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

Provisional text

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

22 March 2017 (*)

(EU trade mark — Application for the EU word mark BRENT INDEX — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009)

In Case T‑430/16

Intercontinental Exchange Holdings, Inc., established in Atlanta, Georgia (United States), represented by P. Heusler, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by S. Bonne, acting as Agent,

defendant,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 2 June 2016 (Case R 8/2016-4), concerning an application for registration of the word sign BRENT INDEX as an EU trade mark,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, R. Barents (Rapporteur) and J. Passer, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 29 July 2016,

having regard to the response lodged at the Court Registry on 25 October 2016,

having regard to the fact that no request for a hearing was submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

 Background to the dispute

1        On 23 June 2015, the applicant, Intercontinental Exchange Holdings, Inc., 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).

2        Registration as a mark was sought for the word sign BRENT INDEX.

3        The goods and services in respect of which registration was sought are in Classes 9, 36 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 to the following description:

–        Class 9: ‘Electronic publications, namely, newsletters, journals, bulletins, fact sheets, reports, summaries, guidelines, manuals, compilations, brochures, workbooks, and worksheets featuring financial news and financial information, including commentary, articles, charts, lists, diagrams, images, tables, editorials, calculations, prices, historic data, and financial data; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, calculating, collecting, compiling, analysing, estimating, evaluating, and reporting price indices and related information for use in transactions involving financial instruments; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, providing information in the field of financial transaction settlement rates, financial margin rates of financial instruments and currency exchange rates; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, operating a commodities and commodity derivatives exchange, providing financial exchange services for transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, financial clearing and clearing house services, namely, clearing financial transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, financial investment and advisory services, monitoring of global financial markets for others, also known as, global investment research services; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, disseminating real-time and historic financial news, data and information for the purchasing, selling, administering, managing, monitoring, settling, clearing, pricing of global financial markets, currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, disseminating real-time and historic financial news, data and information for the valuing and tracking of global financial markets, currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; and interactive computer software and computer hardware for providing financial services on-line from a global computer network and the internet via computer terminals and mobile communication devices, namely, financial research and analysis services, brokerage services involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds and financial planning services’;

–        Class 36: ‘Financial services, namely, calculating, collecting, compiling, analyzing, estimating, evaluating, and reporting financial price indices and related information for use in transactions involving financial instruments; providing information in the field of financial transaction settlement rates, financial margin rates of financial instruments and currency exchange rates; operating a commodities and commodity derivatives exchange; providing financial exchange services for transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; financial clearing and clearing house services, namely, clearing financial transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; financial investment and advisory services; monitoring of global financial markets for others, also known as, global investment research services; disseminating real-time and historic financial news, data and information for the purchasing, selling, administering, managing, monitoring, settling, clearing, pricing, valuing and tracking of global financial markets, currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; financial research and analysis services; brokerage services involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; financial planning; and providing all of the aforesaid services on-line from a global computer network, the internet and interactive electronic media in the nature of computer terminals and mobile communication devices’;

–        Class 42: ‘Hosting an interactive website that gives multiple computer users simultaneous access to financial news, data and information; and computer programming, research and design of interactive computer software and computer hardware for providing financial services, namely, calculating, collecting, compiling, analyzing, estimating, evaluating, and reporting price indices and related information for use in transactions involving financial instruments; and computer programming, research and design of interactive computer software and computer hardware for providing financial services, namely, providing information in the field of financial transaction settlement rates, financial margin rates of financial instruments and currency exchange rates; and computer programming, research and design of interactive computer software and computer hardware for providing financial services, namely, operating a commodities and commodity derivatives exchange, providing financial exchange services for transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; and computer programming, research and design of interactive computer software and computer hardware for providing financial services, namely, financial clearing and clearing house services, namely, clearing financial transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds, financial investment and advisory services, monitoring of global financial markets for others, also known as, global investment research services; and computer programming, research and design of interactive computer software and computer hardware for providing financial services, namely, disseminating real-time and historic financial news, data and information for the purchasing, selling, administering, managing, monitoring, settling, clearing, pricing, valuing and tracking of global financial markets, currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; and computer programming, research and design of interactive computer software and computer hardware for providing financial services, namely, financial research and analysis services, brokerage services involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds and financial planning services’.

4        By letter of 7 July 2015, the examiner informed the applicant that the mark applied for was not eligible for registration on the ground that it was descriptive for the purposes of Article 7(1)(c) of Regulation No 207/2009 and devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation.

5        By letter of 3 September 2015, the applicant replied, in essence, that the mark applied for was not descriptive and that it had distinctive character.

6        By decision of 12 November 2015, the examiner rejected the application for registration on the ground that the mark applied for came within the scope of the grounds for refusal set out in Article 7(1)(b) and (c) and Article 7(2) of Regulation No 207/2009.

7        On 4 January 2016, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the examiner’s decision.

8        By decision of 2 June 2016 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal. It pointed out, in paragraph 9 of the contested decision, that the meaning of the words ‘brent’ and ‘index’ which had been established on the basis of the Finance Glossary Online and the Oxford Dictionary Online was not being contested. It added, in paragraph 10 of the contested decision, that, although the term ‘brent’ was not a financial term per se, because it is the name of type of crude oil, it was, however, used by professionals in the financial sector. Regarding the term ‘index’, the Board of Appeal pointed out that it denoted a system applied in stock markets to compare the values and prices of shares. It took the view that, in combination, the terms ‘brent’ and ‘index’ would be directly and automatically linked to finance, without there being any ambiguity or vagueness for the relevant public.

9        The Board of Appeal stated, in paragraph 11 of the contested decision, that, contrary to what the applicant claimed, each and every one of the goods and services mentioned in the list was explicitly linked to the financial sector, with the result that the same ground for refusal applied with regard to them.

10      The Board of Appeal therefore found, in paragraph 12 of the contested decision, that the mark applied for was descriptive of the goods and services in question and deduced from this, in paragraph 14 of that decision, that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

12      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      In support of its application for annulment of the contested decision, the applicant relies on two pleas in law. The first plea alleges infringement of Article 7(1)(c) of Regulation No 207/2009 and the second plea alleges infringement of Article 7(1)(b) of that regulation.

14      As regards the first plea, the applicant complains, in essence, that the Board of Appeal erred in finding that the word sign at issue was descriptive as regards the goods and services covered by the mark applied for.

15      Article 7(1)(c) of Regulation No 207/2009 provides that 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 must not be registered. Furthermore, Article 7(2) of Regulation No 207/2009 states that paragraph 1 is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.

16      According to the case-law, Article 7(1)(c) of Regulation No 207/2009 prevents the signs or indications to which it refers from being reserved to one undertaking alone because they have been registered as trade marks. That provision thus pursues an aim in the public interest, which requires that such signs or indications may be freely used by all (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31; of 27 February 2002, Ellos v OHIM (ELLOS), T‑219/00, EU:T:2002:44, paragraph 27; and of 19 April 2016, Spirig Pharma v EUIPO (Daylong), T‑261/15, not published, EU:T:2016:220, paragraph 17).

17      Furthermore, signs or indications which may serve, in trade, to designate characteristics of the goods or services in respect of which registration is sought are, pursuant to Article 7(1)(c) of Regulation No 207/2009, deemed to be incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, thus 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 it was negative (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 18).

18      It follows that, for a sign to be caught by the prohibition set out in that provision, there must be a link between the sign and the goods or services in question that is sufficiently direct and specific to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or of one of their characteristics (see judgment of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 19 and the case-law cited).

19      For a mark which consists of a neologism or a word produced by a combination of elements to be regarded as descriptive for the purposes of Article 7(1)(c) of Regulation No 207/2009, it is not sufficient that each of those elements be found to be descriptive. The neologism or word itself must also be found to be descriptive (judgments of 12 January 2005, Wieland-Werke v OHIM (SnTEM, SnPUR, SnMix), T‑367/02 to T‑369/02, EU:T:2005:3, paragraph 31, and of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 20; see also, by analogy, judgments of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 96, and of 12 February 2004, Campina Melkunie, C‑265/00, EU:C:2004:87, paragraph 37).

20      A trade mark consisting of a neologism or of a word composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of the characteristics of those goods or services for the purposes of Article 7(1)(c) of Regulation No 207/2009 unless there is a perceptible difference between the neologism or the word and the mere sum of its parts. That presupposes that, because of the unusual nature of the combination in relation to the goods or services, the neologism or word creates an impression which is far enough removed from that conveyed by a simple combination of the meanings of its constituent elements that it is more than the sum of its parts. In that connection, analysis of the words at issue in light of the appropriate lexical and grammatical rules is also relevant (see judgment of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 21 and the case-law cited).

21      It must also be borne in mind that the assessment of whether a sign is descriptive can be conducted only, first, by reference to the relevant public’s perception of that sign and, secondly, by reference to the goods or services concerned (judgments of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 38, and of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 22).

22      As regards the relevant public, it is necessary to uphold the Board of Appeal’s finding, in paragraph 8 of the contested decision, a finding which has not, moreover, been disputed by the applicant, that the goods and services covered by the mark applied for are aimed at professionals in the financial sector.

23      It must also be stated that, since the mark applied for consists of elements derived from English, the examiner, who has not been contradicted by the Board of Appeal in that regard, was right to find that the existence of absolute grounds for refusal had to be examined with regard to English-speaking consumers. That finding has also not been disputed by the applicant.

24      Consequently, in accordance with Article 7(2) of Regulation No 207/2009, the relevant public by reference to which the absolute ground for refusal must be assessed is an English-speaking public, since the word sign at issue consists of word elements derived from English (see, to that effect, judgment of 27 February 2015, Universal Utility International v OHIM (Greenworld), T‑106/14, not published, EU:T:2015:123, paragraph 22 and the case-law cited).

25      Accordingly, it is necessary, for the purposes of applying Article 7(1)(c) of Regulation No 207/2009, to consider, on the basis of a given meaning of the mark applied for, whether there is, from the point of view of the relevant public, a sufficiently direct and specific link between the word sign BRENT INDEX and the goods and services in respect of which registration is sought (see, to that effect, judgments of 26 November 2003, HERON Robotunits v OHIM (ROBOTUNITS), T‑222/02, EU:T:2003:315, paragraph 38, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 23 and the case-law cited).

26      In the first place, the applicant submits that the terms ‘brent’ and ‘index’ are not directly and automatically linked to finance. It therefore maintains that while the term ‘brent’ might be of certain significance for the financial sector, it is not a financial term per se. The applicant takes the view that ‘index’, on the other hand, is used in certain parts of the financial sector, namely the stock market, to compare the values and prices of shares. It submits that using it together with the name of a frequently traded commodity will not, however, automatically and immediately connect it to financial services in the eyes of the relevant public.

27      That argument cannot be accepted.

28      In that regard, it must be pointed out that the word sign BRENT INDEX consists solely of the two elements ‘brent’ and ‘index’, without any addition.

29      First, the term ‘brent’ refers to a certain type of crude oil. Even though, as the applicant submits, that term is not in itself a financial term, that does not preclude it, as the Board of Appeal also found in paragraph 10 of the contested decision, from actually being commonly used by professionals in the financial sector, as is, moreover apparent specifically from its entry in the Finance Glossary Online, a finding which the applicant has not, moreover, disputed. The prices of a large proportion of internationally traded crude oils are fixed against the price of Brent.

30      Moreover, it must be held that, since it takes the view that the term ‘brent’ is the name of a type of crude oil which plays a certain part in the financial sector, the applicant does not really dispute that that term is used in the financial sector.

31      Secondly, the term ‘index’, as is also apparent from paragraph 10 of the contested decision, denotes a system applied in stock markets to compare the values and prices of shares.

32      Moreover, since it points out that the term ‘index’ is used in certain parts of the financial sector, namely the stock market, to compare the values and prices of shares, the applicant also does not dispute the Board of Appeal’s finding.

33      Thirdly, it is common ground that the expression ‘brent index’, which is merely the juxtaposition of the words ‘brent’ and ‘index’, does indeed refer, as the examiner pointed out, to a figure system or scale representing the average value of prices, shares, and so forth of a crude oil coming from the Brent field in the North Sea, which is also used as a benchmark for the prices of other crude oils.

34      Furthermore, the juxtaposition of the terms ‘brent’ and ‘index’, which are separated by a space, is consistent with English lexical and grammatical rules and does not contain any unusual element in its syntax which would make it possible for that expression to be anything other than the mere combination of the words ‘brent’ and ‘index’.

35      Associated with the goods and services at issue, the mark applied for will therefore inform the professionals concerned immediately, without any thought being necessary, of the intended purpose of those goods and services, namely the fact that they are linked to finance.

36      In the second place, the applicant complains that the Board of Appeal gave the same ground for refusal of registration of the mark applied for in respect of all of the services in Class 36, on the ground that they are related to the financial sector, although some of them are neither connected to crude oil nor to indexing services. It submits that that is the case with regard, in particular, to providing information in the field of financial transaction settlement rates, financial margin rates of financial instruments and currency exchange rates; providing financial exchange services for transactions involving currencies, commodities, futures, derivatives, securities, shares, stocks, options and bonds; financial transactions involving currencies, futures, derivatives, securities, shares, stocks, options and bonds; financial investment and advisory services; disseminating real-time and historic financial use, data and information for the purchasing, selling, administering, managing, monitoring, settling, clearing, pricing, valuing and tracking of global financial markets, currencies, futures, derivatives, securities, shares, stocks, options and bonds; brokerage services including currencies, futures, derivatives, securities, shares, stocks, options and bonds, and, lastly, financial planning.

37      In that regard, it is apparent from settled case-law that, although the decision of the competent authority refusing registration of a trade mark must, in principle, state reasons in respect of each of the goods or services concerned, the competent authority may nevertheless use purely general reasoning where the same ground for refusal is used in respect of a category or group of goods or services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services (judgment of 16 October 2014, Larrañaga Otaño v OHIM (GRAPHENE), T‑458/13, EU:T:2014:891, paragraph 26; see also, to that effect, order of 18 March 2010, CFCMCEE v OHIM, C‑282/09 P, EU:C:2010:153, paragraphs 37 to 40, and, by analogy, judgment of 15 February 2007, BVBA Management, Training en Consultancy, C‑239/05, EU:C:2007:99, paragraphs 34 to 38).

38      The fact remains that all the services and goods mentioned by the applicant refer specifically to their financial nature, as the word ‘financial’ appears nine times in the list of goods and services which are, according to the applicant, not of a financial nature. Furthermore, the term ‘index’ is not, contrary to what the applicant appears to claim, unconnected with the financial sector but is, on the contrary, part of that sector, with the result that the absence of any reference to ‘index’ is immaterial in the light of the reason referred to by the Board of Appeal, namely the financial nature of those services, since the services referred to in paragraph 36 above are, in fact, of a financial nature.

39      Moreover, it is sufficient to state, for the reasons set out by the Board of Appeal in paragraph 11 of the contested decision, first, that the goods in Class 9 are narrowed down to financial instruments used by professionals only, secondly, as regards the services in Class 36, that they are specifically of a financial nature, as is already apparent from the wording of those services, that is to say ‘[f]inancial services, namely’ and, lastly, as regards the services in Class 42, that they also refer to services which are financial in nature.

40      The Board of Appeal did not therefore err in finding that all the goods and services in Classes 9, 36 and 42, including those listed in paragraph 36 above, were linked to the financial sector.

41      In the third place, the applicant submits that EUIPO has already accepted the registration of the trade mark BRENT in respect of certain goods and services.

42      In that regard, it must at this juncture be pointed out that the applicant merely referred to the registration of that mark, without stating the reason why that registration would have an influence on the registration of the mark applied for. It follows that that complaint must be declared inadmissible (see, to that effect, order of 14 April 2016, Best-Lock (Europe) v EUIPO, C‑451/15 P, not published, EU:C:2016:269, paragraph 14).

43      Moreover and in any event, first, it must be borne in mind that, according to settled case-law, the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation No 207/2009 and not on the basis of a previous decision-making practice of EUIPO (judgments of 16 February 2000, Procter & Gamble v OHIM (Soap bar shape), T‑122/99, EU:T:2000:39, paragraphs 60 and 61; of 5 December 2000, Messe München v OHIM (electronica), T‑32/00, EU:T:2000:283, paragraphs 46 and 47; and of 30 June 2004, Norma Lebensmittelfilialbetrieb v OHIM (Mehr für Ihr Geld), T‑281/02, EU:T:2004:198, paragraph 35). Accordingly, EUIPO is not bound either by national registrations or by its own previous decisions.

44      Secondly, even if, by that argument, the applicant were, in essence, complaining that the Board of Appeal infringed the principle of equal treatment, it would have to be pointed out that, in the light of the principles of equal treatment and of sound administration, it has indeed been held that EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not (judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 74, and of 25 September 2015, August Storck v OHIM (2good), T‑366/14, not published, EU:T:2015:697, paragraph 38).

45      However, those principles must be consistent with respect for legality. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed for the benefit of someone else (judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 75 and 76, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 39).

46      Moreover, for reasons of legal certainty and 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 a 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 (judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77, and of 25 September 2015, 2good, T‑366/14, not published, EU:T:2015:697, paragraph 40).

47      In the present case, it is apparent from the contested decision that the Board of Appeal carried out a full and specific examination of the mark applied for before refusing to register it. In addition, it is apparent from the examination of the applicant’s other complaints that that examination led the Board of Appeal, correctly, to oppose registration of the mark applied for on the basis of the absolute ground for refusal referred to in Article 7(1)(c) of Regulation No 207/2009. Since the examination of the mark applied for in the light of that provision has not, in itself, reached a different conclusion, the applicant’s claims relating to a failure to take into consideration the registration of identical marks cannot succeed. The applicant may not therefore reasonably invoke previous decisions of EUIPO in order to cast doubt on the conclusion that the registration of the mark applied for is incompatible with Regulation No 207/2009.

48      It follows from all of the foregoing that the first plea in law must be rejected.

49      As regards the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009, inasmuch as the word sign BRENT INDEX has distinctive character it must be borne in mind that, as is clear from the wording of Article 7(1) of Regulation No 207/2009, it is sufficient that one of the absolute grounds for refusal listed in that provision applies for the sign to be ineligible for registration as an EU trade mark (order of 13 February 2008, Indorata-Serviços e Gestão v OHIM, C‑212/07 P, not published, EU:C:2008:83, paragraph 27, and judgment of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 67).

50      In the present case, since the mark applied for has been held to be descriptive of the goods and services at issue, the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009, must be rejected.

51      It follows from all of the foregoing that the action must be dismissed.

 Costs

52      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Intercontinental Exchange Holdings, Inc. to pay the costs.

CollinsBarentsPasser

Delivered in open court in Luxembourg on 22 March 2017.

* Language of the case: English.

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