Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

21 May 2025 ([\*](#Footnote*))

( EU trade mark – Invalidity proceedings – EU figurative mark representing chevrons between two parallel lines – Absolute ground for invalidity – No distinctive character – Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) – Examination of the grounds for invalidity by the Grand Board of Appeal )

In Case T‑133/24,

**KnitPro International,** established in Jaipur (India), represented by S. Malynicz, Barrister, and D. Stone, Solicitor,

applicant,

v

**European Union Intellectual Property Office (EUIPO),** represented by D. Stoyanova-Valchanova and M. Eberl, acting as Agents,

defendant,

the other party to the proceedings before the Grand Board of Appeal of EUIPO, intervener before the General Court, being

**135 Kirkstall, Inc.,**  established in Vancouver, Washington (United States), represented by V. von Bomhard and J. Fuhrmann, lawyers,

THE GENERAL COURT (Sixth Chamber),

composed of M.J. Costeira, President, U. Öberg and E. Tichy‑Fisslberger (Rapporteur), Judges,

Registrar: G. Mitrev, Administrator,

having regard to the written part of the procedure,

further to the hearing on 6 February 2025,

gives the following

**Judgment**

1        By its action under Article 263 TFEU, the applicant, KnitPro International, seeks, in essence, the partial annulment and alteration of the decision of the Grand Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 December 2023 (Case R 2672/2017-G (RENV)) (‘the contested decision’).

**Background to the dispute**

2        On 15 February 2010, the predecessor in law to the applicant, M/S. Indeutsch International, 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) (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

3        Registration as a mark was sought for the figurative sign reproduced below:

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)

4        That sign was accompanied by the following description:

‘the mark consist[s] of a repeated geometric design.’

5        Registration of that mark was sought for ‘knitting needles’ and ‘crochet hooks’ in Class 26 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.

6        That mark was published in *Community Trade Marks Bulletin*  No 74/2010 of 26 April 2010 and registered on 10 August 2010.

7        On 9 January 2013, Crafts Americana Group, Inc., the former name of the intervener, 135 Kirkstall, Inc., filed with EUIPO an application for a declaration of invalidity in respect of that mark pursuant to Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(a) and (b) of that regulation (now, respectively, Article 59(1)(a) and Article 7(1)(a) and (b) of Regulation 2017/1001).

8        On 7 May 2014, the Cancellation Division dismissed the application for a declaration of invalidity (‘the decision of the Cancellation Division’). In particular, the Cancellation Division found, first, that the mark at issue met the requirements of Article 7(1)(a) of Regulation No 207/2009. Second, it concluded that the mark at issue had distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009.

9        On 14 July 2014, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

10      By decision of 5 November 2015 (‘the first decision of the Board of Appeal’), the First Board of Appeal annulled the decision of the Cancellation Division on the ground that the mark at issue lacked distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009.

11      By application lodged at the General Court Registry on 21 January 2016, the predecessor in law to the applicant brought an action for the annulment of the first decision of the Board of Appeal.

12      By judgment of 21 June 2017, *M/S. Indeutsch International* v *EUIPO – Crafts Americana Group (Representation of chevrons between two parallel lines)* (T‑20/16, EU:T:2017:410), the Court annulled the first decision of the Board of Appeal. It is apparent from paragraphs 16 and 41 to 47 of that judgment that the Court held that, by relying on the fact that a pattern in the form of multicoloured chevrons appeared on the surface of the goods of the predecessor in law to the applicant in order to examine the distinctive character of the appearance of those goods and thus basing its assessment on the mark at issue as it had been used and not as it had been registered, the Board of Appeal had taken account of substantially altered characteristics of that mark. The Court took the view that that fact constituted an infringement of Article 7(1)(b) of Regulation No 207/2009.

13      Following the judgment of 21 June 2017, *Representation of chevrons between two parallel lines* (T‑20/16, EU:T:2017:410), the case was assigned to the Grand Board of Appeal of EUIPO.

14      By decision of 13 December 2019 (‘the second decision of the Board of Appeal’), the Grand Board of Appeal annulled the decision of the Cancellation Division and declared that the mark at issue had been registered in breach of Article 7(1)(b) of Regulation No 207/2009. It also stated that there was no need to examine whether the mark at issue fell within the scope of Article 7(1)(a) of that regulation. Lastly, it remitted the case back to the Cancellation Division to enable that division to rule on whether the mark at issue had any distinctive character acquired through use for the purposes of Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001).

15      By application lodged at the Court Registry on 25 February 2020, the applicant sought the annulment of the second decision of the Board of Appeal.

16      By judgment of 6 October 2021, *M/S. Indeutsch International* v *EUIPO – 135 Kirkstall (Representation of chevrons between two parallel lines)* (T‑124/20, not published, EU:T:2021:668), the Court annulled the second decision of the Board of Appeal. It follows from paragraphs 63 to 72 and 77 of that judgment that the Court found, in essence, that the Grand Board of Appeal had failed to rule on one of the two grounds on which the application for a declaration of invalidity was based, namely the alleged infringement of Article 7(1)(a) of Regulation No 207/2009, which resulted in the annulment of that decision.

17      Following the judgment of 6 October 2021, *Representation of chevrons between two parallel lines* (T‑124/20, not published, EU:T:2021:668), the Presidium of the Boards of Appeal decided to maintain the case with the Grand Board of Appeal.

18      By the contested decision, the Grand Board of Appeal again annulled the decision of the Cancellation Division and declared that the mark at issue had been registered in breach of Article 7(1)(b) of Regulation No 207/2009 (see paragraphs 68 to 93 of the contested decision), while rejecting the ground of the application for a declaration of invalidity relating to Article 7(1)(a) of that regulation (see paragraphs 56 to 67 of the contested decision).

19      In particular, the Grand Board of Appeal found, first, in paragraph 76 of the contested decision, that the mark at issue was a simple geometric figure consisting of five representations of a chevron, or an abstract geometric shape composed of a repetitive design consisting of two parallel lines enclosing clearly delineated chevrons, all in black and white. Second, it took the view, in essence, in paragraphs 78 to 87 of the contested decision, that the mark at issue did not depart significantly from the norms or customs of the knitting needles and crochet hooks sector, with the result that it did not fulfil its essential function of indicating commercial origin. Third, it also observed, in paragraphs 88 to 92 of the contested decision, that, on account of the simplicity and decorative nature of the mark at issue, that mark was devoid of distinctive character. Moreover, the Grand Board of Appeal, in paragraphs 94 and 95 of the contested decision, remitted the case back to the Cancellation Division as regards the question whether the mark at issue had any distinctive character acquired through use for the purposes of Article 7(3) of Regulation No 207/2009.

**Forms of order sought**

20      The applicant claims that the Court should:

–        annul the contested decision;

–        declare that the action is manifestly well founded;

–        in the alternative, dismiss the application for a declaration of invalidity in so far as it is based on Article 7(1)(a) and (b) of Regulation No 207/2009;

–        order EUIPO and the intervener to pay the costs.

21      EUIPO contends that the Court should:

–        dismiss the action in its entirety;

–        order the applicant to pay the costs incurred by EUIPO in the event that an oral hearing is convened.

22      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs, including those incurred by the intervener.

23      As was noted in the minutes of the hearing, in response to a question put by the Court, the applicant withdrew, first, its second head of claim in its entirety, and, second, its first and third heads of claim in so far as they were based on Article 7(1)(a) of Regulation No 207/2009. It also confirmed that, by its first head of claim, it sought only the annulment of the contested decision in so far as it upheld the application for a declaration of invalidity on the basis of Article 7(1)(b) of that regulation.

**Law**

***Preliminary observations***

24      Given the date on which the application for registration at issue was filed, namely 15 February 2010, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009, in the version applicable prior to its amendment by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation No 207/2009 and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21) (see, to that effect, order of 5 October 2004, *Alcon* v *OHIM*, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, *Gugler France* v *Gugler and EUIPO*, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

25      Accordingly, in the present case, the references made by the applicant to the substantive rules without specifying the applicable law in its application must be understood as referring to the provisions of Regulation No 207/2009.

***The** **single** **plea, alleging infringement of** **Article 7****(1)(b) of Regulation** **No 2****07/2009***

26      In support of its action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 7(1)(b) of Regulation No 207/2009.

27      That single plea is divided into five complaints by which the applicant claims, first, that the Grand Board of Appeal wrongly relied on the actual goods rather than on the mark at issue as registered and that, consequently, when assessing the distinctive character of the mark at issue, it applied an incorrect test as to whether the mark at issue departed significantly from the norms and customs of the sector concerned; second, that, even if such a test were applicable, the mark at issue would have satisfied that test; third, that the Grand Board of Appeal made an error with regard to the relevant public’s perception of the mark at issue; fourth, that the Grand Board of Appeal wrongly established that the mark was purely decorative and thus, devoid of distinctive character and, in any event, that the decorative nature of the mark at issue does not diminish its distinctive character; and, fifth, that the contested decision is contradictory in so far as the Grand Board of Appeal stated that the mark was both sufficiently ornamental to be regarded as decorative and yet too simple to be regarded as distinctive.

28      EUIPO, supported by the intervener, disputes the applicant’s arguments.

29      The Court notes that the applicant disputes neither the Grand Board of Appeal’s findings relating to Article 7(1)(a) of Regulation No 207/2009 nor the referral, to the Cancellation Division, of the question whether any distinctive character was acquired through use for the purposes of Article 7(3) of that regulation (see paragraphs 18 and 19 above). Therefore, the Court must only review whether the Grand Board of Appeal correctly found that the mark at issue lacked distinctive character under Article 7(1)(b) of Regulation No 207/2009, taking into account the requirements arising from the judgment of 21 June 2017, *Representation of chevrons between two parallel lines* (T‑20/16, EU:T:2017:410).

30      In the present case, it is common ground, as the Grand Board of Appeal correctly found in paragraph 76 of the contested decision, that the figurative mark at issue is a simple geometric figure, consisting of five representations of a chevron, or an abstract geometric shape made up of a repetitive design consisting of two parallel lines enclosing clearly delineated chevrons, all in black and white.

31      In that regard, it should be borne in mind that, in accordance with Article 52(1)(a) of Regulation No 207/2009, an EU trade mark is to be declared invalid, inter alia, on application to EUIPO, where it has been registered contrary to the provisions of Article 7 of that regulation.

32      Article 7(1)(b) of Regulation No 207/2009 provides that trade marks which are devoid of any distinctive character are not to be registered.

33      For a trade mark to possess distinctive character for the purposes of Article 7(l)(b) of Regulation No 207/2009, it must serve to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (see judgment of 21 January 2010, *Audi* v *OHIM*, C‑398/08 P, EU:C:2010:29, paragraph 33 and the case-law cited).

34      The concept of public interest underlying Article 7(1)(b) of Regulation No 207/2009 is, manifestly, indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the goods or services covered by the mark to consumers or end users by enabling them, without any possibility of confusion, to distinguish the goods or service from others which have another origin (see, to that effect, judgment of 29 April 2004, *Henkel* v *OHIM*, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 48).

35      The distinctive character of a mark, for the purposes of Article 7(1)(b) of Regulation No 207/2009, must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the perception of the relevant public (see judgment of 29 April 2004, *Henkel* v *OHIM*, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 35 and the case-law cited).

36      It is in the light of those considerations that it is necessary to examine whether, as the applicant claims, the Grand Board of Appeal infringed Article 7(1)(b) of Regulation No 207/2009 by finding that the mark at issue was devoid of any distinctive character.

*The relevant public*

37      It follows from paragraphs 85 and 90 of the contested decision that the Grand Board of Appeal, in essence, based its assessments on a public consisting of average consumers, who are reasonably well informed and reasonably observant and circumspect, of the general public and specialists. Those findings of the Grand Board of Appeal are not disputed by the applicant.

*The taking into account of the mark at issue as registered*

38      In the first part of its first complaint of the single plea, the applicant complains that the Grand Board of Appeal made the same error as the First Board of Appeal, which led to the annulment of the first decision of the Board of Appeal by judgment of 21 June 2017, *Representation of chevrons between two parallel lines* (T‑20/16, EU:T:2017:410), namely having relied on the goods as marketed rather than on the mark at issue as registered.

39      EUIPO, supported by the intervener, disputes the applicant’s arguments.

40      In the present case, first, the Grand Board of Appeal, in paragraph 77 of the contested decision, correctly adopted the principle that the assessment of the distinctive character of the mark at issue within the meaning of Article 7(1)(b) of Regulation No 207/2009 had to be based on the impression of the graphic representation of that mark, as filed and registered, as required by the Court in the judgment of 21 June 2017, *Representation of chevrons between two parallel lines* (T‑20/16, EU:T:2017:410, paragraph 45).

41      Second, in its specific assessment of the distinctive character of the mark at issue, the Grand Board of Appeal found, in paragraph 84 of the contested decision, that the representation of that mark as filed did not disclose any three-dimensional structure in the sense of a surface. That Board of Appeal stated, in paragraph 89 of the contested decision, that only the black and white impression of the graphic representation of that mark had to be assessed, and not its actual or potential use in colours. It assessed, in essence, in paragraphs 91 and 92 of the contested decision, that mark as a geometrically exact repetition of a simple geometric figure. Thus, the Grand Board of Appeal relied solely on the essential characteristics of the mark at issue as registered.

42      Third, as regards the findings relating to the goods in question, in paragraphs 85 and 86 of the contested decision, the Grand Board of Appeal took into consideration the fact that those goods were long and thin and that those goods were commonly made from different materials. In accordance with the case-law referred to in paragraph 35 above, that Board of Appeal correctly assessed the nature of the goods in question.

43      Moreover, contrary to what the applicant claims, the Grand Board of Appeal also found, in paragraphs 85 and 90 of the contested decision, that the mark at issue was intended to be applied to the goods in question, to their packaging and to promotional material. That Board of Appeal cannot be criticised for taking into consideration the likely methods of use of the mark at issue. The distinctive character of a sign must be examined by taking into account all the relevant facts and circumstances, including all the likely types of use of the mark applied for, namely those which are significant in the practice of the economic sector in question (see, by analogy, judgment of 12 September 2019, *Deutsches Patent- und Markenamt (#darferdas?)*, C‑541/18, EU:C:2019:725, paragraph 33).

44      The Grand Board of Appeal therefore confined itself to taking into account the likely methods of use of the mark at issue having regard to the nature of the goods in question *in abstracto*.

45      Therefore, contrary to the First Board of Appeal in the first decision of the Board of Appeal, which had wrongly taken into consideration patterns on goods which were coloured and were distributed at irregular intervals (judgment of 21 June 2017, *Representation of chevrons between two parallel lines*, T‑20/16, EU:T:2017:410, paragraph 43), the Grand Board of Appeal did not rely, in the contested decision, on the examples of the goods in question from EUIPO’s file.

46      Consequently, contrary to what the applicant claims, the Grand Board of Appeal did indeed rely on the impression of the graphic representation of the mark at issue as filed and registered and on the likely methods of use of that mark having regard to the nature of the goods in question. Consequently, it complied with the requirements arising from the judgment of 21 June 2017, *Representation of chevrons between two parallel lines* (T‑20/16, EU:T:2017:410).

47      The first part of the applicant’s first complaint must therefore be rejected as unfounded.

*The applicability of the case-law relating to marks that are indissociable from the appearance of the goods concerned*

48      In the second part of its first complaint of the single plea, the applicant complains that the Grand Board of Appeal wrongly applied, when assessing the distinctive character of the mark at issue, an incorrect test as to whether that mark departed significantly from the norms or customs of the sector concerned. The applicant submits that the mark at issue is not a figurative mark representing the appearance of the goods in question which would have enabled the Grand Board of Appeal to apply that test. The applicant states that the visual representation of the mark at issue does not have the appearance of the goods in question and that its description refers solely to the pattern itself, without indicating how that mark would be applied to those goods.

49      EUIPO, supported by the intervener, disputes the applicant’s arguments.

50      The Grand Board of Appeal, in paragraph 81 of the contested decision, found, in essence, that, where the sign was indistinguishable from the appearance of the product or a part of the product, it had to depart significantly from the norms or customs of the sector in order to fulfil its essential function of indicating origin.

51      According to the case-law, the criteria for assessing distinctiveness are the same for the various categories of trade mark (see order of 28 June 2004, *Glaverbel* v *OHIM*, C‑445/02 P, EU:C:2004:393, paragraph 23 and the case-law cited).

52      However, when those criteria are applied, account must be taken of the fact that the perception of the average consumer is not necessarily the same in relation to a mark consisting of the appearance of the goods themselves as it is in relation to a word or figurative mark consisting of a sign which is independent of the appearance of the goods it designates. Average consumers are not in the habit of making assumptions about the origin of goods on the basis of their shape in the absence of any graphic or word element, with the result that it could prove more difficult to establish distinctiveness in relation to a mark consisting of the appearance of the goods themselves (see judgment of 24 November 2016, *Azur Space Solar Power* v *EUIPO (Representation of white lines and bricks on a black background)*, T‑578/15, not published, EU:T:2016:674, paragraph 15 and the case-law cited).

53      In those circumstances, the more closely the shape for which registration is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 (see, to that effect, judgment of 7 October 2004, *Mag Instrument* v *OHIM*, C‑136/02 P, EU:C:2004:592, paragraph 31).

54      Consequently, only a mark which departs significantly from the norms or customs of the sector and thereby fulfils its essential function of identifying origin is not devoid of any distinctive character for the purposes of that provision (see judgment of 24 November 2016, *Representation of white lines and bricks on a black background*, T‑578/15, not published, EU:T:2016:674, paragraph 17 and the case-law cited).

55      The decisive factor governing the applicability of the case-law cited in paragraphs 51 to 54 above is not the classification of the mark concerned as figurative, three-dimensional or other, but the fact that that mark is indistinguishable from the appearance of the product itself. Accordingly, that case-law applies, in addition to three-dimensional marks, to figurative marks consisting of a two-dimensional representation of the product designated (see, to that effect, judgment of 30 March 2022, *Daimler* v *EUIPO (Representation of three-pronged elements on a black background IV)*, T‑279/21, not published, EU:T:2022:196, paragraph 20).

56      More specifically, the case-law referred to in paragraphs 51 to 54 above is applicable where, once confronted with a three-dimensional, figurative or other mark as regards the goods concerned, a non-negligible part of the relevant public perceives the mark as a representation of the shape of those goods (see judgment of 26 June 2024, *beckberg* v *EUIPO (Shape of a hatching chick)*, T‑595/23, not published, EU:T:2024:423, paragraph 28 and the case-law cited).

57      In addition, that is also the case for a figurative mark consisting of a part of the shape of the product that it represents, inasmuch as the relevant public will immediately and without further thought perceive it as a representation of a particularly interesting or attractive detail of the product in question, rather than as an indication of its commercial origin (judgment of 19 September 2012, *Fraas* v *OHIM (Tartan pattern in dark grey, light grey, black, beige, dark red and light red)*, T‑50/11, not published, EU:T:2012:442, paragraph 43).

58      In the present case, in the light of the considerations arising from paragraphs 42 to 44 above, it is necessary to examine whether, in cases where the mark at issue will be applied to the goods in question, the Grand Board of Appeal correctly applied the case-law relating to marks that are indissociable from the appearance of the goods concerned referred to in paragraphs 51 to 57 above.

59      As regards the characteristics of the mark at issue, the Court has already held that that mark is an abstract geometric shape composed of a repetitive design consisting of two parallel lines enclosing clearly delineated chevrons, all in black and white (judgment of 21 June 2017, *Representation of chevrons between two parallel lines*, T‑20/16, EU:T:2017:410, paragraph 44).

60      Concerning the nature of the goods in question, the Grand Board of Appeal correctly found, in paragraphs 85 to 87 of the contested decision, that although those goods, consisting of knitting needles and crochet hooks, were long and thin, they were, however, not standardised, but were made from different materials and in different textures.

61      Accordingly, in view of the inherent characteristics of the mark at issue and the nature of the goods in question, that mark may be used to be affixed to the surface of those goods as a surface pattern (see, to that effect, judgment of 13 September 2018, *Birkenstock Sales* v *EUIPO*, C‑26/17 P, EU:C:2018:714, paragraph 41).

62      Therefore, where the relevant public will be confronted with the mark at issue affixed to the surface of the goods in question, that public will be able to perceive the mark as being indissociable from the appearance of a part of the shape of those goods.

63      In addition, contrary to what the applicant claimed at the hearing, in order for the case-law cited in paragraphs 51 to 57 above to apply, it is sufficient that the mark at issue is indissociable from a part of the shape of the goods in question when it is affixed to those goods.

64      In those circumstances, the Grand Board of Appeal correctly found, in essence, in paragraphs 85 to 87 of the contested decision, that, where the mark at issue was affixed to the goods in question, it was indissociable from the appearance of a part of the shape of those goods. Thus, contrary to what the applicant claims, it was entitled, in paragraphs 77 to 87 of the contested decision, without making an error of law, to assess the distinctive character of that mark as registered by applying the case-law cited in paragraphs 51 to 57 above, in particular, by examining to what extent that mark departed significantly from the norms or customs of the sector in order to fulfil its essential function of indicating origin.

65      The second part of the applicant’s first complaint must therefore be rejected as unfounded.

*The significant departure of the mark at issue from the norms or customs of the sector concerned*

66      In its second complaint of the single plea, the applicant submits that, even if the mark at issue were perceived as the graphic representation of the shape of the goods in question, the Grand Board of Appeal should have concluded that that mark satisfied the test that the mark at issue must depart from the norms or customs of the sector in order for its commercial origin to be identified. The applicant argues that the mark at issue consists of a pattern that is striking, attractive and capable of being held in the mind, with the result that it departed sufficiently from the norms or customs of the sector at the time of the application for registration and therefore had at least some degree of distinctiveness.

67      EUIPO, supported by the intervener, disputes the applicant’s arguments.

68      As follows from the case-law cited in paragraphs 51 to 57 above, a mark in respect of which the appearance of the shape is indissociable from that of the goods concerned is devoid of any distinctive character, within the meaning of Article 7(1)(b) of Regulation No 207/2009, if it does not depart significantly from the norms or customs of the sector concerned.

69      It is necessary to examine in the present case whether, as the applicant submits, the Grand Board of Appeal was wrong to find that the mark at issue did not depart significantly from the norms or customs of the sector concerned.

70      The Grand Board of Appeal, in paragraph 87 of the contested decision, in essence, found that it would be unlikely that the goods in question containing the graphic representation of the mark at issue as filed and registered would be perceived as having an appearance significantly different from the norms or customs of the sector concerned, given that they showed only small variations from other goods available on the market.

71      In particular, in paragraphs 85 to 86 of the contested decision, it relied, in essence, on examples of the goods in question on the market, made from different materials and in different textures, in order to take the view that the characteristics of the mark at issue were neither special nor surprising in the sector of the goods covered by that mark. It also observed, in paragraph 87 of the contested decision, that average consumers did not require that the goods in question be standardised. Furthermore, in paragraph 86 of the contested decision, it took the view that, if the goods in question were made of wood, the mark at issue corresponded to a typical wood grain pattern and would be perceived as such by the relevant public.

72      In that regard, as has been pointed out in paragraph 34 above, the essential function of a trade mark is to guarantee the identity of the origin of the goods covered by that mark to consumers or end users.

73      There must therefore be certain characteristics of the sign at issue that can be easily and instantly memorised by the relevant public and would make it possible for that sign to be perceived immediately as an indication of the commercial origin of the goods concerned (see, to that effect, judgment of 5 April 2017, *Anta (China)* v *EUIPO (Representation of two lines forming an acute angle)*, T‑291/16, not published, EU:T:2017:253, paragraph 31 and the case-law cited).

74      Moreover, it must always be determined whether a mark permits the average consumer of the product concerned, who is reasonably well informed and reasonably observant and circumspect, to distinguish that product from those of other undertakings without conducting an analytical examination and without paying particular attention (judgment of 12 December 2019, *EUIPO* v *Wajos*, C‑783/18 P, not published, EU:C:2019:1073, paragraph 25 and the case-law cited).

75      In the present case, first, as follows from EUIPO’s file, it is common that the goods in question, namely knitting needles and crochet hooks, have a long and thin shape, consist of different materials and textures and do not have a uniform appearance. The goods covered by the mark at issue, made from different materials and in different textures, also have a long and thin shape.

76      Second, if the applicant claims that the mark at issue is distinctive, despite EUIPO’s analysis, it is for the applicant to provide specific and substantiated information to show that that mark has an inherent distinctive character (see, to that effect, judgment of 15 May 2014, *Louis Vuitton Malletier* v *OHIM*, C‑97/12 P, not published, EU:C:2014:324, paragraph 72). However, it does not put forward any specific argument or evidence to substantiate its claim that the mark at issue is striking and remarkable and to prove that that mark departs significantly from the norms or customs of the sector concerned.

77      Third, even assuming that the placement of the mark at issue on the goods in question or the fact that, unlike those goods, the goods previously present on the market did not bear any pattern constitutes a significant departure from the norms and customs of the sector, the fact remains that that mark cannot be easily and instantly remembered by the relevant public. Thus, it cannot fulfil the essential function of indicating commercial origin, within the meaning of the case-law referred to in paragraphs 72 to 74 above.

78      In those circumstances, the Grand Board of Appeal was right, in paragraph 87 of the contested decision, to find, in essence, that it would be unlikely that the graphic representation of the mark at issue as registered would be perceived as having a significantly different appearance from the norms or customs of the sector concerned.

79      The applicant’s second complaint must therefore be rejected as unfounded.

*The perception of the mark at issue as representing wood grain*

80      In its third complaint of the single plea, the applicant criticises the Grand Board of Appeal for finding that, at the time of the application for registration, the mark at issue would be perceived as the representation of wood grain. It claims that the goods in question may be made from various materials and that it is for the applicant for a declaration of invalidity to adduce evidence that, at that time, those goods were made from wood. Moreover, the applicant argues that the impression of a wood grain pattern is different on a metal knitting needle or a plastic knitting needle, with the result that, applied to such a knitting needle, that pattern has distinctive character. The applicant adds, in any event, that the chevron pattern of the mark at issue does not correspond to wood grain since that pattern is linear and symmetrically spaced.

81      EUIPO, supported by the intervener, disputes the applicant’s arguments.

82      In paragraph 86 of the contested decision, the Grand Board of Appeal found that, if knitting needles or crochet hooks were made of wood, the chevron pattern would correspond to a typical wood grain pattern and would be perceived as such, without considering it necessary to conclude that that graphic representation was equal to a wood grain structure.

83      Contrary to what the applicant claims, those findings of the Grand Board of Appeal must be upheld.

84      First, on account of the nature of the goods in question and notwithstanding the perfectly linear and symmetrically spaced shape of the mark at issue, as EUIPO contends, the relevant public will not be prevented from perceiving that mark as resembling a wood grain structure.

85      Second, the applicant appears to accept that, if the goods in question are made of wood or of materials similar to wood, a wood grain pattern could be regarded as devoid of distinctive character.

86      Third, contrary to what the applicant claims, the Grand Board of Appeal, in paragraph 86 of the contested decision, in essence, correctly found, relying on the observations of the predecessor in law to the applicant, that the goods in question are made from various materials, namely wood and plastic, bamboo or other like materials.

87      In any event, even assuming that the mark at issue cannot be regarded as representing wood grain if the goods in question are not made of wood or of materials similar to wood, it is sufficient to recall that the norms or customs of the sector concerned cannot be reduced to the single shape that is statistically the most widespread, but include all of the shapes that the consumer is used to seeing on the market (see judgment of 26 June 2024, *Shape of a hatching chick*, T‑595/23, not published, EU:T:2024:423, paragraph 58 and the case-law cited).

88      Accordingly, the applicant’s third complaint must be rejected.

*The decorative and simple nature of the mark at issue*

89      By its fourth and fifth complaints of the single plea, the applicant criticises, in essence, the Grand Board of Appeal’s assessments that the mark at issue would be perceived by the relevant public as a simple, ornamental element and is therefore devoid of distinctive character. According to the applicant, although the mark at issue does have some decorative aspects, those aspects do not call into question its distinctive character. The applicant refers to the example of the chequerboard pattern and of the monogram of Louis Vuitton, as well as to the LV logo of Louis Vuitton, the swoosh of Nike, the three stripes of Adidas and the sign of Gucci to claim that being attractive does not call into question the distinctive character of a mark. On the contrary, according to the applicant, the decorative nature of a mark contributes to establishing its distinctive character. Furthermore, the applicant observes that the complaint that a mark is visibly attractive is relevant for assessing the substantial value given to the goods within the meaning of Article 7(1)(e)(iii) of Regulation No 207/2009 (now Article 7(1)(e)(iii) of Regulation 2017/1001), but that that provision does not apply to figurative marks and should therefore not be taken into consideration in the present case.

90      Moreover, the applicant submits that the contested decision is contradictory in so far as, after establishing the decorative nature of the mark at issue by taking account of actual goods, the Grand Board of Appeal found that that mark was too simple to be regarded as distinctive.

91      EUIPO, supported by the intervener, disputes the applicant’s arguments.

92      As regards the applicant’s criticism of the Grand Board of Appeal’s assessments that the mark at issue is regarded as being both excessively decorative and excessively simple at the same time (see paragraphs 89 and 90 above), it is necessary to examine whether the Grand Board of Appeal correctly assessed the decorative and simple nature of the mark at issue.

93      In that regard, it follows from the case-law that a sign which is excessively simple and is constituted by a basic geometrical figure, such as a circle, a line, a rectangle or a conventional pentagon, is not, in itself, capable of conveying a message which consumers will be able to remember, with the result that they will not regard it as a trade mark unless it has acquired distinctive character through use (judgments of 29 September 2009, *The Smiley Company* v *OHIM (Representation of half a smiley smile)*, T‑139/08, EU:T:2009:364, paragraph 26, and of 4 April 2019, *Stada Arzneimittel* v *EUIPO (Representation of two facing arches)*, T‑804/17, not published, EU:T:2019:218, paragraph 20).

94      Furthermore, as follows from the case-law cited in paragraph 73 above, the sign at issue must display characteristics that can be easily and instantly memorised by the relevant public and would make it possible for that sign to be perceived immediately as an indication of the commercial origin of the goods in question.

95      In the present case, it is common knowledge that the repetitive design consisting of two parallel lines enclosing clearly delineated chevrons in black and white (see paragraph 30 above) is a simple geometric shape.

96      Thus, on account of that simplicity, the mark at issue is not likely to convey a message which consumers may remember, with the result that they will not regard it as a trade mark.

97      Therefore, the Grand Board of Appeal was right to find, in paragraph 89 of the contested decision, that, as a simple geometric sign, the graphic representation of the mark at issue in black and white confirmed the lack of distinctive character of that mark.

98      In addition, it is common to decorate objects with simple patterns which, as a result, serve as ornamentation. Thus, as the Grand Board of Appeal correctly found, in paragraph 88 of the contested decision, the mark at issue will be perceived as an ornamental feature of the goods in question.

99      Accordingly, being decorative and simple, the mark at issue does not display any aspect that can be easily and instantly memorised by the relevant public and would make it possible for that mark to be perceived immediately as an indication of the commercial origin of the goods in question.

100    Consequently, the Grand Board of Appeal did not make an error of assessment in finding, in paragraphs 88 to 92 of the contested decision, that the mark at issue was devoid of distinctive character on account of its decorative nature and simplicity.

101    That conclusion cannot be called into question by the applicant’s other arguments.

102    First, contrary to what the applicant claims, the contested decision is not contradictory. The Grand Board of Appeal, in paragraphs 88 to 92 of the contested decision, found, in essence, that the relevant public would take the view that the mark at issue was a purely decorative element, given that it was a simple geometric shape, and, therefore, that it would not carry out any analysis of the commercial origin of that mark.

103    Second, inasmuch as the applicant refers to examples of signs used by other undertakings in other sectors, it fails to identify the exact signs. Moreover, in so far as the applicant referred to the monogram, the chequerboard pattern and the LV logo of Louis Vuitton, the swoosh of Nike, the three stripes of Adidas and the sign of Gucci in order to assert that being attractive does not call into question the distinctive character of a mark, it must be borne in mind that it follows from the case-law that EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law, including the principles of equal treatment and sound administration. In the light of those principles, EUIPO must take into account the decisions it has already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not, since the application of those principles must be consistent with respect for the principle of legality (judgment of 10 March 2011, *Agencja Wydawnicza Technopol* v *OHIM*, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 75).

104    Consequently, a person who files an application for registration of a sign as an EU trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as an EU trade mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see, to that effect, judgment of 10 March 2011, *Agencja Wydawnicza Technopol* v *OHIM*, C‑51/10 P, EU:C:2011:139, paragraphs 76 and 77).

105    In any event, the signs referred to by the applicant in the application are not comparable to the mark at issue since they do not cover the same goods as that mark.

106    Third, as regards the applicant’s argument that Article 7(1)(e)(iii) of Regulation No 207/2009 does not apply to figurative marks, it is sufficient to note that the Grand Board of Appeal did not apply that provision in the present case. Accordingly, that argument of the applicant must be rejected as being ineffective.

107    Therefore, the applicant’s fourth and fifth complaints must be rejected as being, in part, unfounded and, in part, ineffective.

108    In those circumstances and having regard to the case-law cited in paragraphs 33 to 35 above, the mark at issue does not have distinctive character. Thus, the Grand Board of Appeal was right to find, in paragraph 93 of the contested decision, that that mark was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009.

109    Accordingly, it is necessary to reject the first head of claim, seeking the annulment of the contested decision, and the third head of claim, submitted in the alternative, seeking that the Court dismiss the application for a declaration of invalidity in so far as it is based on the same provision, namely Article 7(1)(b) of Regulation No 207/2009 (see paragraphs 20 and 23 above), which presupposes that that decision be annulled.

110    Consequently, the action must be dismissed in its entirety.

**Costs**

111    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

112    Since a hearing has taken place and the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EUIPO and the intervener, in accordance with the forms of order sought by those parties.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders KnitPro International to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and 135 Kirkstall, Inc. for the purposes of the proceedings before the General Court.**

|  |  |  |
| --- | --- | --- |
| Costeira | Öberg | Tichy-Fisslberger |

Delivered in open court in Luxembourg on 21 May 2025.

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| --- | --- | --- |
| V. Di Bucci |  | S. Papasavvas |

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| --- | --- | --- |
| Registrar |  | President |

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[\*](#Footref*)      Language of the case: English.

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