Judgment of the General Court (Second Chamber) of 22 September 2021 –

Moviescreens Rental v EUIPO – the airscreen company (AIRSCREEN)

(Case T‑250/20)

(EU trade mark – Invalidity proceedings – EU figurative mark airscreen – Absolute grounds for refusal – No descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EU) 2017/1001) – Distinctive character – Article 7(1)(b) of Regulation No 40/94 (now Article 7(1)(b) of Regulation 2017/1001))

1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Alteration of a decision of the Office – Assessment in the light of the powers conferred on the Board of Appeal (European Parliament and Council Regulation 2017/1001, Art. 72(3)) (see para. 23)

2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Aim – Need to preserve availability (Council Regulation No 40/94, Arts 7(1)(c), and 51(1)(a)) (see para. 30)

3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Assessment of the descriptive character of the trade mark – Criteria (Council Regulation No 40/94, Arts 7(1)(c), and 51(1)(a)) (see paras 31, 32)

4. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Registration contrary to Article 7 of Regulation No 40/94 – Relevant date for the examination of an absolute ground for nullity – Date of lodging the application for registration (Council Regulation No 40/94, Arts 7(1) and 51(1)(a)) (see paras 33, 34)

5. EU trade mark – Procedural provisions – Examination of the facts of EUIPO’s own motion – Invalidity proceedings concerning absolute grounds for refusal – Examination restricted to the facts, evidence and arguments provided – Well-known facts taken into account (European Parliament and Council Regulation 2017/1001, Arts 7, 59, 62 and 95(1)) (see paras 35-37)

6. EU trade mark – Definition and acquisition of the EU trade mark – Assessment of the registrability of a sign – EU rules only taken into account – Earlier registration of the mark in certain Member States or third countries – Decisions not binding EU bodies (Council Regulation No 40/94) (see paras 57, 62)

7. EU trade mark – Definition and acquisition of the EU trade mark – Assessment of the registrability of a sign – EU rules only taken into account – Decisions of national authorities not binding EU bodies (Council Regulation No 40/94) (see para. 63)

8. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Figurative mark airscreen (Council Regulation No 40/94, Arts 7(1)(c), and 51(1)(a)) (see paras 70-72, 76)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 12 February 2020 (Case R 2527/2018-4), relating to invalidity proceedings between Moviescreens Rental and the airscreen company.

Operative part

The Court:

1. Dismisses the action;