Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

12 May 2016 (*)

(EU trade mark — Invalidity proceedings — International registration designating the European Union — Word mark AROMA — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

In Case T‑749/14,

Peter Chung-Yuan Chang, residing in San Diego, California (United States), represented by A. Sanz-Bermell y Martínez, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented initially by A. Crawcour and A. Folliard-Monguiral, and subsequently by A. Folliard-Monguiral and D. Hanf, acting as Agents,

defendant,

the intervener in the proceedings before the General Court, formerly BSH Bosch und Siemens Hausgeräte GmbH, the other party to the proceedings before the Board of Appeal of EUIPO, being

BSH Hausgeräte GmbH, established in Munich (Germany), represented by S. Biagosh, lawyer,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 4 September 2014 (Case R 1887/2013-4), relating to invalidity proceedings between BSH Bosch und Siemens Hausgeräte and Peter Chung-Yuan Chang,

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis (Rapporteur), President, O. Czúcz and A. Popescu, Judges,

Registrar: A. Lamote, Administrator,

having regard to the application lodged at the Court Registry on 4 November 2014,

having regard to the response of EUIPO lodged at the Court Registry on 13 April 2015,

having regard to the response of the intervener lodged at the Court Registry on 2 April 2015,

having regard to the reply lodged at the Court Registry on 30 April 2015,

having regard to the Court’s written question to EUIPO and to EUIPO’s response to that question lodged at the Court Registry on 22 December 2015,

further to the hearing on 29 February 2016,

gives the following

Judgment

 Background to the dispute

1        On 21 November 2006, Mr Peter Chung-Yuan Chang obtained from the International Bureau of the World Intellectual Property Organisation (WIPO) the international registration No 924 502 designating the European Union for the word mark AROMA. The European Union Intellectual Property Office (EUIPO) received notification of that international registration designating the European Union on 28 June 2007.

2        The goods in respect of which the international registration designating the European Union was granted fall within, inter alia, Classes 7 and 11 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond, for each of those classes, to the following description:

–        Class 7: ‘Electrical cooking utensils, namely juicer, juice extractors, pasta makers for domestic use, food processors and blenders’;

–        Class 11: ‘Electrical cooking utensils, namely convention cooking ovens for domestic use, automatic bread makers for domestic use, food steamers for domestic use, grills, deep fryers, sandwich makers, waffle makers, soup warmers, rice cookers and warmers, food dehydrators, skillets, pressure cookers, hot plates, toaster ovens and roaster ovens, ice cream makers, and slow cookers’.

3        On 25 April 2012, the intervener, BSH Hausgeräte GmbH, applied for a declaration of invalidity of the contested mark under Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(b) and (c) of that regulation, for the goods referred to in paragraph 2 above.

4        By decision of 30 August 2013, the Cancellation Division rejected the application for a declaration of invalidity on the ground that the intervener had not demonstrated that the word mark AROMA was, as such, descriptive of the intended purpose or the characteristics of the goods at issue.

5        On 26 September 2013, the intervener lodged an appeal with EUIPO pursuant to Articles 58 to 64 of Regulation No 207/2009 against the decision of the Cancellation Division.

6        By decision of 4 September 2014 (‘the contested decision’), the Fourth Board of Appeal of EUIPO upheld the appeal.

7        First, the Board of Appeal held that the sign AROMA, the meaning of which, especially in English, German, Spanish and Italian, is at the same time synonymous with ‘flavour’, ‘smell’, ‘scent’, ‘perfume’, ‘bouquet’ and ‘fragrance’, could, due to a direct and unequivocal conceptual link between the goods and the term ‘aroma’, be immediately perceived by the relevant public as referring to an essential characteristic or intended use of the goods covered, such as to come within the scope of the prohibition laid down in Article 7(1)(c) of Regulation No 207/2009.

8        Second, it took the view that, in so far as the mark at issue was a purely descriptive indication of the goods covered, it was, by virtue of that fact, also devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009.

9        Third, the Board of Appeal found that the mark had not in any way acquired distinctive character under Article 7(3) of that regulation, as the applicant had failed to show the use which had been made of it in Germany, for example, where the sign AROMA is descriptive.

 Forms of order sought by the parties

10      The applicant claims that the Court should:

–        annul the contested decision and, accordingly, reject the application for a declaration of invalidity presented by the intervener by declaring the registration of the mark AROMA to be valid;

–        order EUIPO and the intervener to pay the costs.

11      The applicant stated, in response to a question put by the Court at the hearing, that he was withdrawing the second part of his first head of claim, whereby he sought a declaration by the Court that the registration of the mark AROMA was valid.

12      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      In support of his action, the applicant raises two pleas in law: (i) infringement of Article 7(1)(c) of Regulation No 207/2009 and (ii) infringement of Article 7(1)(b) of that regulation.

14      As a preliminary point, it is appropriate to examine EUIPO’s submissions concerning the inadmissibility of annexes A.6 and A.17 to the application.

15      Annex A.6 consists of a screen shot showing the results of an internet search based on the terms ‘aroma cooker’, while Annex A.17 contains information taken from Wikipedia on Amazon, which is a distributor of the goods covered by the mark AROMA.

16      Those documents, produced for the first time before the Court, cannot be taken into consideration. The purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 65 of Regulation No 207/2009, and accordingly it is not the Court’s function to review the facts in the light of documents produced for the first time before it. The abovementioned documents must therefore be excluded, without it being necessary to assess their probative value (see, to that effect, judgment of 24 November 2005 in Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited).

 The first plea in law: infringement of Article 7(1)(c) of Regulation No 207/2009

17      The applicant claims, in essence, that the Board of Appeal wrongly concluded in the contested decision, pursuant to Article 7(1)(c) of Regulation No 207/2009, that the contested mark was descriptive in character.

18      EUIPO, supported by the intervener, disputes that assertion.

19      Under Article 158(2) of Regulation No 207/2009, the application for invalidation of the effects of an international registration designating the European Union is to take the place of an application for a declaration of revocation as provided for in Article 51 or for a declaration of invalidity as provided for in Article 52 or Article 53 of that regulation.

20      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 that trade mark has been registered contrary to the provisions of Article 7 of that regulation.

21      According to Article 7(1)(c) of Regulation No 207/2009, 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 time of production of the goods or of rendering of the service, or other characteristics of the goods or service, cannot be registered. Article 7(2) of that regulation provides that ‘paragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union’.

22      Article 7(1)(c) of Regulation No 207/2009 pursues an aim which is in the public interest, requiring that signs or indications which may serve, in trade, to designate characteristics of the goods or services for which registration is sought may be freely used by all. That provision accordingly prevents such signs or indications from being reserved to one undertaking alone because they have been registered as trade marks (see judgment of 21 January 2015 in Grundig Multimedia v OHIM (GentleCare), T‑188/14, not published, EU:T:2015:34, paragraph 18 and the case-law cited).

23      It follows that, in order for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation No 207/2009, there must be a sufficiently direct and specific relationship between the sign and the goods or services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods or services or one of their characteristics (see judgment of 21 January 2015 in GentleCare, T‑188/14, not published, EU:T:2015:34, paragraph 19 and the case-law cited).

24      Accordingly, the descriptive character of a mark must be assessed, first, by reference to the goods or services in respect of which registration is sought and, second, by reference to the perception of the relevant public (judgment of 30 September 2015 in Ecolab USA v OHIM (GREASECUTTER), T‑610/13, not published, EU:T:2015:737, paragraph 19).

25      The applicant’s first plea in law, alleging infringement of Article 7(1)(c) of Regulation No 207/2009, must be examined in the light of those principles.

26      As a preliminary point, with regard to the relevant public, it should be noted, as the Board of Appeal did in paragraphs 16 and 20 of the contested decision, that the goods at issue come within the general category of ‘electrical cooking utensils’, in Classes 7 and 11, intended to be used ‘to prepare, cook, transform, process, heat, mix, blend, toast or roast foodstuff[s] and beverages’. In view of their purpose, those goods are principally intended for the average consumer.

27      In the first place, the applicant appears to dispute the definition of the term ‘aroma’ used by the Board of Appeal in relation to the relevant public. According to the applicant, the term ‘aroma’, or ‘arôme’ in French, cannot be interpreted as a synonym of ‘flavour’ or of ‘taste’ because that term diverges appreciably from the latter two, both semantically and conceptually. The applicant disputes, in the same vein, the Board of Appeal’s treatment, in paragraph 17 of the contested decision, of the term ‘aroma’ as being synonymous with that of ‘smell’.

28      EUIPO claims, in this regard, that such treatment of the terms ‘flavour’ and ‘taste’ as being synonymous with that of ‘aroma’ is equally relevant in assessing the descriptive character of a mark associated with cooking appliances intended for the use of the public at large.

29      It must be borne in mind, in this regard, that, according to the case-law, in order for a mark to be rejected under Article 7(1)(c) of Regulation No 207/2009, at least one of the possible meanings of a word sign must designate a characteristic of the goods covered (judgment of 23 October 2003 in OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32).

30      In the present case, the Court notes that the term ‘aroma’ can have several meanings. It is, inter alia in English, Italian and German, in precisely the same way as the term ‘arôme’ in French, a synonym for ‘scent’, ‘perfume’, ‘bouquet’ and ‘fragrance’ and is commonly used in cooking to mean a ‘distinctive, usually pleasant smell, especially of spices, wines and plants’, as the Board of Appeal found in paragraph 17 of the contested decision.

31      The term ‘aroma’ may therefore, contrary to what the applicant claims, be synonymous with ‘smell’, even if ‘aroma’ appears to be more specific and subtle than a simple smell, since it has a positive connotation. The concepts of ‘aroma’ and of ‘smell’ may therefore, given their proximity in meaning, be regarded by consumers as overlapping. Nevertheless, the view might quite properly be taken that, in the light of the subtlety in meaning of the term ‘aroma’ vis-à-vis the term ‘smell’, the latter being more general, the average consumer will perceive the difference between those two terms and attribute a more laudatory character to the former.

32      Furthermore, contrary to what the applicant claims, the Court finds that, at least in German, the term ‘aroma’ may also be treated as similar to the notions of ‘flavour’ or ‘taste’, as is apparent from the evidence provided by EUIPO in response to a question put by the Court.

33      The submissions of the applicant made with a view to calling into question the definition of the term ‘aroma’ given by the Board of Appeal in the contested decision must therefore be rejected.

34      In the second place, as regards the relationship between the goods covered and the meaning attributed to the term ‘aroma’, the applicant submits that the Board of Appeal carried out an elaborate and complex form of reasoning, which an average consumer would not undertake, and accordingly assigned an indirect meaning to the sign AROMA, going beyond the proper meaning of the word, in order to establish the existence of an indirect connection with the goods covered, whereas, in the case-law cited in support of the contested decision, the relationship between the signs and the goods covered was direct.

35      The applicant states, in this regard, that the meaning of the term ‘aroma’ never refers directly to the appliance itself, but to the food which is cooked in it, with the result that the word sign AROMA cannot be associated with either a characteristic or an intended use of the goods covered by that sign.

36      EUIPO, supported by the intervener, takes issue with those arguments and contends that the term ‘aroma’ contains obvious and direct information on the intended use of the goods. Accordingly, the relevant public would immediately perceive the sign AROMA as conveying information on the intended use of those goods.

37      It should be recalled that the Board of Appeal found, in paragraphs 20 to 23 of the contested decision, that the electrical cooking utensils covered by the mark AROMA were intended to be used ‘to prepare, cook, transform, process, heat, mix, blend, toast or roast foodstuff[s] and beverages’, it being understood that one of the highly desirable characteristics of such goods in the eyes of the relevant consumers is to give aroma or enhance the original aroma of foods and beverages. The term ‘aroma’ therefore creates a link in the mind of the relevant public with an essential characteristic of the goods, according to the Board of Appeal.

38      As has been stated in paragraph 23 above, in order for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation No 207/2009, there must be a sufficiently direct and specific relationship between the sign and the goods or services at issue to enable the public concerned immediately to perceive, without further thought, a description of the goods or services or one of their characteristics.

39      First, the goods falling within Classes 7 and 11 covered by the mark AROMA consist, for the main part, of electrical cooking utensils. As the applicant claims, those goods do not give off any particular aroma, with the result that the nature or essential characteristics of the goods at issue have no direct relationship with the sign AROMA.

40      Second, it should be noted that the aroma of a foodstuff depends, most importantly, on the foodstuff used and the way in which it is prepared or cooked. Every foodstuff already has its own natural smell which may be accentuated or brought out, suppressed, or even hidden, in the course of its preparation, to such an extent that an aroma which may, where relevant, be given off by a foodstuff after having been cooked or prepared with the help of an electrical cooking appliance does not allow for a direct reference to those goods to be created without further thought. Contrary to what the Board of Appeal found in paragraph 23 of the contested decision, the function or intended use of the goods at issue is not to obtain beverages or foodstuffs with aroma, since that is rather a desirable characteristic of food prepared or cooked with the help of those goods.

41      The Board of Appeal therefore erred in taking the view, in paragraph 25 of the contested decision, that the sign AROMA contained obvious and direct information on the qualities and characteristics of the goods at issue.

42      It follows that the sign AROMA is not descriptive of the way in which the goods at issue function, of their intended use or of any other of their characteristics and that that sign is therefore not caught by the prohibition laid down in Article 7(1)(c) of Regulation No 207/2009.

43      The foregoing conclusion is not called into question by the other arguments put forward by EUIPO.

44      First, EUIPO contends that the applicant refers more to the actual use of the sign rather than to its normal use as required by Article 7(1)(c) of Regulation No 207/2009.

45      It should be recalled that, according to settled case-law, it is not necessary that the signs and indications composing the mark actually be in use at the time of the registration in a way that is descriptive of goods or services such as those which have been registered, or of characteristics of those goods or services. It is sufficient, as the wording of Article 7(1)(c) of Regulation No 207/2009 itself indicates, that such signs and indications could be used for such purposes (judgment of 23 October 2003 in OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32; see, also, judgment of 20 November 2007 in Tegometall International v OHIM — Wuppermann (TEK), T‑458/05, EU:T:2007:349, paragraph 88 and the case-law cited).

46      In the present case, however, as has been found in paragraphs 39 and 40 above, the sign AROMA does not refer to any direct characteristic of the goods at issue, but demonstrates, at most, an indirect connection with those goods. It follows that that indirect connection, being limited to the realm of a simple suggestion or allusion, is not, and will not be, capable of serving, in trade, to designate the quality or the intended use of the goods, whether regard is had to the actual use or to the normal use of the mark. As the applicant contends, the purpose of the goods at issue is not to give aroma, but to cook or prepare food.

47      Second, EUIPO relies on the judgment in GentleCare, cited in paragraph 22 above (EU:T:2015:34), in which, it is claimed, the Court followed a different approach from that followed in the case giving rise to the judgment of 2 December 2008 in Ford Motor v OHIM (FUN) (T‑67/07, EU:T:2008:542), cited by the applicant. According to EUIPO, the Court held, in paragraph 31 of that judgment, that, in the light of the wording of Article 7(1)(c) of Regulation No 207/2009, which does not draw any distinction by reference to the characteristics which may be designated by the signs or indications of which the mark consists, it is irrelevant whether the characteristics of the goods or services which are capable of being described by a sign are commercially essential or ancillary (judgment of 21 January 2015 in GentleCare, T‑188/14, not published, EU:T:2015:34, paragraph 31).

48      However, it is clear from the judgment of 21 January 2015 in GentleCare (T‑188/14, not published, EU:T:2015:34) that the meaning of the expression ‘GentleCare’, taken as a whole, referred directly to a characteristic, even an ancillary characteristic, of the goods at issue but one which could nevertheless be generally expected by the relevant public. As regards the goods for which the mark GentleCare was requested, namely machines the primary function of which was to treat and elaborate fabrics, it was generally expected, both at the stage of their manufacture and at that of their maintenance, that those fabrics would be the subject of particular ‘care’ requiring a degree of gentleness or attention. In the present case, by contrast, the term ‘aroma’ does not itself allude to any commercially essential characteristic of the goods covered or to any ancillary characteristic of those goods, but rather to a desirable characteristic of other goods, which may be used in conjunction with the goods for which the sign AROMA was requested, but which do not, in any event, have any direct connection with those goods (see paragraph 40 above).

49      According to the case-law, the fact that an undertaking wishes to give its goods a positive image, indirectly and in an abstract manner, yet without directly and immediately informing the consumer of one of the qualities or specific characteristics of the goods, is a case of evocation and not designation for the purposes of Article 7(1)(c) of Regulation No 207/2009 (judgment of 2 December 2008 in FUN, T‑67/07, EU:T:2008:542, paragraph 33).

50      Thus, as the applicant correctly states, a term of a flattering, laudatory character such as ‘fun’, was, however, not descriptive of the goods at issue, namely land motor vehicles, in so far as it did not enable the consumer immediately to perceive, without further thought, a specific and direct connection with the goods at issue (judgment of 2 December 2008 in FUN, T‑67/07, EU:T:2008:542, paragraph 38). Just like the term ‘aroma’ in the present case, the fact that the sign FUN could be perceived as giving the goods at issue a positive image did not go beyond suggestion and was therefore too vague, uncertain and subjective to confer descriptive character on that word in relation to those goods (judgment of 2 December 2008 in FUN, T‑67/07, EU:T:2008:542, paragraphs 34 and 35).

51      In the light of all of the foregoing, the first plea in law must be upheld inasmuch as the Board of Appeal erred in finding that the sign AROMA was descriptive of the goods at issue within the meaning of Article 7(1)(c) of Regulation No 207/2009.

 The second plea in law: infringement of Article 7(1)(b) of Regulation No 207/2009

52      The applicant submits, in essence, that the mark AROMA, identifiable in relation to the goods of other companies, does not fall foul of the prohibition laid down in Article 7(1)(b) of Regulation No 207/2009.

53      EUIPO, for its part, submits that the mark AROMA is a purely informative indication, descriptive of a highly desirable characteristic of cooking appliances, something which, moreover, deprives it of any distinctive character.

54      It should be noted, in this regard, that the Board of Appeal assessed the distinctive character of the mark AROMA in paragraphs 26 to 28 of the contested decision and found, in contrast to the Cancellation Division, that, in so far as the sign AROMA was descriptive of all of the goods covered by the registration, the sign was, on that basis, ‘not ... capable of distinguishing the goods of one undertaking from the products of other undertakings’ and was ‘entirely devoid of any distinctive character’ within the meaning of Article 7(1)(b) of Regulation No 207/2009.

55      However, in so far as it has been held in the context of the first plea of law that the sign AROMA was not descriptive, in contrast to what the Board of Appeal found in the contested decision, that conclusion is, consequently, also erroneous.

56      In those circumstances, it is appropriate to consider in the present case whether, as claimed by EUIPO and disputed by the applicant, the sign at issue is devoid of distinctive character.

57      If a mark is not descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009, it is not, on that basis, necessarily distinctive. In such a case, consideration should also be given to whether the mark is not inherently covered by the rule set out in Article 7(1)(b), that is to say, it is necessary to determine whether it is incapable of fulfilling the essential function of a trade mark, which is to guarantee to the consumer or end-user the identity of the origin of the goods or services covered by the mark by enabling him, without any possibility of confusion, to distinguish those goods or services from others which have another origin (see judgment of 5 February 2015 in nMetric v OHIM (SMARTER SCHEDULING), T‑499/13, not published, EU:T:2015:74, paragraph 21 and the case-law cited).

58      According to settled case-law, the marks referred to in Article 7(1)(b) of Regulation No 207/2009 are those which are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, enabling the consumer who acquired the goods or services designated by the mark to choose to acquire them again if it was a positive experience, or to avoid doing so, if that experience was negative (judgments of 3 July 2003 in Best Buy Concepts v OHIM (BEST BUY), T‑122/01, EU:T:2003:183, paragraph 20; of 21 January 2011 in BSH v OHIM (executive edition), T‑310/08, not published, EU:T:2011:16, paragraph 23; and of 23 January 2014 in Novartis v OHIM (CARE TO CARE), T‑68/13, not published, EU:T:2014:29, paragraph 12).

59      That distinctive character of a mark must be assessed, first, by reference to the goods and services in respect of which registration is sought and, second, by reference to the perception of the relevant public (see judgment of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 34 and the case-law cited).

60      It follows from the case-law that a minimum degree of distinctive character is sufficient to preclude the application of the absolute ground for refusal set out in Article 7(1)(b) of Regulation No 207/2009 (judgments of 27 February 2002 in Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 39, and of 23 January 2014 in CARE TO CARE, T‑68/13, not published, EU:T:2014:29, paragraph 13).

61      In the present case, it must be found that, despite the lack of evidence for establishing the origin of the word in its context, the concept of ‘aroma’ is not commonly used in the context of electrical cooking appliances and that the mere fact that a mark is perceived by the relevant public as a promotional formula capable, because of its laudatory nature, in principle of being used by other undertakings, is not in itself sufficient to support the conclusion that that mark is devoid of distinctive character (see judgment of 5 February 2015 in SMARTER SCHEDULING, T‑499/13, not published, EU:T:2015:74, paragraph 41 and the case-law cited).

62      The Court finds that the mark AROMA requires a certain degree of interpretation on the part of consumers, who will be unable to associate the mark directly with the goods at issue because, as has been stated in connection with the analysis of the first plea in law above, the intended use of the goods at issue is not to preserve or accentuate the taste of foodstuffs and beverages, as EUIPO claims, but to prepare, cook, transform, process, heat, mix, blend, toast or roast foodstuffs and beverages.

63      That mark could even be regarded as demonstrating a certain degree of originality, since the term ‘aroma’ is not normally used in such a context and requires interpretation by the relevant public or a cognitive process to be set off in their minds to enable them to arrive at a conclusion as to the relationship, which is only remotely evocative, between the mark applied for and the goods covered (see, to that effect, judgment of 25 September 2015 in BSH v OHIM (PerfectRoast), T‑591/14, not published, EU:T:2015:700, paragraph 46). The mark AROMA is therefore capable of identifying the commercial origin of the goods at issue and of distinguishing those goods from those of other undertakings.

64      In those circumstances, and without it being necessary to rule on the other arguments developed by the applicant relating to, inter alia, the alleged bad faith of the intervener, the Court finds that the mark AROMA cannot be regarded as being devoid of distinctive character in relation to the goods covered within the meaning of Article 7(1)(b) of Regulation No 207/2009.

65      The second plea in law must therefore also be upheld.

 Costs

66      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since EUIPO and the intervener have been unsuccessful, they must be ordered to bear their own costs and to pay the costs incurred by the applicant, in accordance with the form of order sought by the latter.

On those grounds,

THE GENERAL COURT (Ninth Chamber),

hereby:

1.      Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 September 2014 (Case R 1887/2013-4);

2.      Orders EUIPO and BSH Hausgeräte GmbH to bear their own costs and to pay those incurred by Mr Peter Chung-Yuan Chang.

Delivered in open court in Luxembourg on 12 May 2016.

[Signatures]

*Language of the case: English.

© European Union
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