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

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

4 October 2018(*)

(EU trade mark — Application for EU word mark FLEXCUT — Absolute ground for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

In Case T‑736/17,

Lincoln Global, Inc., established in Santa Fe Springs, California (United States), represented by K. Piepenbrink, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and D. Walicka, acting as Agents,

defendant,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 30 August 2017 (Case R 2225/2016-4), relating to the application for registration of the word sign FLEXCUT as an EU trade mark,

THE GENERAL COURT (Eighth Chamber),

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

Registrar: X. Lopez Bancalari, Administrator,

having regard to the application lodged at the Court Registry on 30 October 2017,

having regard to the response lodged at the Court Registry on 15 December 2017,

further to the hearing on 14 June 2018,

gives the following

Judgment

 Background to the dispute

1        On 16 February 2016 the applicant, Lincoln Global, Inc., filed an application for the registration of an EU trade mark at the European Union Intellectual Property Office (EUIPO) in accordance with Council Regulation (EU) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2        Registration as a trade mark was sought for the word sign FLEXCUT.

3        The goods in respect of which registration was sought are in Classes 7 and 9 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, for each of those classes, correspond to the following description:

–        Class 7: ‘Machines and machine tools for treatment of materials and for manufacturing; motors and engines (except for land vehicles); machine coupling and transmission components (except for land vehicles); welding, cutting and brazing machines, and parts thereof; plasma cutting machines; agricultural implements other than hand-operated’;

–        Class 9: ‘Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision) apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; power supply apparatus; power supplies for welding, brazing and cutting machines; power supplies for plasma cutting machines, calculating machines, data processing equipment, computers; computer software; lifesaving and teaching apparatus and instruments’.

4        By letter of 10 March 2016, the examiner informed the applicant that the mark applied for did not appear to him to be capable of registration, under Article 7(1)(b) and (c) and 7(2) of Regulation No 207/2009 (now Article 7(1)(b) and (c) and 7(2) of Regulation 2017/1001), in respect of some of the goods covered by the application for registration. He found that English-language consumers, consisting of professionals with a high level of attention, would understand the combination as a comprehensible expression meaning ‘dividing with flexibility’. In that regard, the examiner found that the absolute grounds for refusal in Article 7(1)(b) and (c) of Regulation No 207/2009 applied to goods which correspond, for each of those classes, to the following description:

–        Class 7: ‘Machines and machine tools for treatment of materials and for manufacturing; cutting machines, and parts thereof; plasma cutting machines’;

–        Class 9: ‘Power supplies for welding, brazing and cutting machines; power supplies for plasma cutting machines’.

5        By letter of 19 April 2016, the applicant replied, in essence, that the mark applied for was distinctive in respect of the goods referred to in paragraph 3 above.

6        By decision of 25 October 2016, the examiner confirmed the contents of his letter and rejected the application for registration in respect of the goods referred to in paragraph 4 above, on the ground that the mark applied for was caught by the grounds for refusal set out in Article 7(1)(b) and (c) and 7(2) of Regulation No 207/2009.

7        On 29 November 2016, the applicant filed a notice of appeal with EUIPO, on the basis of Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the examiner.

8        By decision of 30 August 2017 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal. It found, in essence, in paragraphs 11 to 16 of the contested decision, that it was appropriate to take account of the English-speaking public of the European Union, which was deemed to be reasonably well informed and reasonably observant and circumspect, and that that public would understand immediately, in particular English-speaking consumers who worked with cutting machines, that the mark applied for consisted of the combination of two common English words, ‘flex’ and ‘cut’, which was consistent with the rules of the English language. Since the word ‘flex’ refers to the adjective ‘flexible’, that mark would have no other meaning than ‘flexible cut’. Thus, a machine offering a ‘flexible cut’ makes it possible to perform various cuts, either by using different technology according to the material to be cut or by making it possible to perform the cuts in various shapes, straight, rounded etc.

9        The Board of Appeal concluded from its assessment, in paragraph 18 of the contested decision, that the mark applied for was descriptive, within the meaning of Article 7(1)(c) of Regulation No 207/2009. Furthermore, in paragraph 19 of that decision, it found that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

11      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

12      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.

13      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 covered by the trade mark application.

14      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 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the Union’.

15      According to 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 2015, Universal Utility International v OHIM (Greenworld), T‑106/14, not published, EU:T:2015:123, paragraph 14; and of 19 April 2016, Spirig Pharma v EUIPO (Daylong), T‑261/15, not published, EU:T:2016:220, paragraph 17).

16      Furthermore, signs or indications which may serve, in trade, to designate the characteristics of the goods or services in respect of which registration is sought are, by virtue of 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 in question, in order thereby to enable the consumer who purchases the goods or services designated by the mark to make the same choice again, on the occasion of a subsequent purchase, if it is a positive experience, or to make a different choice, if it is a negative one (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30; of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 15; and of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 18).

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

18      In order for a mark which consists of a neologism or of a word produced by a combination of elements to be regarded as descriptive for the purpose of Article 7(1)(c) of Regulation No 207/2009, it is not sufficient that each of its components may 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).

19      A trade mark consisting of a neologism or 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 those services for the purpose 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. This 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 sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, with the result that the word is more than the sum of its parts. In that connection, an analysis of the term in question in the 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).

20      It should also be borne in mind that the descriptiveness of a sign may only be assessed, first, in relation to the relevant public’s perception of it and, second, in relation 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).

21      As regards the relevant public, it is apparent from paragraph 12 of the contested decision that the goods covered by the mark applied for refer to machinery and highly specialised tools, as a result of which they are targeted at a specialist professional public. As regards the level of attention, the Board of Appeal found that the relevant consumer was deemed to be reasonably well informed and reasonably observant and circumspect.

22      Furthermore, the Board of Appeal found, in paragraph 11 of the contested decision, that since the mark applied for consisted of elements in English, the existence of absolute grounds for refusal had to be examined with regard to English-speaking consumers within the European Union and, consequently, at least consumers in Malta, Ireland and the United Kingdom.

23      The applicant concurred with those findings.

24      Therefore, pursuant to Article 7(2) of Regulation No 207/2009, since the word sign in question consisted of elements taken from English, the relevant public in relation to which the absolute ground for refusal must be assessed is an English-speaking public (see, to that effect, judgment of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 25 and the case-law cited).

25      Consequently, for the purposes of applying Article 7(1)(c) of Regulation No 207/2009, it is appropriate to examine, 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 clear and specific relationship between the word sign FLEXCUT and the goods for 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 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 26 and the case-law cited).

26      First of all, the applicant claims that the word ‘flexcut’ has no dictionary definition, is not a technical term in relation to the goods concerned and has no descriptive meaning.

27      In that regard, it must be held that the mark applied for consists of two elements, namely ‘flex’ and ‘cut’. Whereas the word ‘cut’ is undoubtedly an English word, it is not disputed that the word ‘flex’ is, as is apparent from paragraph 14 of the contested decision, a commonly used abbreviation of the term ‘flexible’.

28      Although the applicant claims that the word ‘flex’ has a wide range of meanings, it does not dispute, however, as it acknowledged at the hearing in response to a question from the Court, that that term may, as noted by the Board of Appeal, be an abbreviation of the term ‘flexible’.

29      It follows that the target public is able to understand the meaning of the words ‘flex’ and ‘cut’ (see, to that effect, judgments of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 30, and of 10 May 2012, Amador López v OHIM (AUTOCOACHING), T‑325/11, not published, EU:T:2012:230, paragraph 33).

30      Furthermore, it must be held that the combination of the words ‘flex’ and ‘cut’ follows the rule of English usage pursuant to which the adjective precedes the word, with the result that the neologism composed of the combination of those two words will be perceived as referring to a ‘flexible cut’.

31      In that regard, it should be recalled that it has already been held that such a combination of words is consistent with the rules of English syntax and grammar, and is not unusual in the structure of that language (judgment of 12 June 2007, MacLean-Fogg v OHIM (LOKTHREAD), T‑339/05, not published, EU:T:2007:172, paragraph 52).

32      Considered as a whole, the term ‘flexcut’ has a clear and unambiguous meaning in the field to which the trade mark application relates, as was correctly pointed out by the Board of Appeal in paragraph 16 of the contested decision, namely ‘flexible cut’. The sign in question will be understood as containing direct information on the quality or characteristic of the goods concerned, which is to allow several cuts to be made, ‘either by using different technology according to the material to be cut or by allowing different forms of cuts, straight, rounded, etc.’ (see contested decision, paragraph 16).

33      In accordance with the case-law referred to in paragraph 19 above, a trade mark consisting of a neologism or a word composed of elements, each of which is descriptive of characteristics of the goods in respect of which registration is sought, is itself descriptive of the characteristics of those goods 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. This assumes that, because of the unusual nature of the combination in relation to those goods, the neologism or word creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it consists, with the result that the word is more than the sum of its parts.

34      In the present case, it must be stated that the simple combination of the words ‘flex’ and ‘cut’, each of which is descriptive of a quality or characteristic of the goods concerned, is itself also descriptive of the quality and the characteristics of those goods and is merely a simple description of the functions of the goods in question.

35      It follows that, contrary to what the applicant claims, the trade mark applied for does not require the public concerned to carry out any sort of analytical work, and certainly not a considerable amount thereof, nor does it require any, even minimal, effort of interpretation, nor does it trigger any cognitive process on the part of the relevant public (see, to that effect, judgment of 24 November 2015, Intervog v OHIM (meet me), T‑190/15, not published, EU:T:2015:874, paragraph 31).

36      It follows from the foregoing that the applicant is incorrect in its submissions that there is a vague and indeterminate link between the mark applied for and the goods in question.

37      With that in mind, it should be noted that it appears from the very wording pertaining to all the goods concerned by the trade mark application that those goods have a close and direct link with cutting, including, contrary to what the applicant claims, with ‘machines and machine tools for treatment of materials and for manufacturing’, since the general nature of that wording specifically makes it possible to include cutting machines therein (see, to that effect, judgment of 7 June 2001, DKV v OHIM (EuroHealth), T‑359/99, EU:T:2001:151, paragraph 33). Moreover, that close and direct link is intrinsic as regards, on the one hand, ‘cutting machines, and parts thereof’ and ‘plasma cutting machines’, whose purpose is to make cuts, and, on the other, ‘power supplies for cutting machines’ and ‘power supplies for plasma cutting machines’ since those items are essential to the working of cutting machines.

38      Secondly, as regards the applicant’s argument that the word ‘flex’ could have several meanings, as a result of which the public concerned would have to carry out considerable analytical work in order to assign a clear and precise meaning to the wording, it should be recalled that, pursuant to Article 7(1)(c) of Regulation No 207/2009, a word sign must be refused registration if at least one of its possible meanings designates a characteristic of the goods or services concerned (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32; see also, by analogy, judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 97).

39      Since, in one of its meanings, the word ‘flexcut’ will enable the public, in respect of the products at issue, to understand immediately and without effort that that term refers to a quality or characteristic of those goods, namely to enable a ‘flexible cut’, the Board of Appeal did not err in holding that the ground of refusal under Article 7(1)(c) of Regulation No 207/2009 was applicable.

40      In addition, the criterion according to which the sign at issue is descriptive is not, contrary to what the applicant claims, that the relevant public establishes a direct and immediate connection between the sign in question and specific goods or services, but that, in the light of the goods and services specified in the application for registration, the sign designates, in the minds of the relevant public, one or more of the characteristics of those goods or services (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 27 February 2015, Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 33).

41      Thirdly, as regards the applicant’s argument alleging that the mark applied for is a special combination forming a single word, without spaces, in capital letters, which does not exist, it should be recalled that, in paragraph 26 of the judgment of 12 January 2000, DKV v OHIM (COMPANYLINE) (T‑19/99, EU:T:2000:4), the General Court held that the addition of the words ‘company’ and ‘line’, without any graphic or semantic modification, did not imbue them with any additional characteristic such as to render the sign as a whole capable of distinguishing the applicant’s services from those of other undertakings, and added that the fact that the sign COMPANYLINE was not cited in dictionaries as such — whether as one word or otherwise — does not in any way alter that assessment (judgment of 19 September 2002, DKV v OHIM, C‑104/00 P, EU:C:2002:506, paragraph 23; see also, to that effect, judgments of 12 June 2007, LOKTHREAD, T‑339/05, not published, EU:T:2007:172, paragraph 53, and of 10 May 2012, AUTOCOACHING, T‑325/11, not published, EU:T:2012:230, paragraph 38).

42      That same finding applies in the present case, with the result that the fact, relied on by the applicant, that the sign FLEXCUT does not appear in dictionaries as such — whether as one word or otherwise — does not in any way alter the finding that that sign is descriptive of the goods and services concerned for the purposes of Article 7(1)(c) of Regulation No 207/2009, particularly because, according to the case-law referred to in paragraph 15 above, that provision pursues an aim in the public interest, which requires that such signs or indications may be freely used by all.

43      Furthermore, the argument based on the fact that the mark applied for is written in capital letters is manifestly irrelevant.

44      It should be noted that, according to settled case-law, a word mark is a mark consisting entirely of letters, of words or of associations of words, written in printed characters in normal font, without any specific graphic element. The protection which results from registration of a word mark concerns the word mentioned in the application for registration and not the specific graphic or stylistic elements accompanying that mark (see judgment of 3 July 2013, Airbus v OHIM (NEO), T‑236/12, EU:T:2013:343, paragraph 39 and the case-law cited).

45      Fourthly, the applicant submits that, even if EUIPO is not bound by the registration of marks containing the word ‘flex’ or ‘cut’ whose structure is similar to the mark applied for, the Board of Appeal should, however, have taken account of those earlier registrations of similar trade marks.

46      In that regard, it should be recalled that it has admittedly been held that EUIPO must, when examining an application for registration of an EU trade mark, take account of 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 24 November 2015, meet me, T‑190/15, EU:T:2015:874, paragraph 39).

47      However, those principles must be reconciled 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 (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 75 and 76, and of 24 November 2015, meet me, T‑190/15, not published, EU:T:2015:874, paragraph 40).

48      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 24 November 2015, meet me, T‑190/15, not published, EU:T:2015:874, paragraph 41).

49      Finally, it must be borne in mind that, according to settled case-law, decisions concerning 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. Accordingly, the question whether a sign may be registered as an EU trade mark must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of a previous practice of the Boards of Appeal (judgments of 15 September 2015, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47, and of 24 November 2015, meet me, T‑190/15, not published, EU:T:2015:874, paragraph 42).

50      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 claims that that examination led the Board of Appeal to find, correctly, that the absolute ground for refusal to register referred to in Article 7(1)(c) of Regulation No 207/2009 existed and thus precluded registration of the trade mark applied for. Since the examination of the mark applied for in the light of that provision could not, in itself, lead to a different conclusion, the applicant’s claims relating to the failure to take into consideration the registration of other marks cannot be upheld. In order to cast doubt on the conclusion that the registration of the trade mark applied for is incompatible with Regulation No 207/2009, the applicant may thus not properly rely on a previous decision of EUIPO.

51      Finally, as regards the applicant’s argument relying on the registration of the trade mark FLEXCUT in the United States in respect of identical goods, without any objection being raised in that regard, it should be recalled that, according to settled case-law, the EU trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it is self-sufficient and applies independently of any national system (judgments of 5 December 2000, Messe München v OHIM (electronica), T‑32/00, EU:T:2000:283, paragraph 47, and of 12 June 2007, LOKTHREAD, T‑339/05, not published, EU:T:2007:172, paragraph 57). Consequently, the registrability of a sign as an EU trade mark must be assessed by reference to the relevant EU rules alone. Accordingly, EUIPO and, where applicable, the EU judicature are not bound by a decision given in a third country that the sign in question is registrable as a national mark (see judgment of 19 April 2016, Daylong, T‑261/15, not published, EU:T:2016:220, paragraph 63 and the case-law cited).

52      It follows from all of the foregoing that the first plea, alleging infringement of Article 7(1)(c) of Regulation No 207/2009, must be rejected.

53      As regards the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009, inasmuch as the word sign FLEXCUT is distinctive, it must be borne in mind that, as is clearly apparent 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 (judgment of 19 September 2002, DKV v OHIM, C‑104/00 P, EU:C:2002:506, paragraph 29; 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).

54      There is therefore no need to rule on the second plea, alleging infringement of Article 7(1)(b) of Regulation No 207/2009.

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

 Costs

56      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 Lincoln Global, Inc., to pay the costs.

Delivered in open court in Luxembourg on 4 October 2018.

*      Language of the case: English.

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