Judgment of the General Court (Fifth Chamber) of 4 July 2017 —

Pirelli Tyre v EUIPO (A pair of curved strips positioned on the side of a tyre)

(Case T‑81/16)

(EU trade mark — Application for an EU trade mark consisting of a pair of curved strips on the side of a tyre — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Council Regulation (EC) No 207/2009 — No distinctive character acquired through use — Article 7(3) of Regulation No 207/2009 — Article 75 of Regulation No 207/2009 — Article 76 of Regulation No 207/2009)

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies — Precluded (Council Regulation No 207/2009, Art. 65) (see para. 13)

2. EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 19-22, 28)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 44-48)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Recognition of the distinctiveness of the sign not subject to a finding of a certain level of creativity or linguistic or artistic imagination (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 49, 50, 61)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing a pair of curved strips positioned on the side of a tyre (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 53, 58, 64)

6. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice (see para. 63)

7. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b) to (d), and (3)) (see paras 69, 70, 73-76)

8. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Trade mark devoid of distinctive character throughout the EU — Acquisition by use also throughout the EU (Council Regulation No 207/2009, Art. 7(3)) (see paras 71, 72)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 9 December 2015 (Case R 1019/2015-1) concerning an application for registration of a sign consisting of a pair of curved strips on the side of a tyre as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;