround) (T‑735/21, not published, EU:T:2023:304), was more elaborate than the mark applied for.
65      Next, in paragraph 47 of the contested decision, the Board of Appeal examined the relevance of the registrations of marks at national level relied on by the applicant both in respect of registrations in EU Member States and in third countries. In that regard, the Board of Appeal rightly recalled the case-law according to which the Courts of the European Union are not bound by a decision given in a Member State that a sign is registrable as a national trade mark. The EU trade mark system is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system (see, to that effect, judgment of 6 September 2018, Bundesverband Souvenir – Geschenke – Ehrenpreise v EUIPO, C‑488/16 P, EU:C:2018:673, paragraph 72 and the case-law cited). Therefore, the registrability of a sign as an EU trade mark must be assessed by reference only to the relevant EU rules. EUIPO and, if appropriate, the EU judicature are not bound by a decision given in a Member State, or in a third country, that the sign in question is registrable as a national mark (judgments of 27 February 2002, Streamserve v OHIM (STREAMSERVE), T‑106/00, EU:T:2002:43, paragraph 47, and of 11 May 2010, Abadía Retuerta v OHIM (CUVÉE PALOMAR), T‑237/08, EU:T:2010:185, paragraph 137).
66      Accordingly, as regards the earlier registrations relied on by the applicant before the Board of Appeal, the applicant was in a position to understand, on reading the contested decision, the essential legal reasoning underpinning that decision, namely, first, that alleging that the Board of Appeal did not consider itself bound by such registrations and, second, that relating to the fact that such registrations were not comparable to the mark applied for.
67      In addition, as is apparent from paragraphs 37 to 42 above, the statement of reasons for the contested decision enabled the Court to review the legality of that decision in the light of the applicant’s arguments alleging a discrepancy with earlier registrations.
68      Consequently, the applicant’s arguments alleging a failure to state reasons in the contested decision must be rejected.
69      Lastly, it should be noted that, in the present case, the applicant had the opportunity to put forward its arguments before the Board of Appeal, in particular in its statement setting out the grounds of appeal, with the result that its complaint alleging infringement of Article 41(2)(a) of the Charter must be rejected.
70      In the light of the foregoing, the second plea in law must be dismissed and, accordingly, the action must be dismissed in its entirety, without it being necessary to rule on the admissibility of the second part of the applicant’s first head of claim, by which the applicant requests that the case be referred back to EUIPO for re-examination.
Costs
71      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.
72      Since a hearing has taken place and 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:
1.      Dismisses the action;
2.      Orders Rigo Trading SA to pay the costs.
Kornezov
Petrlík
Kingston
Delivered in open court in Luxembourg on 16 July 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.