JUDGMENT OF THE GENERAL COURT (Third Chamber)

14 June 2017 ( )

(EU trade mark — Application for the EU word mark Second Display — Absolute grounds for refusal — Descriptiveness — No distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

In Case T‑659/16,

LG Electronics, Inc., established in Seoul (Republic of Korea), represented by Mr T. de Haan and P. Péters, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

ACTION brought against the decision of the First Board of Appeal of EUIPO dated 10 June 2016 (Case R 106/2016-1) concerning an application for registration of the word sign Second Display as an EU trade mark,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 16 September 2016,

having regard to the response lodged at the Court Registry on 4 November 2016,

having regard to the fact that no request for a hearing was submitted by the main 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

Background to the dispute

1 On 15 July 2015, the applicant, LG Electronics Inc., 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).

2 The mark in respect of which registration was sought is the word sign Second Display.

3 The goods in respect of which registration was sought fall within Classes 9 and 14 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 9: ‘Smart phones; Displays for smart phone; Mobile phones; Wearable smart phones; Wireless headsets; Headsets; Wireless headsets for mobile phone; Wireless headsets for smart phone; Digital set top boxes; Leather cases for mobile phone; Leather cases for smart phone; Flip covers for mobile phone; Flip covers for smart phone; Application software; Software for mobile phone; Software for television; Tablet computers; Monitors for computer; Commercial monitors; Wearable computers; Computers; Printers for computer; LED Displays; Leather cases for tablet computer; Flip covers for tablet computer; Portable computers; Rechargeable batteries; Battery chargers; 3D spectacles; Digital cameras; Network monitoring cameras namely for surveillance; Television receivers; Displays for television receiver; Audio component system composed of surround sound speakers, loudspeakers, tuners, sound mixers, equalizer, audio recorders, radio receivers; Apparatus for recording, transmission or reproduction of sound or images; Earphones; DVD players; Portable multimedia players.’

– Class 14: ‘Watches; Parts and fittings for watches; Wrist watches; Electronic clocks and watches; Bracelets (jewelry); Watchbands; Control clocks; Watches with the function of wireless communication; Watches that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Watchbands that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Bracelets that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Watches incorporating cameras and MP3 players, and that communicate data to smart phones and PDAs.’

4 By decision of 19 November 2015, the examiner rejected the application for registration on the ground that the mark applied for was caught by the grounds for refusal set out in Article 7(1)(b) and (c) and Article 7(2) of Regulation No 207/2009.

5 On 18 January 2016 the applicant brought an appeal before EUIPO against the examiner’s decision, under Articles 58 to 64 of Regulation No 207/2009.

6 By decision of 10 June 2016 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the appeal.

7 First, the Board of Appeal considered that the relevant public in the European Union was made up of both average consumers and of professionals in the electronics sector, who were English-speaking or had a basic knowledge of English, and whose level of attention ranged from normal to high, taking into account the technological nature and price of most of the goods concerned (paragraphs 33 to 37 of the contested decision).

8 Secondly, in the context of its assessment of the absolute ground for refusal under Article 7(1)(c) of Regulation No 207/2009, the Board of Appeal found that the sign applied for consisted of the combination of two English words, namely first ‘second’, meaning ‘alternate, additional, extra, [or] 1/60th minute of time’ and, second, ‘display’, meaning ‘a device capable of representing information visually, as on a cathode-ray tube screen’ (paragraphs 40 and 41 of the contested decision). Consequently, the sign applied for could be understood as meaning ‘an alternative display screen’ or, while less likely, ‘a device which shows seconds of time’. From the point of view of the relevant public, the combination of the words, ‘second’ and ‘display’ would be immediately and perfectly comprehensible and would be perceived as designating a device with an additional display or, possibly, a device showing the seconds passing. Given that there is no perceptible difference between the meaning of that combination and the mere sum of the two terms of which it is composed, it is not a neologism (paragraphs 43 and 60 of the contested decision). The Board of Appeal held, furthermore, that there was a sufficiently direct and specific link between the sign applied for and all the goods concerned, about which the sign informed the relevant public of the intended purpose and method of functioning. Confronted with the sign applied for, the relevant public would deduce, without going through any complex mental processes, that, either it designates goods that incorporate or are capable of incorporating an additional display or, possibly, a display specifically measuring seconds or goods that function by means of such displays, or it designates goods intended to be used in conjunction with such screens or goods necessary for the functioning of such displays (paragraphs 47 to 52 of the contested decision).

9 Third, as regards the absolute grounds for refusal set out in Article 7(1)(b) of Regulation No 207/2009, the Board of Appeal considered, essentially for the same reasons as those set out in paragraph 8 above, that the sign applied for was also devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009 (paragraphs 62 to 70 of the contested decision).

Forms of order sought

10 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO to pay the costs, including those incurred by the applicant before the Board of Appeal.

11 EUIPO contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

Law

12 In support of its action, the applicant puts forward three pleas in law, alleging infringement of Article 7(1)(c), infringement of Article 7(1)(b), and infringement of Article 75(3) of Regulation No 207/2009.

The first plea, alleging infringement of Article 7(1)(c) of Regulation No 207/2009

13 In the context of its first plea, alleging an infringement of Article 7(1)(c) of Regulation No 207/2009, the applicant alleges, in essence, that the Board of Appeal was wrong to hold that the sign applied for was descriptive. It did not, according to the applicant, take into account the average consumer’s perception and erred in limiting itself to the perception of professionals in the electronics sector. According to the applicant, the word ‘display’ has many different meanings, is primarily used as a verb and is not usually associated or combined with the word ‘second’. The word combination ‘second display’ is an expression that the applicant created and is too vague to be understood as a descriptive denomination of the goods concerned. Therefore, the assessment set out in paragraphs 42 and 43 of the contested decision is vitiated by error. Similarly, the Board of Appeal erred in law in finding, in paragraph 48 of the contested decision, that the sign applied for, as a whole, would be perceived by the relevant public as an informative expression, according to which the electronic devices within Class 9 and all the goods within Class 14 either consist of or incorporate (or are capable of incorporating) displays that integrate an extra screen or specifically measure seconds of time. Those characteristics are not, according to the applicant, ‘able to have an impact on the essential characteristic of the goods themselves’. As regards the other goods within Class 9, namely leather cases, flip covers, software and ancillary electronic devices, the applicant alleges, in particular, that it is not proven that those goods are used in connection or are compatible with the devices that include an extra screen and that the sign applied for is not descriptive of such a characteristic of the products since, in the mind of the relevant public, it is not capable of having a significant impact on an essential characteristic of the goods themselves. The conclusion set out in paragraphs 50 and 51 of the contested decision is therefore wrong in law. According to the applicant, the expression ‘second display’ is indeterminate, vague and unusual. As regards the sign applied for, it does not designate the goods at issue and its competitors do not need to use it to describe their own products. Moreover, EUIPO has registered similar word marks containing the word ‘display’ for products included within Class 9.

14 EUIPO disputes the applicant’s arguments and contends that this plea should be rejected.

15 Under Article 7(1)(c) of Regulation No 207/2009, trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service are not to be registered. In addition, Article 7(2) provides that paragraph 1 is to apply notwithstanding the fact that the grounds of non-registrability obtain in only part of the European Union.

16 The Court recalls that the public interest underlying Article 7(1)(c) of Regulation No 207/2009 is that of ensuring that descriptive signs relating to one or more characteristics of the goods or services in respect of which registration as a mark is sought may be freely used by all traders offering such goods or services (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31, and 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 37).

17 By using, in Article 7(1)(c) of Regulation No 207/2009, the terms ‘the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’, the EU legislature made it clear, first, that those terms must all be regarded as characteristics of goods or services and, second, that that list is not exhaustive, since any other characteristics of goods or services may also be taken into account (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 49).

18 The fact that the EU legislature chose to use the word ‘characteristic’ highlights the fact that the signs referred to in Article 7(1)(c) of Regulation No 207/2009 are merely those which serve to designate a property, easily recognisable by the relevant class of persons, of the goods or the services in respect of which registration is sought (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 50). Consequently, a sign can be refused registration on the basis of Article 7(1)(c) of Regulation No 207/2009 only if it is reasonable to believe that it will actually be recognised by the relevant class of persons as a description of one of those characteristics (judgment of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 22 and the case-law cited).

19 The case-law has also stated that, for the purposes of applying Article 7(1)(c) of Regulation No 207/2009, it is necessary to consider whether, from the viewpoint of the relevant public, there is a sufficiently direct and specific relationship between the sign for which registration as a mark is sought and the goods or services concerned, that enables that public immediately to perceive, without further thought, a description of those goods or services, or one of their characteristics (see, to that effect, the judgments of 28 June 2012, Lutz Marken v OHIM, C‑306/11 P, not published, EU:C:2012:401, paragraph 79, 14 May 2013, Unister v OHIM (fluege.de), T‑244/12, EU:T:2013:243, paragraph 18, and 19 April 2016, Spirig Pharma v EUIPO (Daylong), T‑261/15, not published, EU:T:2016:220, paragraph 19).

20 Furthermore, it should be recalled that for a trade mark which consists of a neologism or a word produced by a combination of elements to be regarded as descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009, it is not sufficient that each of its components may be found to be descriptive. The word or neologism itself must be found to be so. However, a trade mark consisting of a neologism or a word composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of the characteristics of those goods or services for the purposes of that provision, unless there is a perceptible difference between the neologism or the word and the mere sum of its parts. That assumes that, because of the unusual nature of the combination in relation to those goods or services, the neologism or word creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, with the result that the word is more than the sum of those parts. In that regard, an analysis of the term in question from the point of view of the relevant lexical and grammatical rules is also relevant (see judgments of 2 February 2012, skytron energy v OHIM (arraybox), T‑321/09, not published, EU:T:2012:49, paragraphs 27 and 28 and the case-law cited, and 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraphs 20 and 21 and the case-law cited).

21 Finally, it is not necessary that the sign in question actually be in use at the time of the application for registration in a way that is descriptive but it is sufficient that the sign could be used for such purposes for it to be caught by the absolute ground for refusal laid down in Article 7(1)(c) of Regulation No 207/2009 (see judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 38 and the case-law cited, 23 January 2014, NCL v OHIM (NORWEGIAN GETAWAY), T‑513/12, not published, EU:T:2014:24, paragraph 46, and 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 58 and the case-law cited).

22 In the present case, it suffices therefore that, according to at least one of its potential meanings, the sign applied for designates one of the characteristics of the goods at issue. It is therefore necessary to assess whether the sign applied for, which is composed of the two English words ‘second’ and ‘display’, is, from the viewpoint of the relevant public, descriptive of the goods at issue.

23 In the first place, as regards the determination of the relevant public, it is clear from paragraphs 33 and 36 to 38 of the contested decision that that public comprises both average consumers and professionals who are English-speaking or who have a basic knowledge of English, which is not in itself contested by the applicant. That conclusion is free of error and must be upheld.

24 Given that it suffices that a sign is descriptive for at least one part of the relevant public for its registration to be refused on the basis of Article 7(1)(c) of Regulation No 207/2009 (see, to that effect, the judgment of 18 November 2015, Research Engineering & Manufacturing v OHIM – Nedschroef Holding (TRILOBULAR), T‑558/14, not published, EU:T:2015:858, paragraph 22), it is necessary to reject the applicant’s argument that, since the goods are aimed at both average consumers and professionals, the Board of Appeal could not restrict itself to analysing the perception by professionals of the sign applied for but must also and in the first instance examine its perception by average consumers.

25 Furthermore, as regards the relevant public’s level of attention, that can vary depending on the category of goods or services at issue (see the judgment of 17 March 2016, Mudhook Marketing v OHIM (IPVanish), T‑78/15, not published, EU:T:2016:155, paragraph 49 and the case-law cited). In the present case, taking into account both the technological nature and the high price of most of the goods concerned, and the fact that they are not regularly purchased, the degree of attention of the average consumer of those goods can be considered, contrary to the submission made by the applicant in paragraph 8 of the application, as high (see, to that effect, the judgments of 13 October 2009, Deutsche Rockwool Mineralwoll v OHIM — Redrock Construction (REDROCK), T‑146/08, not published, EU:T:2009:398, paragraph 45, and of 8 September 2011, MIP Metro v OHIM — Metronia (METRONIA), T‑525/09, not published, EU:T:2011:437, paragraph 37 and the case-law cited). The same is true as regards professionals. On the other hand, some of the goods at issue may be purchased without consumers even paying particular attention to them, in particular when they are ‘inexpensive’ goods (see, to that effect, the judgment of 12 February 2015, Compagnie des montres Longines, Francillon v OHIM — Staccata (QUARTODIMIGLIO QM), T‑76/13, not published, EU:T:2015:94, paragraphs 34 and 35). Therefore the Board of Appeal was fully entitled to find that the level of attention of the relevant public ranged from normal to high (paragraphs 33 and 34 of the contested decision).

26 In the second place, as regards the structure and meaning of the sign applied for, it must be held that the Board of Appeal was correct to find that the expression ‘second display’ consisted of the combination of two English words namely, on the one hand, ‘second’, meaning ‘alternate, additional, extra, or 1/60th minute of time’ and, on the other hand, ‘display’, meaning ‘a device capable of representing information visually, as on a cathode-ray tube screen’, and that that combination of words is not a neologism, given that it could only be understood by the relevant public as the combination of those two words with a meaning that did not go beyond the meaning of the two words taken individually (paragraphs 41 and 43 of the contested decision).

27 The applicant cannot call that finding into question on the single ground, without providing additional explanations or proof by way of support, that the term ‘display’ is primarily used as a verb, is not usually associated or combined with the term ‘second’ and the general meaning of the sign applied for is vague. On the contrary, having regard to the clear meaning of words ‘second’ and ‘display’, recalled in paragraph 26 above and not in itself contested by the applicant, the Board of Appeal was fully entitled to find that the relevant public would immediately perceive the combination of those two words as designating an extra screen or, possibly, a device indicating the seconds as they pass (paragraphs 42 and 60 of the contested decision).

28 In the third place, as regards the relationship between the sign applied for and the goods at issue, it follows from the meanings of the sign applied for (see paragraphs 26 and 27 above) and the nature of the electronic goods included in Class 9 and of the goods within Class 14 covered by the sign applied for that the expression ‘second display’ is capable of describing the characteristics of the products that have an extra screen or, possibly, a screen measuring seconds, which integrates one or which function by means of one. As the Board of Appeal correctly observed, in paragraph 54 of the contested decision, and EUIPO observed in its defence, that finding applies equally to goods which do not currently have those characteristics, having regard to the fact that it is reasonable to envisage that such goods may be offered in the future (see, by analogy, judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 31, and of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 56).

29 As regards the other goods included in Class 9, namely leather covers, flip covers, software and ancillary electronic devices, the Board of Appeal correctly found, in essence, in paragraphs 50 to 52 of the contested decision, that those were ancillary goods and closely linked to the goods referred to in paragraph 28 above. Consequently, there is no error in the finding that the sign applied for is capable of describing goods intended to be used in combination with goods that have an extra screen or, possibly, a screen measuring the seconds that pass, which incorporate one or which function by means of one and, consequently, the relevant public will establish a direct and concrete link between the sign and those goods in that it designates their intended purpose and method of functioning. As EUIPO correctly submits, even when confronted for the first time with the sign applied for, the relevant public need not make any particular analysis in order to grasp that descriptive character.

30 It follows from the foregoing that, contrary to the applicant’s submission, the present case does not concern ‘a mark ... that is descriptive of a part incorporated into a product’, but a sign that is descriptive of the goods at issue themselves. Therefore, it is necessary to reject the vague and unsupported, even circular argument made by the applicant that the characteristics of the goods that have an extra screen or function because of such a screen, or are linked to a device that includes an extra screen, are not capable of having a significant impact on an essential characteristic of the goods at issue and that the public would need additional explanations.

31 It is also necessary to reject the applicant’s argument that its competitors do not need to use the sign applied for to describe their own goods and their ‘functional characteristics’. Article 7(1)(c) of Regulation No 207/2009 precludes registration of a descriptive mark even when there are more usual signs or indications for designating the same characteristics and regardless of the number of competitors who may have an interest in using the signs or indications of which the mark consists (see, by analogy, the judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 61). Furthermore, as recalled in paragraph 21 above, it is not necessary that the sign is in fact in use, at the time that registration is applied for, for the purpose of describing goods or their characteristics.

32 As to the brief reference made by the applicant to other similar EU marks containing the word ‘display’, it suffices to recall that, according to settled case-law, correctly applied by the Board of Appeal in paragraph 74 of the contested decision, whether a sign may be registered as an EU trade mark can only be assessed on the basis of Regulation No 207/2009, as interpreted by the EU judicature, and not on the basis of a previous practice of the Boards of Appeal (judgments of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47, and of 9 October 2002, Glaverbel v OHIM (Glass-sheet surface), T‑36/01, EU:T:2002:245, paragraph 35).

33 Consequently, it must be held that the Board of Appeal was correct to conclude that, from the viewpoint of the relevant public, the sign applied for was descriptive of the characteristics of the goods at issue for the purposes of Article 7(1)(c) of Regulation No 207/2009.

34 Accordingly, the first plea must be dismissed.

The second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009

35 In the context of its second plea in law, alleging a breach of Article 7(1)(b) of Regulation No 207/2009, the applicant submits, in essence, that the Board of Appeal did not show that the sign applied for, as a whole, did not allow the relevant public to distinguish its goods from those of its competitors.

36 The Commission disputes the applicant’s arguments and contends that this plea should be rejected.

37 According to settled case-law, it is sufficient that one of the absolute grounds for refusal within the meaning of Article 7(1) of Regulation No 207/2009 applies for the sign at issue not to be registrable as an EU trade mark (judgments of 19 September 2002, DKV v OHIM, C‑104/00 P, EU:C:2002:506, paragraph 29, and of 9 July 2008, Coffee Store v OHIM (THE COFFEE STORE), T‑323/05, not published, EU:T:2008:265, paragraph 49).

38 Furthermore, a word sign which is descriptive of characteristics of goods for the purposes of Article 7(1)(c) of Regulation No 207/2009 is, on that account, necessarily devoid of any distinctive character in relation to those same goods or services within the meaning of Article 7(1)(b) of that regulation (see judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 33 and 46 and the case-law cited, of 14 June 2007, Europig v OHIM (EUROPIG), T‑207/06, EU:T:2007:179, paragraph 47 and the case-law cited, and of 28 October 2016, LA TARTE TROPÉZIENNE v EUIPO (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ), T‑7/16, not published, EU:T:2016:638, paragraph 38).

39 It follows from the foregoing that the second plea in law cannot be upheld.

The third plea in law, alleging failure to state reasons for the purposes of the first sentence of Article 75 of Regulation No 207/2009

40 In its application the applicant submits that the Board of Appeal infringed the first sentence of Article 75 of Regulation No 207/2009 in that it ‘failed to substantiate its conclusion[s]’ regarding the descriptive character and the lack of distinctiveness of the sign applied for.

41 EUIPO contends that the present plea must be rejected as inadmissible because it does not satisfy the requirements of Article 177(1) of the Rules of Procedure of the General Court.

42 Without it being necessary to rule on the question of whether the present plea alleging a breach of the obligation to state reasons within the meaning of the first sentence of Article 75 of Regulation No 207/2009 and Article 296 TFEU, which is a plea based on public policy that the EU judicature is required to raise of its own motion (see the order of 9 February 2012, Deutsche Bahn v OHIM, C‑45/11 P, not published, EU:C:2012:69, paragraphs 56 and 57 and the case-law cited), fails to satisfy the requirements under Article 177(1)(d) of the Rules of Procedure, it suffices to hold that it cannot in any way succeed.

43 It is settled case-law that the statement of reasons required by Article 296 EC must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. 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 EC 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 (judgments of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65, 15 November 2011, Abbott Laboratories v OHIM (RESTORE), T‑363/10, not published, EU:T:2011:662, paragraph 73, and 23 January 2014, Novartis v OHIM (CARE TO CARE), T‑68/13, not published, EU:T:2014:29, paragraph 27).

44 Where the same ground of refusal is given for a homogeneous category of goods or services, EUIPO may give general reasoning for all of the goods or services concerned (see, to that effect, the order of 18 March 2010, CFCMCEE v OHIM, C‑282/09 P, EU:C:2010:153, paragraphs 37, 38 and 40, and judgment of 17 October 2013, Isdin v Bial-Portela, C‑597/12 P, EU:C:2013:672, paragraphs 26 and 27).

45 In the present case, the reasoning of the Board of Appeal is set out clearly and unequivocally in paragraphs 8 to 79 of the contested decision. The Board of Appeal grouped the goods concerned into six different categories and set out the reasons why, in respect of each of those categories, it considered that there was a sufficiently direct and concrete link between the products included within those respective categories and the sign applied for (paragraphs 48 to 51 of the contested decision). The applicant has not disputed either the grouping into categories or the homogeneity of the goods contained within those categories. Nor has it indicated the specific parts of the contested decision that it considers not to have been sufficiently well-reasoned according to the principles stemming from the case-law recalled in paragraphs 43 and 44 above.

46 On the contrary, it must be held that the reasons set out in the contested decision reproduced in the paragraphs of that decision referred to above enabled the applicant to know the grounds for the rejection of its application for registration of its mark and to contest their merits. In the same way, the Board of Appeal’s reasoning enabled the Court to carry out its review regarding the first and second pleas in law, as is shown in paragraphs 13 et seq. above.

47 Therefore, the third ground of appeal should also be rejected as unfounded.

48 It follows from all the above considerations that the appeal must be dismissed in its entirety.

Costs

49 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 (Third Chamber)

hereby:

1. Dismisses the action;

2. Orders LG Electronics, Inc. to pay the costs.





Frimodt Nielsen Kreuschitz Półtorak

Delivered in open court in Luxembourg on 14 June 2017.





E. Coulon V. Tomljenović