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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

13 May 2020 (*)

(EU trade mark — Application for the EU figurative mark pantys — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EU) 2017/1001 — No distinctive character acquired through use — Article 7(3) of Regulation 2017/1001)

In Case T‑532/19,

EC Brand Comércio, Importação e Exportação de Vestuário em Geral Ltda, established in Sorocaba (Brazil), represented by B. Bittner and U. Heinrich, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Walicka, acting as Agent,

defendant,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 22 May 2019 (Case R 314/2019-5), relating to an application for registration of the figurative mark pantys as an EU trade mark,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, C. Iliopoulos and R. Norkus (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 29 July 2019,

having regard to the response lodged at the Court Registry on 17 October 2019,

having regard to the fact that no request for a hearing was submitted by the 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 6 March 2018, the applicant, EC Brand Comércio, Importação e Exportação de Vestuário em Geral Ltda, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to 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 mark was sought for the following figurative sign:

3        The goods in respect of which registration was sought are in Classes 5, 25 and 35 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, inter alia, to the following description:

–        Class 5: ‘Hygienic absorbents; sanitary napkins; sanitary briefs; sanitary towels; incontinence pads; protectors for panties [hygiene products]; hygienic panties; hygienic pants’;

–        Class 25: ‘Liners made of layers of fabric for underwear; women’s underwear; modeling belts, namely panties; women’s lingerie; maternity clothes, namely panties’;

–        Class 35: ‘Online retail trade services of women’s underwear, lingerie, underwear and sanitary products’.

4        By decision of 10 December 2018, the examiner rejected the application for registration on the basis of Article 7(1)(b) and (c) of Regulation 2017/1001, read in conjunction with Article 7(2) of that regulation, in respect of the goods and services referred to in paragraph 3 above, on the ground that the sign applied for (i) lacked distinctive character and (ii) was descriptive.

5        On 8 February 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the examiner’s decision.

6        By decision of 22 May 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. In the first place, as regards the relevant public, the Board of Appeal found that it consisted of the public at large, whose level of attention is average. In the second place, it noted that the link between the mark applied for, which is a misspelling of the English word ‘panties’, and the goods and services at issue was sufficiently close for the sign to be regarded as descriptive within the meaning of Article 7(1)(c) of Regulation 2017/1001. In the third place, it rejected the applicant’s arguments that that mark had acquired distinctive character through use within the meaning of Article 7(3) of that regulation. In that regard, the Board of Appeal found that it was not possible to conclude on the basis of the evidence submitted by the applicant that the mark had become, in itself, distinctive from the perspective of the relevant public on the date on which the application for registration was filed.

 Forms of order sought

7        The applicant claims that the Court should:

–        annul the contested decision, in so far as it dismissed the appeal, as regards, on the one hand, certain goods in Class 5, namely ‘sanitary absorbents, sanitary towels, incontinence pads’ and, on the other, certain services in Class 35, namely ‘online retail trade services of women’s sanitary products’;

–        order EUIPO to pay the costs.

8        EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

9        In support of its action, the applicant relies on three pleas in law, alleging (i) infringement of Article 7(1)(c) of Regulation 2017/1001, (ii) infringement of Article 7(1)(b) of that regulation and, (iii) infringement of Article 7(3) of the regulation.

 The first plea, alleging infringement of Article 7(1)(c) of Regulation 2017/1001

10      The applicant claims, in essence, that the Board of Appeal erred in finding that the mark applied for was descriptive in respect of certain goods in Class 5, namely ‘sanitary absorbents, sanitary towels, incontinence pads’ and certain services in Class 35, namely ‘online retail trade services of women’s sanitary products’.

11      EUIPO disputes all the arguments put forward by the applicant.

12      Article 7(1)(c) of Regulation 2017/1001 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 cannot be registered.

13      The signs or indications referred to in Article 7(1)(c) of Regulation 2017/1001 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 (judgments of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 30, and of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 37).

14      It follows that, for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation 2017/1001, there must be a sufficiently direct and specific relationship between the sign and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or one of their characteristics (see judgments of 12 January 2005, Deutsche Post EURO EXPRESS v OHIM (EUROPREMIUM), T‑334/03, EU:T:2005:4, paragraph 25 and the case-law cited, and of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB), T‑19/04, EU:T:2005:247, paragraph 25 and the case-law cited).

15      Accordingly, a sign’s descriptiveness can only be assessed by reference to the goods or services concerned and to the way in which it is understood by the relevant public (judgments of 16 March 2006, Telefon & Buch v OHIM — Herold Business Data (WEISSE SEITEN), T‑322/03, EU:T:2006:87, paragraph 90, and of 18 November 2014, Think Schuhwerk v OHIM — Müller (VOODOO), T‑50/13, not published, EU:T:2014:967, paragraph 20).

16      The arguments put forward by the parties relating to the assessment made by the Board of Appeal in the contested decision must be examined in the light of those principles.

17      In the first place, it should be noted that, in paragraph 13 of the contested decision, the Board of Appeal found that the goods and services at issue are aimed at the public at large, whose level of attention is average. The applicant does not dispute the Board of Appeal’s assessment. Moreover, there is no evidence in the file capable of casting doubt on that assessment. Furthermore, in so far as, in the present case, the Board of Appeal essentially endorsed the examiner’s observations and based its reasoning in the contested decision on the trade mark’s meaning in English, the descriptiveness of that trade mark must be assessed by reference to how it is perceived by the average English-speaking consumer.

18      In the second place, for the purpose of applying Article 7(1)(c) of Regulation 2017/1001, it is necessary to consider, on the basis of a given meaning of the sign in question, whether, from the point of view of the relevant public, there is a sufficiently direct and specific association between the sign at issue and the goods or the services in respect of which registration is sought (see, to that effect, judgment of 27 October 2016, Caffè Nero Group v EUIPO (CAFFÈ NERO), T‑29/16, not published, EU:T:2016:635, paragraph 22).

19      In that regard, the Board of Appeal, like the examiner, found, in paragraph 14 of the contested decision, that the word element ‘pantys’ of the mark applied for is a misspelling of the English word ‘panties’, which denotes a form of women’s underwear.

20      In that respect, the Board of Appeal observed, in paragraph 16 of the contested decision, that the word ‘panties’ is defined in various English dictionaries as ‘women’s or girls’ underpants, especially short-legged or legless pants with an elasticated waist; tights, pantyhose’.

21      The Court upholds those findings of the Board of Appeal. The word element ‘pantys’ of the mark applied for will be perceived by the relevant public as a term denoting a form of women’s underwear, namely panties. When used to designate the goods at issue, which are all sanitary products, especially for women, that term will be immediately understood by the relevant public as describing the properties of those goods, namely, on the one hand, that they may be offered in the form of panties and, on the other, that they may be incorporated in that type of women’s underwear. In those circumstances, it is clear that there is a sufficiently direct association, in accordance with the case-law cited in paragraphs 14 and 18 above, between the goods at issue and the mark applied for.

22      None of the applicant’s arguments can cast doubt on those findings.

23      In the first place, the applicant’s argument that the existence of the word element ‘pantys’ of the mark applied for cannot be proved from a lexical standpoint cannot succeed. Contrary to the applicant’s submission, the Board of Appeal is not required to prove that that word element appears in the dictionary. The registrability of a sign as an EU trade mark must be assessed solely on the basis of the relevant EU legislation, as interpreted by the EU judicature. Therefore, it is sufficient that the Board of Appeal applied the descriptiveness test, as interpreted by case-law, in order to reach its decision, and it is not obliged to justify its decision by producing evidence (judgments of 8 July 2004, Telepharmacy Solutions v OHIM (TELEPHARMACY SOLUTIONS), T‑289/02, EU:T:2004:227, paragraph 54, and of 21 January 2009, Korsch v OHIM (PharmaCheck), T‑296/07, not published, EU:T:2009:12, paragraph 44).

24      Moreover, even assuming that, as argued by the applicant, the term ‘pantys’ is not used in everyday language as a descriptive indication in relation to the goods and services covered by the mark applied for, that is irrelevant in the present case. In order for EUIPO to refuse to register a trade mark under Article 7(1)(c) of Regulation 2017/1001, it is not necessary that the signs and indications of which the mark is made up actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes (judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32), which is the situation in the present case (see paragraph 30 below).

25      In those circumstances, there is no need, in any event, to rule on the admissibility of the dictionary extract set out in Annex A6 to the application and submitted by the applicant for the first time before the Court.

26      In the second place and in the same context, the applicant also claims that the fact that the mark applied for is not in keeping with the rules of English usage confers, in essence, a perceptible difference on the mark in comparison with the correct spelling of the word, which will draw the relevant public’s attention.

27      That argument cannot be accepted. First, the Board of Appeal’s finding that the word element ‘pantys’ of the mark applied for does not differ from everyday language in such a way that the relevant public would regard it as more than a mere misspelling of the English word ‘panties’ (see paragraphs 14 to 18 of the contested decision) must be approved.

28      Secondly, the presence of the letter ‘s’ at the end of the word element ‘pantys’ of the mark applied for does not confer any originality on that word element, even though, according to the grammatical rules of English, the plural of the English word ‘panty’ is ‘panties’. In that regard, it should be recalled that misspellings are not generally of assistance in overcoming a refusal to register a sign stemming from the fact that the content of the sign will immediately be understood as laudatory or descriptive (see, to that effect, judgment of 21 March 2014, FTI Touristik v OHIM (BigXtra), T‑81/13, not published, EU:T:2014:140, paragraph 40 and the case-law cited). Furthermore, a misspelling does not generally amount to evidence of any creative aspect capable of distinguishing the applicant’s goods and services from those of other undertakings (see, to that effect, judgment of 16 October 2018, DNV GL v EUIPO (Sustainablel), T‑644/17, not published, EU:T:2018:684, paragraph 23).

29      Thirdly, when the misspelling of a word mark is not perceptible phonetically, it has no effect on the possible conceptual content the relevant public will attribute to that mark (see, to that effect, judgment of 26 November 2008, Avon Products v OHIM (ANEW ALTERNATIVE), T‑184/07, not published, EU:T:2008:532, paragraph 26).

30      In that respect, it should be noted that, in the present case, the misspelling of the word element ‘pantys’ of the mark applied for is visually rather than phonetically perceptible, with the result that it will have only a limited effect on the relevant public’s perception of that word element. Thus, when faced with that mark, the consumer concerned will perceive it as a variation of the English word ‘panty’, notwithstanding the addition of the final letter ‘s’, especially as the plural of that word is ‘panties’. That word is a common word in English that may describe, as stated in paragraph 21 above, one of the relevant properties of the goods at issue, namely that they may be offered in the form of panties or incorporated in that type of women’s underwear.

31      It follows that the word element ‘pantys’ of the mark applied for will, despite the misspelling, immediately be perceived and understood by the relevant public as meaning ‘panty’ or ‘panties’, which will eclipse any impression that might be given by that mark as to the commercial origin of the goods and services at issue, such that the mark will not be remembered by that public as an indication of commercial origin.

32      In the third place, the applicant refers in its written pleadings to decisions of certain German courts for the purpose of relying on some of the findings made in those decisions in relation, in particular, to the use and characteristics of some of the goods in Class 5.

33      In that regard, it must be borne in mind that the EU trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it, and that that system applies independently of any national system. Accordingly, the registrability of a sign as an EU trade mark is to be assessed on the basis of the relevant legislation alone. Neither EUIPO nor, as the case may be, the EU judicature is bound — even if they may take them into consideration — by decisions adopted in a Member State, or even a third country, and there is no provision in Regulation 2017/1001 requiring EUIPO or, on appeal, the General Court, to come to the same conclusions as those arrived at by national administrative or judicial authorities in similar circumstances (see judgment of 15 July 2015, Australian Gold v OHIM — Effect Management & Holding (HOT), T‑611/13, EU:T:2015:492, paragraph 60 and the case-law cited).

34      In any event, it is clear that the decision of the German Patent Court is not relevant in the present case in so far as that decision relates to the similarity between goods in Class 5 and goods in Class 25, whereas the present action covers only goods in Class 5 and services in Class 35.

35      As to the descriptiveness of the mark applied for in relation to online retail trade services of women’s sanitary products in Class 35, it must be noted that the mark applied for was found in paragraph 21 above to be descriptive in respect of the goods at issue, on the ground, inter alia, that there is a link between them. Thus, where the relevant public is faced with the obvious meaning of that trade mark when deciding to purchase those goods, the word element ‘pantys’ of that mark will also be descriptive of the sale of those goods, whether in the context of retail trade or via the internet (see, to that effect, judgment of 10 September 2015, Volkswagen v OHIM (STREET), T‑321/14, not published, EU:T:2015:619, paragraph 19).

36      In the light of those findings, the first plea must be rejected as unfounded.

 The second plea, alleging infringement of Article 7(1)(b) of Regulation 2017/1001

37      By this plea, the applicant appears to take issue with the Board of Appeal for failing to provide any details regarding the distinctive character of the mark applied for, even though, in its view, the mark applied for is distinctive.

38      EUIPO disputes the applicant’s arguments.

39      Even assuming that the applicant’s argument is to be understood as taking issue with the Board of Appeal for failing to rule on the possible distinctive character of the mark applied for, it should be recalled that, according to settled case-law, it is clear from the wording of Article 7(1) Regulation 2017/1001 that it is sufficient that one of the absolute grounds for refusal listed in that provision applies for the sign applied for not to be registrable 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, paragraphs 27 and 28, and judgment of 2 May 2012, Universal Display v OHIM (UniversalPHOLED), T‑435/11, not published, EU:T:2012:210, paragraph 41).

40      In the present case, having established that the ground for refusal laid down in Article 7(1)(c) of Regulation 2017/1001 was applicable, the Board of Appeal was not, in any event, required to examine whether the mark applied for was distinctive within the meaning of Article 7(1)(b) of that regulation.

41      In any event, as the Board of Appeal was fully entitled to find that the mark applied for was descriptive within the meaning of Article 7(1)(c) of that regulation (see paragraph 21 above), it is not necessary, in the light of the case-law cited in paragraph 39 above, to assess the merits of a head of claim alleging infringement of Article 7(1)(b) of that regulation.

42      The second plea must therefore be rejected.

 The third plea, alleging, in essence, infringement of Article 7(3) of Regulation 2017/1001

43      As a preliminary point, it should be noted that, under the third plea, the applicant does not rely on any particular provision that may have been infringed by the Board of Appeal.

44      It can be easily inferred from the applicant’s written pleadings, in particular from the heading of the third plea, that, in arguing that ‘the mark applied for has been widely used in the EU’, the applicant seeks to demonstrate that the mark has acquired distinctive character through use, within the meaning of Article 7(3) of Regulation 2017/1001.

45      In that regard, the applicant claims that the Board of Appeal did not attach probative value to evidence that it produced in the proceedings before EUIPO. In particular, the applicant complains that the Board of Appeal did not take into consideration, as relevant evidence, an order in Annex A9 to the application, on the ground that it was drawn up after the date on which the application for registration was filed.

46      EUIPO disputes the applicant’s arguments.

47      It must be borne in mind that Article 7(3) of Regulation 2017/1001 does not provide an independent right to have a trade mark registered. It is an exception to the grounds for refusal listed in Article 7(1)(b) to (d) of Regulation 2017/1001 (see judgment of 6 July 2011, Audi and Volkswagen v OHIM (TDI), T‑318/09, EU:T:2011:330, paragraph 40 and the case-law cited).

48      Under Article 7(3) of Regulation 2017/1001, the absolute grounds for refusal contained in Article 7(1)(b) to (d) of that regulation do not preclude registration of a mark if, as a consequence of the use which has been made of it, the mark has become distinctive in relation to the goods or services for which registration is sought.

49      In the circumstances referred to in Article 7(3) of Regulation 2017/1001, the fact that the sign which constitutes the mark in question is actually perceived by the relevant public as an indication of the commercial origin of goods or services is the result of an economic effort made by the trade mark applicant. That fact justifies putting aside the public-interest considerations underlying Article 7(1)(b) to (d) of Regulation 2017/1001, which require that the marks referred to in those provisions may be freely used by all in order to avoid conceding an unjustified competitive advantage to a single trader (judgments of 3 December 2003, Audi v OHIM (TDI), T‑16/02, EU:T:2003:327, paragraph 50, and of 14 December 2017, bet365 Group v EUIPO — Hansen (BET 365), T‑304/16, EU:T:2017:912, paragraph 25).

50      In the first place, the acquisition of distinctive character through use of a mark requires that the relevant public identifies the goods or services concerned as originating from a particular undertaking because of the mark. That identification must be as a result of the use of the sign as a trade mark and thus as a result of the nature and effect of it, which make it capable of distinguishing the goods or services concerned from those of other undertakings (see judgment of 29 September 2010, CNH Global v OHIM (Combination of the colours red, black and grey for a tractor), T‑378/07, EU:T:2010:413, paragraphs 28 and 29 and the case-law cited).

51      In the second place, for a trade mark to be registrable on the basis of Article 7(3) of Regulation 2017/1001, distinctive character acquired in consequence of the use of that mark must be demonstrated in the part of the European Union in which it did not have such character for the purposes of Article 7(1)(b) to (d) of that regulation (see judgment of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraph 75 and the case-law cited).

52      In the third place, a mark must have become distinctive through use before the application for registration was filed (see judgment of 29 September 2010, Combination of the colours red, black and grey for a tractor, T‑378/07, EU:T:2010:413, paragraph 34 and the case-law cited).

53      In the fourth place, in determining whether the sign in question has acquired distinctive character as a consequence of the use which has been made of it, an overall assessment must be made of the evidence that the mark has come to identify the goods or services concerned as originating from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. For the purposes of that assessment, the following items may be taken into consideration: the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see judgment of 29 September 2010, Combination of the colours red, black and grey for a tractor, T‑378/07, EU:T:2010:413, paragraphs 31 and 32 and the case-law cited).

54      In the fifth place, the distinctive character of a sign, including that acquired through use, must be assessed in relation, first, to the goods or services in respect of which registration of the mark is applied for and, secondly, to the presumed perception of an average consumer of the category of goods or services in question, who is reasonably well informed and reasonably observant and circumspect (see judgment of 28 October 2009, BCS v OHIM — Deere (Combination of the colours green and yellow), T‑137/08, EU:T:2009:417, paragraph 29 and the case-law cited).

55      It is in the light of those considerations that the Court must examine whether, in the present case, the Board of Appeal erred in finding that the mark applied for had not acquired distinctive character in consequence of the use which had been made of it, within the meaning of Article 7(3) of Regulation 2017/1001.

56      In the present case, it is clear from the contested decision and from EUIPO’s file that the applicant submitted, during the administrative procedure, as evidence to establish the distinctive character acquired through use of the mark applied for, two types of document, namely, first, an order for goods sold by it dated 29 September 2017 and, second, statistics for the number of visitors to its website, in particular from the United Kingdom and Ireland.

57      In that regard, it should be recalled, as stated in the paragraph 51 above, that a mark can be registered under Article 7(3) of Regulation 2017/1001 only if evidence is provided that it has acquired, in consequence of the use which has been made of it, distinctive character in the part of the European Union concerned by the ground for refusal to register.

58      As regards, in the first place, the order provided by the applicant dated 29 September 2017, it must be noted that, as that document was drawn up, contrary to what is stated in paragraph 27 of the contested decision, before the date on which the application for registration of the mark sought was filed, namely 6 March 2018, the Board of Appeal erred in finding it to be evidence that was established after the filing of the mark at issue.

59      Furthermore, it should be recalled that EUIPO cannot be precluded from taking into consideration evidence which, although subsequent to the date on which the application was filed, enables conclusions to be drawn with regard to the situation as it stood prior to that date (see, by analogy, judgment of 17 July 2008, L & D v OHIM, C‑488/06 P, EU:C:2008:420, paragraph 71 and the case-law cited).

60      However, that error is not of such a kind as to lead to the annulment of the contested decision.

61      Irrespective of the issue of the date established by the Board of Appeal as to when the document in question had been drawn up, it should be noted that, since the Board of Appeal found in paragraph 27 of the contested decision that that document comes from a Portuguese consumer, it is not, in any event, capable of demonstrating the perception of the mark applied for by the relevant public, which in this case is the English-speaking public, as also found, in essence, by the Board of Appeal. In those circumstances, the applicant’s head of claim that the document in question was drawn up before the date on which the mark applied for was filed must be rejected as ineffective.

62      As regards, in the second place, the statistics relating to visits to the applicant’s website, it should be noted, first, that the document contains no indication as to the period covered by those data. It is therefore not possible, as the Board of Appeal stated in paragraph 27 of the contested decision, to determine whether that document relates to a relevant period.

63      Secondly, it must be noted, as EUIPO correctly observes, that there is no indication in the file that the purpose of those website visits was in fact to purchase goods sold by the applicant.

64      Thirdly, even assuming that the purpose of those visits had actually been to purchase the goods at issue and that those visits took place in a relevant period, the figures of 1 569 visits from the United Kingdom and 1 140 visits from Ireland are clearly a particularly low total in the light of the respective populations of those two countries.

65      Accordingly, it must be held that the Board of Appeal did not err in law in finding that that item of evidence did ‘not substantiate the claim that the mark acquired distinctiveness through use’.

66      In the light of the foregoing, and even assuming that the statistics provided by the applicant related to the relevant period, that would not, in any event, have been such as to alter the Board of Appeal’s finding in paragraph 27 of the contested decision that the mark applied for had not acquired distinctive character. The evidence produced by the applicant before the Board of Appeal is, as is apparent from paragraphs 60 to 65 above, manifestly insufficient, in terms of both quality and quantity, in the absence of the other items of evidence, as referred to in paragraph 55 above, for the purposes of showing that the relevant public or, at the very least, a significant proportion thereof, would identify the goods and services at issue as originating from the applicant because of that mark.

67      The Board of Appeal therefore did not make any error of assessment in finding that it was not possible to conclude that the mark applied for had acquired distinctive character through use on the basis of the evidence submitted of use of that mark.

68      In the light of all the foregoing, the plea alleging infringement of Article 7(3) of Regulation 2017/1001 must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.

 Costs

69      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. 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 (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders EC Brand Comércio, Importação e Exportação de Vestuário em Geral Ltda to pay the costs.

Delivered in open court in Luxembourg on 13 May 2020.

*      Language of the case: English.

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