Judgment of the General Court (Second Chamber) of 15 September 2017 — Lidl Stiftung v EUIPO — Primark Holdings (LOVE TO LOUNGE)

(Case T‑305/16)

(EU trade mark — Invalidity proceedings — EU word mark LOVE TO LOUNGE — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Descriptiveness — Article 7(1)(c) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009 — Examination of the facts by EUIPO of its own motion — Article 76 of Regulation No 207/2009)

1. 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 22, 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 207/2009, Art. 7(1)(c)) (see para. 45)

3. 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—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 46, 47)

4. 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—Word mark LOVE TO LOUNGE (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 49, 56, 76, 92-95)

5. 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 (Council Regulation No 207/2009, Arts 7 and 52(1)(a)) (see para. 67)

6. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Concept—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 82, 83)

7. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Distinctive character—Application of specific criteria for assessment—Not permissible (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 84-86)

8. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 87, 89)

9. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 88)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 9 March 2016 (Case R 489/2015-2), relating to invalidity proceedings between Lidl Stiftung and Primark Holdings.

Operative part

The Court:

1. Dismisses the action;