CELEX: 62013CO0450
Language: en
Date: 2014-06-19 00:00:00
Title: Order of the Court (Sixth Chamber), 19 June 2014.#Donaldson Filtration Deutschland GmbH v ultra air GmbH.#Appeal — Community trade mark — Word mark ultrafilter international — Application for a declaration of invalidity — Abuse of rights.#Case C‑450/13 P.

ORDER OF THE COURT (Sixth Chamber)
      19 June 2014 (
            *1
         )
      ‛Appeal — Community trade mark — Word mark ultrafilter international — Application for a declaration of invalidity — Abuse of rights’
      In Case C‑450/13 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 August 2013,
      
         Donaldson Filtration Deutschland GmbH, established in Haan (Germany), represented by N. Siebertz, M. Teworte-Vey and A. Renvert, Rechtsanwälte,
      appellant,
      the other parties to the proceedings being:
      
         ultra air GmbH, established in Hilden (Germany), represented by C. König, Rechtsanwalt,
      applicant at first instance,
      
         Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by G. Schneider, acting as Agent,
      defendant at first instance,
      THE COURT (Sixth Chamber),
      composed of A. Borg Barthet (Rapporteur), President of the Chamber, E. Levits and M. Berger, Judges,
      Advocate General: N. Jääskinen,
      Registrar: A. Calot Escobar,
      having decided, after hearing the Advocate General, to give its decision by reasoned order in accordance with Article 181 of the Rules of Procedure of the Court of Justice,
      makes the following
      
         Order
      
      
               1
            
            
               By its appeal, Donaldson Filtration Deutschland GmbH (‘Donaldson Filtration Deutschland’) seeks to have set aside the judgment of the General Court of the European Union in ultra air v OHIM — Donaldson Filtration Deutschland (ultrafilter international) (T‑396/11, EU:T:2013:284, ‘the judgment under appeal’), by which the General Court annulled the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 18 May 2011 (Case R 374/2010-4) relating to invalidity proceedings between ultra air GmbH (‘ultra air’) and Donaldson Filtration Deutschland (‘the decision at issue’).
            
         
         Legal context
      
      
               2
            
            
               Article 7(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), entitled ‘Absolute grounds for refusal’, provides:
               ‘The following shall not be registered:
               
                        (a)
                     
                     
                        …
                     
                  
                        (b)
                     
                     
                        trade marks which are devoid of any distinctive character;
                     
                  
                        (c)
                     
                     
                        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;
                     
                  …’
            
         
               3
            
            
               Article 52(1)(a) of Regulation No 207/2009, entitled ‘Absolute grounds for invalidity’, provides:
               ‘A Community trade mark shall be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings:
               
                        (a)
                     
                     
                        where the Community trade mark has been registered contrary to the provisions of Article 7.’
                     
                  
         
               4
            
            
               Article 56(1)(a) to (c) of that regulation, entitled ‘Application for revocation or for a declaration of invalidity’, states:
               ‘An application for revocation of the rights of the proprietor of a Community trade mark or for a declaration that the trade mark is invalid may be submitted to the Office:
               
                        (a)
                     
                     
                        where Articles 51 and 52 apply, by any natural or legal person and any group or body set up for the purpose of representing the interests of manufacturers, producers, suppliers of services, traders or consumers, which under the terms of the law governing it has the capacity in its own name to sue and be sued;
                     
                  
                        (b)
                     
                     
                        where Article 53(1) applies, by the persons referred to in Article 41(1);
                     
                  
                        (c)
                     
                     
                        where Article 53(2) applies, by the owners of the earlier rights referred to in that provision or by the persons who are entitled under the law of the Member State concerned to exercise the rights in question.’
                     
                  
         
         Background to the dispute
      
      
               5
            
            
               On 29 March 1999, ultrafilter GmbH, now Donaldson Filtration Deutschland, filed an application for registration of a Community trade mark at OHIM under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), now replaced by Regulation No 207/2009.
            
         
               6
            
            
               The mark in respect of which registration was sought is the word sign ‘ultrafilter international’ (‘the trade mark’).
            
         
               7
            
            
               The goods and services in respect of which registration of the trade mark was sought fall within Classes 7, 11, 37, 41 and 42 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 7: ‘Filters for drying, cleaning and cooling air, gases and liquids; filter bodies; filtering materials; mechanical and electrical steam traps; oil separators; water separators’;
                     
                  
                        —
                     
                     
                        Class 11: ‘Apparatus and installations for drying, cleaning and cooling air, gases and liquids; parts and accessories for these apparatus and installations, in particular pump diaphragms, level gauges, valves, in particular solenoid valves, membrane valves, controls for valves, time control devices, pressure gauges, in particular differential pressure gauges, pressure meters, in particular temperature-pressure meters, level-pressure meters, connecting elements for filtering installations, including structural connection and fastening parts; apparatus for ventilating’;
                     
                  
                        —
                     
                     
                        Class 37: ‘Commissioning, repair and maintenance of the aforesaid apparatus and installations’;
                     
                  
                        —
                     
                     
                        Class 41: ‘Providing of technical training; sales and product training’ and
                     
                  
                        —
                     
                     
                        Class 42: ‘Engineering services; consultancy on the planning, construction and operation of the aforesaid installations and apparatus’.
                     
                  
         
               8
            
            
               By decision of 19 January 2001, OHIM rejected the application for registration as a Community trade mark pursuant to Article 7(1)(b) and (c) of Regulation No 40/94, the provisions of which were reproduced in Article 7(1)(b) and (c) of Regulation No 207/2009, on the grounds that the trade mark was descriptive and that it was devoid of any distinctive character. Following an appeal brought by Donaldson Filtration Deutschland, the Second Board of Appeal of OHIM annulled that decision on 16 December 2003 (Case R 375/2001-2) and affirmed that the trade mark had become distinctive within the meaning of Article 7(3) of Regulation No 40/94, the provisions of which were reproduced in Article 7(3) of Regulation No 207/2009, in the German and English-speaking Member States.
            
         
               9
            
            
               The trade mark was registered as a Community trade mark on 27 September 2005 under No 1121839.
            
         
               10
            
            
               On 5 May 2008, ultra air brought an application before OHIM under Article 51(1)(a) of Regulation No 40/94, the provisions of which were reproduced in Article 52(1)(a) of Regulation No 207/2009, seeking that the trade mark be declared invalid on the ground that it had been registered contrary to Article 7(1)(b) and (c) and Article 7(3) of Regulation No 40/94.
            
         
               11
            
            
               By decision of 29 January 2010, the Cancellation Division of OHIM upheld that application and declared the trade mark invalid for all the goods and services pursuant to Article 52(1)(a) of Regulation No 207/2009, in conjunction with Article 7(1)(b) and (c) of that regulation.
            
         
               12
            
            
               On 16 March 2010, Donaldson Filtration Deutschland filed a notice of appeal with OHIM under Articles 58 to 64 of Regulation No 207/2009 against the decision of the Cancellation Division.
            
         
               13
            
            
               By the decision at issue, the Fourth Board of Appeal of OHIM granted the appeal, annulled the decision of the Cancellation Division and rejected the application for a declaration of invalidity brought by ultra air. According to the Board of Appeal, the application for a declaration of invalidity was vitiated by an abuse of rights and had to be rejected as inadmissible. In that regard, it considered, in essence, that, by its application for a declaration of invalidity, ultra air, was in reality seeking to use the designation ‘ultrafilter’ itself as a trade mark (whether alone or in combination with other terms). That company thus pursued objectives other than the public interest objectives laid down in Article 7(1)(b) and (c) and Article 7(3) of Regulation No 207/2009. Its hidden intentions, which amount to an abuse of rights, were further evidenced by the fact that, in 2003, the former manager of the proprietor of the trade mark and current manager of ultra air personally defended the distinctive character which that mark had acquired through use. Since an abuse of rights constitutes a ‘general obstacle to the procedure’, abusive applications and actions which amount to procedures designed to attain objectives other than those which are legitimate under trade mark law are not admissible, and there is no need to refer to the procedural law of the Member States, in accordance with Article 83 of Regulation No 207/2009.
            
         
         The procedure before the General Court and the judgment under appeal
      
      
               14
            
            
               By application lodged at the Registry of the General Court on 22 July 2011, ultra air brought an action for the annulment of the decision at issue.
            
         
               15
            
            
               In support of its action, ultra air relies, in essence, on two pleas in law, alleging an infringement, respectively, of Articles 52(1)(a) and 56(1)(a) of Regulation No 207/2009.
            
         
               16
            
            
               As the appeal relates only to the assessment made by the General Court in the context of the first plea in law, it is necessary to summarise only that plea.
            
         
               17
            
            
               The General Court essentially considered, in paragraphs 17 and 18 of the judgment under appeal, with reference to Lancôme v OHIM (C‑408/08 P, EU:C:2010:92), that under Article 56(1)(a) of Regulation No 207/2009 any natural or legal person having the capacity in its own name to sue and be sued may submit an application for a declaration of invalidity under Article 52(1)(a) of that regulation, without the applicant being required to show an interest in bringing proceedings. This is because the absolute grounds for refusal of registration aim to protect the public interest underlying them.
            
         
               18
            
            
               It stated in this regard, in paragraph 19 of that judgment, that the public interest underlying Article 7(1)(b) of Regulation No 207/2009 is indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer. The public interest underlying Article 7(1)(c) of that regulation 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.
            
         
               19
            
            
               In paragraph 20 of the judgment under appeal, the General Court held that it follows from Article 7(1)(b) and (c) of Regulation No 207/2009 that the purpose of the administrative procedure laid down in Article 56(1)(a) of that regulation, in conjunction with Article 52(1)(a) thereof, is, inter alia, to enable OHIM to review the validity of the registration of a mark and to adopt, where necessary, a position which it should have adopted of its own motion under Article 37(1) of Regulation No 207/2009.
            
         
               20
            
            
               In paragraph 21 of the judgment under appeal, the General Court took the view that, in that regard, OHIM is required to assess whether the mark under examination is descriptive and/or devoid of distinctive character, without the motives and earlier conduct of the applicant for a declaration of invalidity being able to affect the scope of the task entrusted to OHIM in relation to the public interest underlying Article 7(1)(b) and (c) and Article 56(1)(a) of Regulation No 207/2009. According to the General Court, given that OHIM does not rule on the question whether the rights of the proprietor of the mark take precedence over any rights which the applicant for a declaration of invalidity might have, but ascertains whether the rights of the proprietor of the mark were validly obtained in the light of the rules governing the registrability of marks, there can be no question of an ‘abuse of rights’ on the part of the applicant for a declaration of invalidity.
            
         
               21
            
            
               In paragraph 22 of the judgment under appeal, the General Court concludes that the fact that the applicant for a declaration of invalidity may file an application with a view to subsequently affixing the sign in question to its own products is perfectly in line with the public interest provided for in Article 7(1)(c) of Regulation No 207/2009 of keeping signs freely available. Consequently, in its view, such conduct cannot amount to an abuse of rights in any circumstances, contrary to what OHIM’s Fourth Board of Appeal found. That assessment is confirmed by Article 52(1) of Regulation No 207/2009, pursuant to which a Community trade mark may also be declared invalid on the basis of a counterclaim in infringement proceedings, which presupposes that the defendant in that action may obtain a declaration of invalidity even if he has used the mark in question and intends to continue to do so.
            
         
               22
            
            
               The General Court held in paragraph 23 of the judgment under appeal that the rejection of the application for a declaration of invalidity on the ground of an ‘abuse of rights’ thwarts the objectives pursued by Article 7(1)(b) and (c) of Regulation No 207/2009 since such a rejection prevents the examination of the substance, as described in paragraph 21 of that judgment, from being carried out.
            
         
               23
            
            
               The General Court also ruled, in paragraph 24 of the judgment under appeal, that the fact that the manager of the applicant for a declaration of invalidity was the manager of the proprietor of the mark at the time when the application for registration of the mark was lodged in no way affects the rights of that applicant to bring an action before OHIM under Article 56(1)(a) of Regulation No 207/2009. It explains in this regard that, given the nature and purpose of the procedure in question, namely the safeguarding of the public interest underlying Article 7(1)(b) and (c) of Regulation No 207/2009, the proprietor of a mark which is descriptive or which is devoid of distinctive character does not obtain any rights to retain the registration of his mark on the sole basis that the applicant for a declaration of invalidity is managed by a natural person who, in the past, sought to register the sign in question.
            
         
               24
            
            
               In paragraph 25 of the judgment under appeal, the General Court examined and disregarded the arguments put forward by Donaldson Filtration Deutschland alleging that ultra air had engaged in unfair competition against it. It pointed out that Article 56(1)(a) of Regulation No 207/2009 does not make the admissibility or validity of an application for a declaration of invalidity subject to good faith on the part of the applicant for such a declaration. Indeed, even supposing that an application for a declaration of invalidity does form part of an overall confrontational commercial strategy, involving acts of unfair competition, the removal from the register of a mark which is either descriptive or devoid of distinctive character is, according to the General Court, a consequence of trade mark law, laid down in Article 57(5) and (6) of Regulation No 207/2009, and the trade mark’s proprietor does not gain the right to retain its registration on the basis that the applicant for a declaration of invalidity has also engaged in unfair competition.
            
         
               25
            
            
               Accordingly, the General Court ruled, in paragraphs 27 and 28 of the judgment under appeal, that the Fourth Board of Appeal had erred in law in rejecting the application for a declaration of invalidity as inadmissible on the basis of an alleged ‘abuse of rights’. It therefore annulled the decision at issue.
            
         
         Forms of order sought by the parties before the Court of Justice
      
      
               26
            
            
               Donaldson Filtration Deutschland and OHIM claim that the Court should:
               
                        —
                     
                     
                        set aside the judgment under appeal;
                     
                  
                        —
                     
                     
                        dismiss the action brought by ultra air seeking the annulment of the decision at issue, and
                     
                  
                        —
                     
                     
                        order ultra air to pay the costs.
                     
                  
         
               27
            
            
               ultra air contends that the Court should dismiss the appeal and order Donaldson Filtration Deutschland to pay the costs.
            
         
         The appeal
      
      
               28
            
            
               Under Article 181 of the Rules of Procedure of the Court, where the appeal or cross-appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal or cross-appeal in whole or in part.
            
         
               29
            
            
               That provision must be applied in the context of the present appeal.
            
         
               30
            
            
               In support of its appeal, Donaldson Filtration Deutschland puts forward two grounds of appeal.
            
         
         The first ground of appeal
      
      Arguments of the parties
      
               31
            
            
               By its first ground of appeal, Donaldson Filtration Deutschland, supported by OHIM, alleges that the General Court failed to assess the alleged abuse of rights as a generally applicable concept of law.
            
         
               32
            
            
               The General Court rightly stated, in paragraphs 17 and 18 of the judgment under appeal, that under Article 56(1)(a) of Regulation No 207/2009, any person having the capacity in its own name to sue and be sued may submit an application for a declaration of invalidity of a trade mark under Article 52(1)(a) of that regulation, without the applicant being required to show an interest in bringing proceedings. However, in paragraph 21 of the same judgment, the General Court wrongly concluded that OHIM is required to assess whether the mark under examination is descriptive and/or devoid of distinctive character, ‘without the motives and earlier conduct of the applicant for a declaration of invalidity being able to affect the scope of the task entrusted to OHIM in relation to the public interest underlying Article 7(1)(b) and (c) and Article 56(1)(a) of Regulation No 207/2009’.
            
         
               33
            
            
               In that regard, the General Court failed to take into consideration the arguments put forward by Donaldson Filtration Deutschland. First of all, invalidity proceedings do not preclude consideration of the alleged abuse of rights as a generally applicable concept of law in so far as the exclusion of claims of an abuse of rights is not the same as the introduction of a requirement that positive evidence be furnished by the applicant of a need for legal protection. Second, the EU legislature has made invalidity proceedings subject to application, as a court cannot declare a registered trade mark invalid of its own motion.
            
         
               34
            
            
               The General Court simply made the unsubstantiated statement, in paragraphs 21 to 23 of the judgment under appeal, that an alleged abuse of rights in invalidity proceedings under Article 56(1) of Regulation No 207/2009 is not relevant.
            
         
               35
            
            
               In addition, the General Court failed to take into account the Court’s case-law on the notion of the abuse of rights. Donaldson Filtration Deutschland refers in this regard to the judgment in Budějovický Budvar (C‑482/09, EU:C:2011:605), which recognised that the concept of the abuse of rights must be respected in EU law. It also mentions the judgment in Lancôme v OHIM (EU:C:2010:92), which, in its view, merely states that the absence of a personal interest on the part of the applicant for a declaration of validity in the cancellation of a mark can be overcome by the general interest. An alleged abuse of rights may therefore be relied upon against an application for a declaration of invalidity lodged under Article 56(1)(a) of Regulation No 207/2009.
            
         
               36
            
            
               ultra air contends that the General Court conducted a proper examination of the conditions for an abuse of rights. Thus, in paragraphs 17 to 20 of the judgment under appeal, the General Court considered the objective of the Community legislation in question, which is to protect the public interest. In paragraphs 21 to 27 of that judgment, it examined whether the circumstances alleged by Donaldson Filtration Deutschland mean that, in the present case, the objective of the legislation is not achieved. The General Court rightly found that these circumstances do not alter the fact that the objective of the legislation is achieved.
            
         Findings of the Court
      
               37
            
            
               By its first ground of appeal, Donaldson Filtration Deutschland alleges, in essence, that the General Court simply made the incorrect statement that an alleged abuse of rights in invalidity proceedings under Article 56(1)(a) of Regulation No 207/2009 is not relevant, without substantiation and without taking into consideration EU case-law on the abuse of rights.
            
         
               38
            
            
               Such an allegation is based on a manifestly erroneous reading of the judgment under appeal.
            
         
               39
            
            
               First of all, in paragraphs 17 to 19 of the judgment under appeal the General Court stated, in essence, that under Article 56(1)(a) of Regulation No 207/2009 an application for a declaration of invalidity based on an absolute ground for invalidity does not require the applicant to show an interest in bringing proceedings in so far as the absolute grounds for refusal of registration aim to protect the public interest underlying them, which is not, moreover, contested by Donaldson Filtration Deutschland.
            
         
               40
            
            
               Second, as the General Court pointed out in paragraph 20 of the judgment under appeal, the purpose of the administrative procedure laid down in Article 56(1)(a) of Regulation No 207/2009, in conjunction with Article 52(1)(a) of that regulation, is, inter alia, to enable OHIM to review the validity of the registration of a mark and to adopt, where necessary, a position which it should have adopted of its own motion under Article 37(1) of Regulation No 207/2009.
            
         
               41
            
            
               Accordingly, because it is necessary to protect the public interest underlying Article 7(1)(b) and (c) and Article 56(1)(a) of Regulation No 207/2009, the General Court concluded, in paragraph 21 of the judgment under appeal, that OHIM’s task is to assess whether the mark under examination is descriptive and/or devoid of distinctive character in the light of the rules governing the registrability of marks, without the motives and earlier conduct of the applicant for a declaration of invalidity being able to affect the scope of that task.
            
         
               42
            
            
               Because OHIM’s assessment must be made exclusively in the light of the public interest underlying Article 7(1)(b) and (c) and Article 56(1)(a) of Regulation No 207/2009, the potential or actual economic interest pursued by the applicant for a declaration of invalidity is not relevant and, consequently, there can be no question of an ‘abuse of rights’ on the part of the applicant for a declaration of invalidity, as the General Court was entitled to rule.
            
         
               43
            
            
               Accordingly, the fact that the applicant for a declaration of invalidity may file an application with a view to subsequently affixing the sign in question to its own products cannot amount to an abuse of rights in any circumstances, as the General Court held in paragraph 22 of the judgment under appeal. The public interest safeguarded by Article 7(1)(c) of Regulation No 207/2009 is precisely that of keeping that sign freely available.
            
         
               44
            
            
               In addition, it should be stated that the intention of the applicant for a declaration of invalidity to use the mark in question after the declaration of invalidity is not contrary to Regulation No 207/2009. As the General Court stated in paragraph 22 of its judgment, Article 52(1) of that regulation provides that a Community trade mark may also be declared invalid where there are absolute grounds for refusal on the basis of a counterclaim in infringement proceedings, which presupposes that the defendant in that action may obtain a declaration of invalidity even if he has used the mark in question and intends to continue to do so.
            
         
               45
            
            
               By contrast, as the General Court stated in paragraph 23 of the judgment under appeal, the rejection of the application for a declaration of invalidity on the ground of an ‘abuse of rights’ would preclude the effective attainment of the objectives pursued by Article 7(1)(b) and (c) of Regulation No 207/2009. Such rejection would not permit an assessment of the mark in the light of the rules governing the registrability of marks or of the existence of an absolute ground for refusal of registration.
            
         
               46
            
            
               In these conditions, the General Court did not err in law in ruling that the question of the abuse of rights is not relevant in invalidity proceedings under Article 56(1)(a) of Regulation No 207/2009.
            
         
               47
            
            
               The argument put forward by Donaldson Filtration Deutschland on the Court’s case-law relating to the abuse of rights cannot alter that conclusion. It must be stated, first of all, that only the Opinion delivered in Budějovický Budvar (EU:C:2011:605) addressed the question of the abuse of rights. Second, with regard to the judgment in Lancôme v OHIM (EU:C:2010:92), it should be pointed out that the Court rejected the argument raised by Lancôme parfums et beauté & Cie SNC to the effect that Article 56(1)(a) of Regulation No 207/2009 requires there to be an actual or potential economic interest in cancellation of a contested trade mark on the part of the applicant for a declaration of invalidity. In paragraph 43 of that judgment, it ruled inter alia, in essence, that the general interest underlying the ground for refusal of registration of a mark because of its descriptiveness is not exclusively the interest of the trade-mark proprietor’s competitors, but a common interest. Consequently, the individual economic interest of the trade-mark proprietor’s competitors in the cancellation of the trade mark is not relevant in the context of an application for a declaration of invalidity based on Article 56(1)(a) of Regulation No 207/2009.
            
         
               48
            
            
               With regard to the obligation to state reasons on the General Court, it is clear from settled case-law that such an obligation does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment in Gogos v Commission, C‑583/08 P, EU:C:2010:287, paragraph 30 and the case-law cited).
            
         
               49
            
            
               It must be stated that the reasoning outlined by the General Court in paragraphs 21 to 23 of the judgment under appeal necessarily entails the implicit rejection of the arguments put forward by Donaldson Filtration Deutschland. To follow the latter’s arguments would be tantamount to failing to protect the public interest underlying Article 7(1)(b) and (c) of Regulation No 207/2009. In so far as the General Court is not required to respond exhaustively to each of the arguments put forward by the parties before it, it cannot be criticised for failing to state reasons for its assessment.
            
         
               50
            
            
               In the light of the foregoing considerations, the first ground of appeal must be rejected as being manifestly unfounded.
            
         
         The second ground of appeal
      
      Arguments of the parties
      
               51
            
            
               By its second ground of appeal, Donaldson Filtration Deutschland, supported by OHIM, alleges that the General Court failed to assess the specific circumstances of the individual case, which illustrate that ultra air abused its rights in seeking a declaration of invalidity.
            
         
               52
            
            
               By the first limb of the second ground of appeal, Donaldson Filtration Deutschland claims that the General Court erred in law when it ruled, in paragraph 25 of the judgment under appeal, that the unlawful conduct by ultra air, which manifestly seeks solely to benefit from the good reputation acquired by the name ‘ultrafilter international’ among the relevant public and to mislead that public as to the origin of the products, is irrelevant to the present case.
            
         
               53
            
            
               Whilst the General Court rightly held that Article 56(1)(a) of Regulation No 207/2009 does not make the admissibility or validity of an application for a declaration of invalidity subject to good faith on the part of the applicant for such a declaration, it does not necessarily follow that the annulment of a mark which is either descriptive or devoid of distinctive character is a consequence of trade mark law, laid down in Article 57(5) and (6) of Regulation No 207/2009, even if the applicant for a declaration of invalidity engages in unfair competition. The application for a declaration of invalidity is not an isolated act, alongside other possible anti-competitive behaviour by ultra air, but specifically constitutes the basis and the object of that unfair behaviour.
            
         
               54
            
            
               By the second limb of the second ground of appeal, Donaldson Filtration Deutschland alleges that the General Court failed to assess to a sufficient degree, in paragraph 24 of the judgment under appeal, the role of ultra air’s manager, who was formerly the manager of Donaldson Filtration Deutschland and was personally solely responsible for the proceedings concerning the registration of the mark whose invalidity he is now seeking.
            
         
               55
            
            
               OHIM claims that the General Court’s reasoning in paragraph 24 of the judgment under appeal is circular. The General Court’s finding that the proprietor ‘does not obtain any rights to retain the registration of his mark’ is no different from the conclusion that ‘the right of the applicant for a declaration of invalidity is in no way affected’ in so far as they describe the General Court’s findings from a different perspective.
            
         
               56
            
            
               OHIM also refers to case-law and to German legal literature, according to which the aspect of contradictory conduct (venire contra factum proprium) may lead to the identification of abuse and the alleged abuse of rights cannot be rejected in principle in invalidity proceedings. Against this background, the fact that the person who had first enabled a trade mark to be registered by proving the distinctive character which that mark had acquired through use is now challenging his own conduct is relevant.
            
         
               57
            
            
               ultra air claims that the second ground of appeal must be rejected as being unfounded because the General Court did take into consideration the circumstances of the individual case, as is clear from paragraphs 21 to 27 of the judgment under appeal.
            
         
               58
            
            
               With regard to the first limb of the second ground of appeal, ultra air states that Donaldson Filtration Deutschland’s argument that the mark ‘ultrafilter international’ has such a reputation that it must be protected for the benefit of Donaldson Filtration Deutschland is understandable if that company had based its position on the fact that, at the time when the application for a declaration of invalidity was submitted, that mark had in any event acquired distinctive character through use. However, that was not the case.
            
         
               59
            
            
               With regard to the second limb of the second ground of appeal, ultra air claims that the objection of venire contra factum proprium is not applicable in the present case in so far as its manager had the trade mark registered not for himself, but for Donaldson Filtration Deutschland, which is a legal person, with the result that the manager has never been the proprietor of the mark ‘ultrafilter international’. ultra air also states that the manager in question did not take up his post within the company until March 2008. If Donaldson Filtration Deutschland’s argument were followed, this would mean that an application for a declaration of invalidity submitted before March 2008 would not be considered to constitute abuse just as if such an application had been submitted after the manager in question had left the company.
            
         Findings of the Court
      
               60
            
            
               With regard to the first limb of the second ground of appeal, it should be stated, first of all, that in paragraph 25 of the judgment under appeal the General Court examined the allegations made by Donaldson Filtration Deutschland to the effect that ultra air engaged in unfair competition against it and concluded that that unfair competition did not affect ultra air’s right to apply for a declaration of invalidity of the trade mark.
            
         
               61
            
            
               Second, Donaldson Filtration Deutschland’s argument is based on the premise that the application for a declaration of invalidity submitted by ultra air under Article 52(1)(a) of Regulation No 207/2009 in itself constitutes unfair competition.
            
         
               62
            
            
               However, such a premise is manifestly erroneous in so far as the fact that the applicant for a declaration of invalidity may file an application with a view to subsequently using the trade mark is perfectly in line with the public interest underlying Article 7(1)(c) of Regulation No 207/2009, as is clear from paragraph 43 of the present order. This assessment is confirmed by Article 52(1) of Regulation No 207/2009, according to which a Community trade mark may also be declared invalid on the basis of a counterclaim in infringement proceedings.
            
         
               63
            
            
               Lastly, the General Court rightly held that the removal from the register of a mark which is either descriptive or devoid of distinctive character is not the consequence of engaging in unfair competition in so far as such a mark should have been refused registration because there are absolute grounds for refusal vitiating it, but a consequence of trade mark law, laid down in Article 57(5) and (6) of Regulation No 207/2009.
            
         
               64
            
            
               It follows that the first limb of the second ground of appeal must be rejected as being manifestly unfounded.
            
         
               65
            
            
               With regard to the second limb of the second ground of appeal, it should be stated that, in paragraph 24 of the judgment under appeal, the General Court ruled that the fact that the manager of the applicant for a declaration of invalidity, namely ultra air, was the manager of the proprietor of the trade mark, Donaldson Filtration Deutschland, at the time when the application for registration of the mark was lodged in no way affects the rights of ultra air to submit an application for a declaration of invalidity to OHIM under Article 56(1)(a) of Regulation No 207/2009. The General Court stated in this regard that, given the nature and purpose of the procedure in question, namely the safeguarding of the public interest underlying Article 7(1)(b) and (c) of Regulation No 207/2009, the proprietor of a mark which is descriptive or which is devoid of distinctive character does not obtain any rights to retain the registration of his mark on the sole basis that the applicant for a declaration of invalidity is managed by a natural person who, in the past, sought to register the sign in question.
            
         
               66
            
            
               It must therefore be stated that the General Court did examine the argument relied upon by Donaldson Filtration Deutschland to the effect that the application for a declaration of invalidity constituted abuse on account of the earlier conduct of the manager of ultra air and considered that this aspect was not relevant in invalidity proceedings based on Article 56(1)(a) of Regulation No 207/2009.
            
         
               67
            
            
               In addition, as the General Court was not required to respond exhaustively to all the arguments put forward before it by the parties (see, to this effect, the judgment in Gogos v Commission, EU:C:2010:287, paragraph 30), it cannot be alleged that the General Court failed to assess to a sufficient degree the aspect of the earlier conduct of the manager of ultra air.
            
         
               68
            
            
               Furthermore, contrary to the claims made by OHIM, the General Court’s reasoning in paragraph 24 of the judgment under appeal is not circular. The first sentence of paragraph 24 of the judgment under appeal states, in essence, that the earlier conduct of the manager of ultra air, the company applying for a declaration of invalidity of the trade mark, is not relevant at all having regard to that company’s right to make such an application to OHIM. The second sentence of that paragraph justifies that finding by the nature and purpose of the procedure in question, namely the safeguarding of the public interest underlying Article 7(1)(b) and (c) of Regulation No 207/2009. In so far as a trade mark which should not have been registered because it is descriptive or devoid of distinctive character must be able to be declared invalid, the protection of the public interest is not affected by the earlier activities of the manager of the company which initiated the invalidity proceedings in question.
            
         
               69
            
            
               In addition, it must be stated that the manager in question registered the trade mark not for himself, but for and on behalf of its proprietor, Donaldson Filtration Deutschland, which is a legal person that must be distinguished from the manager as a natural person. It follows that that manager has never been the proprietor of the trade mark, with the result that the objection of venire contra factum proprium is not applicable.
            
         
               70
            
            
               Consequently, the second limb of the second ground of appeal must also be rejected as being manifestly unfounded and the second ground of appeal must therefore be rejected.
            
         
               71
            
            
               In the light of all the above considerations, the appeal must be dismissed in its entirety.
            
         
         Costs
      
      
               72
            
            
               Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since ultra air has applied for costs to be awarded against Donaldson Filtration Deutschland, and the latter has been unsuccessful, Donaldson Filtration Deutschland must be ordered to pay the costs.
            
          
            
               On those grounds, the Court (Sixth Chamber) hereby:
            
          
            
               
                        
                           1.
                        
                     
                     
                        
                           Dismisses the appeal;
                        
                     
                  
          
            
               
                        
                           2.
                        
                     
                     
                        
                           Orders Donaldson Filtration Deutschland GmbH to pay the costs.
                        
                     
                  
          
               
                  
                     [Signatures]
                  
               
            (
            *1
         )	Language of the case: German.