Bundesverband Souvenir - Geschenke - Ehrenpreise eV v European Union Intellectual Property Office.
Date: 2018-09-06
29


Regarding the first part of the first ground of appeal, it should be borne in mind that, under Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on a point of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, in particular, judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49 and the case-law cited).
36


According to settled case-law, that provision pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is sought may be freely used by all, including as collective marks or as part of complex or graphic marks. That provision therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks (judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 25, and of 10 July 2014, BSH v OHIM, C‑126/13 P, not published, EU:C:2014:2065, paragraph 19 and the case-law cited).
37


As regards, more particularly, signs or indications which may serve to designate the geographical origin of the categories of goods in respect of which registration of the mark is sought, especially geographical names, the Court has held that it is in the public interest that they remain available, not least because they may be an indication of the quality and other characteristics of the categories of goods concerned, and may also, in various ways, influence consumer tastes by, for instance, associating the goods with a place that may give rise to a favourable response (judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 26).
38


The Court has emphasised in that regard that a sign may not be refused registration on the basis of Article 7(1)(c) of Regulation No 207/2009 unless the geographical name in respect of which registration as a trade mark is sought designates a place which is associated in the mind of the relevant class of persons, at the time the application for registration is made, with the category of goods concerned, or it is reasonable to assume that such an association may be established in the future (see, to that effect, judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 31, and of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 56).
39


However, it should be noted that, in principle, Article 7(1)(c) of Regulation No 207/2009 does not preclude the registration of geographical names which are unknown to the relevant class of persons — or at least unknown as the designation of a geographical location — or of names in respect of which, because of the type of place they designate, such persons are unlikely to believe that the category of goods concerned originates there (see, to that effect, judgment of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 33).
48


In that regard, it should be borne in mind that, in its judgment of 4 May 1999, Windsurfing Chiemsee (C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 36), the Court held that, whilst an indication of the geographical origin of a product usually indicates the place where that product was or could be manufactured, the connection between a product and a geographical location might depend on other ties, such as the fact that that product was conceived and designed in that geographical location.
62


By complaining that the General Court provided an inadequate statement of reasons for the finding that the contested trade mark has distinctive character, the appellant raises a point of law which is amenable, as such, to review on appeal (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 63 and the case-law cited).
63


According to the settled case-law of the Court, the obligation to state reasons owed by the General Court requires it to disclose clearly and unequivocally the reasoning followed by it, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 24 January 2013, 3F v Commission, C‑646/11 P, not published, EU:C:2013:36, paragraph 63 and the case-law cited).
70


By contrast, in so far as the General Court’s statement in paragraph 42 of the judgment under appeal that the contested trade mark enables goods and services, the quality of which may be controlled by the Freistaat Bayern, to be marketed and provided under its sign constitutes a ground included purely for the sake of completeness, it must be held that the appellant’s argument directed against that ground is ineffective (judgment of 1 February 2018, Kühne + Nagel International and Others v Commission, C‑261/16 P, not published, EU:C:2018:56, paragraph 69, and order of 14 January 2016, Royal County of Berkshire Polo Club v OHIM, C‑278/15 P, not published, EU:C:2016:20, paragraph 43 and the case-law cited).
72


Regarding the second part of the second ground of appeal, it should be borne in mind that, according to settled case-law, the decisions concerning the registration of a sign as an EU trade mark which the Boards of Appeal are called on to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion and, accordingly, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union (judgment of 19 January 2012, OHIM v Nike International, C‑53/11 P, EU:C:2012:27, paragraph 57 and the case-law cited). Furthermore, as is apparent from paragraph 44 of the judgment under appeal, the EU trade mark system is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system (judgment of 12 December 2013, Rivella International v OHIM, C‑445/12 P, EU:C:2013:826, paragraph 48 and the case-law cited).
83


In that judgment, to which the General Court refers in paragraph 58 of the judgment under appeal, the Court held, in essence, regarding the intention of the applicant at the time of filing the application for registration of an EU trade mark, that, even in a situation where that applicant files an application for registration of a sign with the sole aim of competing unfairly with a competitor who is using a similar sign, it cannot be excluded that the applicant’s registration of the sign may be in pursuit of a legitimate objective. The Court specified that that could be the case, in particular, where the applicant knows, when filing the application for registration, that a third party, who is a newcomer in the market, is trying to take advantage of that sign by copying its presentation, and the applicant seeks to register the sign with a view to preventing use of that presentation (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraphs 47 to 49). Accordingly, it is not apparent from that judgment that the assessment of bad faith must necessarily take the means used to achieve such an objective into account.