Judgment of the General Court (Second Chamber) of 8 December 2021 –

Talleres de Escoriaza v EUIPO – Salto Systems (KAAS KEYS AS A SERVICE)

(Case T‑294/20)

(EU trade mark – Invalidity proceedings – EU word mark KAAS KEYS AS A SERVICE – Absolute grounds for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) – No distinctive character – Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001) – Signs or indications which have become customary – Article 7(1)(d) of Regulation No 207/2009 (now Article 7(1)(d) of Regulation 2017/1001) – Obligation to state reasons – Right to be heard – Article 94(1) of Regulation 2017/1001)

1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Re-evaluation of the facts in the light of evidence produced for the first time before it – Not included (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 23)

2. EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU (Art. 296, second para., TFEU; European Parliament and Council Regulation 2017/1001, Art. 94(1), first sentence) (see paras 35, 36)

3. EU trade mark – Procedural provisions – Decisions of the Office – Observance of the rights of the defence – Scope of the principle (European Parliament and Council Regulation 2017/1001, Art. 94(1), second sentence) (see paras 43, 44)

4. 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 – Aim – Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 56)

5. 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 nature of a sign – Criteria (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see paras 57, 58, 65)

6. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Registration contrary to Article 7 of Regulation No 207/2009 – Relevant date for the examination of an absolute ground for nullity – Date of lodging the application for registration – Taking into account of evidence subsequent to that date – Whether permissible (Council Regulation No 207/2009, Art. 7(1)) (see paras 60, 61)

7. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Word mark KAAS KEYS AS A SERVICE (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 62-64, 72-74, 81, 90)

8. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Marks consisting exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade – Customary character – Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(d)) (see paras 98-101)

9. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks consisting exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade – Word mark KAAS KEYS AS A SERVICE (Council Regulation No 207/2009, Arts 7(1)(d) and 52(1)(a)) (see para. 106)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 February 2020 (Case R 1363/2019-4), relating to invalidity proceedings between Talleres de Escoriaza and Salto Systems.

Operative part

The Court:

1. Dismisses the action;