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

JUDGMENT OF THE GENERAL COURT (Single Judge)

1 February 2023 (*)

(EU trade mark – Opposition proceedings – Application for the EU figurative mark GC GOOGLE CAR – Earlier EU word mark GOOGLE – Relative ground for refusal – Taking unfair advantage of the distinctive character or repute of the earlier mark – Article 8(5) of Regulation (EU) 2017/1001)

In Case T‑568/21,

Zoubier Harbaoui, residing in Paris (France), represented by A. Bove, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by L. Lapinskaite, M. Eberl and V. Ruzek, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Google LLC, established in Mountain View, California (United States), represented by M. Kinkeldey and C. Schmitt, lawyers,

THE GENERAL COURT (Single Judge),

Judge: G. Steinfatt,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the written part of the procedure,

having regard to the decision of the General Court (Third Chamber), pursuant to Article 14(3) and Article 29 of the Rules of Procedure of the General Court, to assign the case to G. Steinfatt, sitting as a single Judge,

further to the hearing on 15 September 2022,

gives the following

Judgment

1        By his action under Article 263 TFEU, the applicant, Mr Zoubier Harbaoui, seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 June 2021 (Case R 902/2020-1) (‘the contested decision’).

 Background to the dispute

2        On 9 January 2019, the applicant filed an application for registration of an EU trade mark in respect of the following figurative sign:

3        The mark applied for covered goods in Class 12 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, corresponding to the following description: ‘Vehicles and conveyances’.

4        On 20 May 2019, the intervener, Google LLC, filed a notice of opposition to registration of the mark applied for in respect of all the goods referred to in paragraph 3 above.

5        The opposition was based on 13 earlier EU trade marks, including EU word mark No 1104306 GOOGLE, filed on 12 March 1999 and registered on 7 October 2005 for goods and services in Classes 9, 35, 38 and 42 and corresponding, for each of those classes, to the following description:

–        Class 9: ‘Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus; computer software; computers; computer hardware; electronic and electromechanical peripheral apparatus, all for use with computers; computer networks; computer programmes and programming languages; microprocessors; circuit boards; computer accessories; business machines; office accessories; semi-conductors; computers displays; computers monitors; video monitors; projectors; integrated circuits; storage and network controllers and devices; data recorded magnetically, electronically, or optically; instructional material relating to computers and to data, all recorded magnetically, optically or electronically; magnetic, optical and electronic data recording materials’;

–        Class 35: ‘Compiling, storing, analysing and retrieving data and information; maintaining, indexing and electronically distributing information materials; creating indexes of information, websites and other information sources’;

–        Class 38: ‘Telecommunications and communications services; provision of access to electronic communication networks and the Internet and extranets; arranging commercial transactions over electronic communication networks; electronic transmission of mail and messages; internet service provider services; information relating to the aforesaid, including such services provided online from a computer network or via the Internet or extranets; transferring and disseminating information and data via computer networks and the Internet; providing electronic mail and workgroup communications services’;

–        Class 42: ‘Computers services: consulting, design, testing, research, analysis, timesharing, technical support and other technical and advisory services, all relating to computing and computer programming: web site design, creation and hosting services; website portal services; research, development, design and upgrading of computer software; database leasing; providing access to, leasing access time to, and providing search, retrieval, indexing, linking and data organisation capabilities for the Internet, electronic communications networks and electronic databases; Internet service provider services; providing access to proprietary collections of information; website search engine services; information, consultancy and advisory services, all relating to the aforesaid, including such services provided online from a computer network or via the Internet or extranets; consultancy and advisory services, all relating to telecommunications and communications services, to the provision of access to electronic communication networks and the Internet and extranets, to arranging commercial transactions over electronic communication networks, to electronic transmission of mail and messages, to Internet service provider services; including such services provided online from a computer network or via the Internet or extranets; providing software interfaces available over a network in order to provide personalised access to a global computer information network for the transfer and dissemination of information in the fields of news, science, health, family, home, society, entertainment, sports, education, travel, business and financial information in the nature of text, electronic documents, databases, graphics and audiovisual information’.

6        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and Article 8(5) of 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)

7        By decision of 4 March 2020, the Opposition Division upheld the opposition on the basis of Article 8(5) of Regulation 2017/1001 in respect of all the goods referred to in paragraph 3 above.

8        On 13 May 2020, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By the contested decision, the First Board of Appeal of EUIPO dismissed the appeal. It found that the necessary conditions for the application of Article 8(5) of Regulation 2017/1001 were met in the present case. In the first place, the Board of Appeal found that the earlier mark had an extremely strong reputation, related to its information technology, on account of the fact that its internet search engine is an everyday research tool. In the second place, the Board of Appeal considered that the signs at issue had an average degree of similarity. In the third place, it found that there was a link between the marks at issue. In the fourth place, the Board of Appeal found that the use of the mark applied for was liable to take unfair advantage of the reputation of the earlier mark, in the light of the strength of its reputation and the similarity of the marks at issue and of the fact that the mark applied for refers expressly to the earlier mark.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO and the intervener to pay the costs.

11      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

12      The applicant relies on a single plea in law, alleging infringement of Article 8(5) of Regulation 2017/1001, divided into three parts alleging (i) incorrect visual and conceptual comparison of the signs at issue, (ii) incorrect assessment of the existence of a link between the marks at issue, and (iii) incorrect assessment of the risk of unfair advantage.

 The first part of the single plea, alleging incorrect visual and conceptual comparison of the signs at issue

13      The applicant alleges that the Board of Appeal made an error of assessment in its comparison of the signs at issue, in so far as it found that there is an average degree of similarity between the marks, whereas the applicant argues that, in actual fact, that degree of similarity is at most low or very low.

14      EUIPO and the intervener dispute the applicant’s arguments.

15      Article 8(5) of Regulation 2017/1001 provides that upon opposition by the proprietor of a registered earlier trade mark within the meaning of paragraph 2, the trade mark applied for is not to be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier EU trade mark, the trade mark has a reputation in the European Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned, and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

16      The assessment of the visual, phonetic or conceptual similarity of the marks at issue must be based on the overall impression given by those signs, bearing in mind, in particular, their distinctive and dominant elements (see judgment of 28 April 2021, Asolo v EUIPO – Red Bull (FLÜGEL), T‑509/19, not published, EU:T:2021:225, paragraph 88 and the case-law cited). It entails more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining the marks at issue, each considered as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (see, by analogy, judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 42).

17      In the present case, the applicant does not challenge the Board of Appeal’s assessment that the marks at issue have an average degree of phonetic similarity.

 Visual similarity

18      According to the applicant, the Board of Appeal incorrectly based its assessment of the visual similarity on the element ‘google’ alone. However, that element is in actual fact negligible in the overall impression of the sign applied for owing to its graphic form.

19      In paragraph 24 of the contested decision, the Board of Appeal observed that, from a visual standpoint, the element ‘gc’ was dominant. However, the fact that the earlier mark GOOGLE is incorporated into the sign of the mark applied for and forms an independent element thereof results in the signs at issue having an average degree of visual similarity.

20      Accordingly, the Board of Appeal did not base its assessment of visual similarity solely on the element ‘google’ in the mark applied for, as the applicant appears to complain.

21      On the contrary, the Board of Appeal began by observing that the element ‘gc’ was the dominant element. Although it found that the marks at issue had an average degree of visual similarity, that assessment takes account of case-law according to which two marks are similar when, from the point of view of the relevant public, they are at least partially identical in one or more relevant aspects, that is, the visual, phonetic and conceptual aspects (see, to that effect, judgment of 26 January 2006, Volkswagen v OHIM – Nacional Motor (Variant), T‑317/03, not published, EU:T:2006:27, paragraph 46 and the case-law cited).

22      As observed by the Board of Appeal in paragraph 24 of the contested decision, the word constituting the earlier mark is incorporated entirely into the mark applied for and forms an independent element thereof. This is an indication that those two marks are similar (see judgment of 20 April 2018, holyGhost v EUIPO – CBM (holyGhost), T‑439/16, not published, EU:T:2018:197, paragraph 33 and the case-law cited).

23      The applicant’s other arguments that (i) consumers generally pay more attention to the beginning of a word sign or a sign containing a word element than to its end and (ii) the word element ‘google’ is negligible in the overall impression of the sign owing to its graphic form cannot, similarly, be upheld.

24      First, in finding that the element ‘gc’ is the dominant element of the mark applied for, the Board of Appeal correctly took into consideration the principle recalled by the applicant that consumers generally pay more attention to the beginning of a word sign, and the fact that the element ‘gc’ is larger than the other word elements.

25      Second, even though the element ‘gc’ is a large element situated at the beginning of the mark applied for and, according to the Board of Appeal, is its dominant visual element, the word element ‘google’ does not go unnoticed because, even though it is written in smaller letters and positioned in the middle of the mark applied for, it has the same width as the first word element under which it is situated and it is clearly legible. Thus, it cannot be regarded as negligible in the overall impression of the mark applied for but, on the contrary, as indicating an average degree of visual similarity between the marks at issue.

26      It follows from the foregoing that the Board of Appeal did not commit an error of assessment in finding that the signs at issue have an average degree of visual similarity.

 Conceptual similarity

27      According to the applicant, the Board of Appeal’s finding that the signs at issue are conceptually similar is incorrect.

28      It should be noted from the outset that, in the contested decision, the outcome of the Board of Appeal’s conceptual comparison had no effect on the outcome of the comparison of the signs at issue as a whole.

29      The Board of Appeal found, in paragraphs 24 and 25 of the contested decision, that the signs at issue had an average degree of visual and phonetic similarity. In paragraph 28 of the contested decision, it found that the signs at issue had a high degree of conceptual similarity. In paragraph 29 of the contested decision, the Board of Appeal found that there was at least an average degree of similarity between the signs at issue.

30      That last finding already follows from the visual and phonetic comparisons.

31      Consequently, even if it were the case that, as the applicant maintains, the word ‘google’ has no specific meaning and a conceptual comparison is not possible, the Board of Appeal should still have found that there is an average degree of similarity overall between the signs at issue. Accordingly, the conceptual comparison of the signs merely confirmed the average degree of similarity of the signs at issue.

32      In any event, the applicant did not raise any arguments that could call into question the Board of Appeal’s assessment of the conceptual similarity of the signs at issue.

33      First, according to the applicant, the consideration that the element ‘gc’ means ‘google car’ is a complete assumption, which has not been proved to the requisite legal standard by the opponent and for which no reasons were given in the contested decision. However, that argument is based on an incorrect reading of the contested decision. The Board of Appeal did not in any way assert that the element ‘gc’ means ‘google car’. Rather, it stated, in paragraphs 22 and 27 of the contested decision, that it will be perceived by the relevant public as an acronym of the two other word elements of the mark applied for, namely ‘google’ and ‘car’.

34      It should be noted, similarly to EUIPO, that the public is accustomed to perceiving and interpreting commercial signs combining an expression and an abbreviation of the initials of that expression. At the hearing, EUIPO’s representative gave the well-known acronyms in the automotive sector BMW (Bayerische Motoren Werke), VW (Volkswagen) and GMC (General Motors Company) as examples. Similarly, when seeing the element ‘gc’ in relation to vehicles and conveyances in respect of which the mark in question was applied for, consumers will perceive that sequence of letters corresponding to the initial letters of the two words ‘google’ and ‘car’, which follow that sequence, as an acronym of those words.

35      As for the word ‘car’, the Board of Appeal correctly noted in paragraphs 27 and 28 of the contested decision that, in English, it is descriptive of the goods covered by the mark applied for, which the applicant does not, moreover, dispute.

36      The addition of a descriptive element together with the acronym resulting from the combination of the two words does not weaken the influence of an independent element, which is particularly distinctive owing to its substantial reputation, on the overall impression of a sign.

37      On the contrary, the addition of an acronym representing the initials of the other word elements of the mark can even support the relevant public’s perception of the word combination of those elements, by simplifying its use and by making it easier to remember (see, to that effect, judgment of 15 March 2012, Strigl and Securvita, C‑90/11 and C‑91/11, EU:C:2012:147, paragraph 32). Accordingly, in the present case, the element ‘gc’ emphasises the reference to the earlier mark GOOGLE from the point of view of the relevant public.

38      Second, the applicant submits that the Board of Appeal’s assessment is inconsistent in so far as, in paragraph 28 of the contested decision, the Board of Appeal found that the degree of conceptual similarity between the signs at issue was high, having regard to the fact that they share the term ‘google’, even though it observed in paragraph 26 of the contested decision that the word ‘google’ did not have any specific meaning per se. The signs at issue cannot be conceptually similar if the elements in question have no meaning, or if such a word is allegedly a reputed mark in a specific commercial sector.

39      Although the Board of Appeal admittedly stated, in paragraph 26 of the contested decision, that the word ‘google’ has no specific meaning as such, it added in the same paragraph that the word is, however, generally associated with the intervener’s internet search engine or internet searches in general, as shown by its inclusion in the online English-language dictionary Collins. Accordingly, the Board of Appeal correctly found that there was a high degree of conceptual similarity owing to the fact that the signs at issue share the term ‘google’.

40      It follows from all the foregoing that the Board of Appeal did not make an error of assessment in finding that the signs at issue have an average degree of similarity.

 The second part of the single plea, alleging incorrect assessment of the existence of a link between the marks at issue

41      The applicant claims, in the first place, that the reputation of the earlier mark is based on search engine services. That circumstance, and the existence of a specific and separate mark registered and used by the intervener in respect of cars, precludes the mark applied for from evoking, on the part of consumers, the idea that the goods which it covers originate from the intervener. According to the applicant, consumers will therefore not establish a link between the marks at issue.

42      In the second place, the applicant maintains that the Board of Appeal’s finding in paragraph 36 of the contested decision that, owing to the presence of the element ‘google’ in the mark applied for, it is highly likely that the intervener’s mark will be brought to the minds of the consumers in view of its uniqueness, runs counter to the Board of Appeal’s finding in paragraph 35 of the contested decision that the level of attention of the relevant public is higher in relation to goods in Class 12.

43      In the third place, the applicant disputes the claim that consumers will understand the term ‘google’ as a reference to self-driving cars manufactured by the intervener.

44      First, he maintains that the existence of the mark WAYMO owned by the intervener covering, inter alia, ‘cars’ in Class 12 precludes the possibility of a link between the signs GC GOOGLE CAR and GOOGLE. According to the applicant, consumers will recognise the specific mark WAYMO, which the intervener uses to operate in the automotive sector, as the mark under which the intervener markets cars and car services. According to the applicant, the Board of Appeal made an error of law in paragraph 38 of the contested decision in finding that a link between the signs could be established owing to the fact that the intervener’s self-driving project is still commonly referred to in the press as ‘Google car’.

45      Second, the applicant argues that the application for registration of the mark applied for covers ‘cars’ in general, without specifying that they are ‘self-driving cars’.

46      Third, he submits that the parties’ business ‘focuses’ are far from each other, which strongly reduces the risk for consumers of making a link between the signs at issue.

47      EUIPO and the intervener dispute the applicant’s arguments.

48      The existence of a link between the marks at issue must be assessed globally, taking into account all factors relevant to the circumstances of the case (see judgment of 6 July 2012, Jackson International v OHIM – Royal Shakespeare (ROYAL SHAKESPEARE), T‑60/10, not published, EU:T:2012:348, paragraph 20 and the case-law cited). Those relevant factors include the degree of similarity between the marks at issue; the nature of the goods or services in respect of which the marks at issue are registered or applied for, including the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public; the strength of the earlier mark’s reputation; the degree of the earlier mark’s distinctive character, whether inherent or acquired through use; and the existence of a likelihood of confusion on the part of the public (see judgment of 6 July 2012, ROYAL SHAKESPEARE, T‑60/10, not published, EU:T:2012:348, paragraph 21 and the case-law cited).

49      In the first place, the applicant does not challenge the reputation of the earlier mark.

50      In the second place, the fact that the mark applied for covers ‘vehicles and conveyances’ in Class 12 while the earlier mark covers goods and services in Classes 9, 35, 38 and 42 is not, in itself, sufficient to preclude a certain proximity between the goods and services for the purposes of Article 8(5) of Regulation 2017/1001; a direct and immediate link between the goods and services is not necessary (see judgment of 9 September 2020, Kludi v EUIPO – Adlon Brand (ADLON), T‑144/19, not published, EU:T:2020:404, paragraph 159 and the case-law cited).

51      In that connection, the Board of Appeal observed, in paragraph 37 of the contested decision, that although the goods covered by the mark applied for are not similar to the goods in respect of which the earlier mark enjoys a reputation, the relevant public will be aware of Google’s reputation and will therefore associate the mark applied for with a car linked to Google, whose software is connected to the internet.

52      In the third place, regarding the applicant’s argument that the level of attention of the relevant public in respect of the goods covered by the mark applied for is high, it must be observed that the Board of Appeal took due account of that fact. It correctly found that, even with a high level of attention, consumers will think of the earlier mark owing to its uniqueness. The very famous earlier mark GOOGLE is an everyday tool for the general public and the specialised public in every sector, including the automotive sector, as explained by the Board of Appeal in paragraph 33 of the contested decision. As correctly noted by EUIPO, that public, when purchasing a vehicle or conveyance sold under the mark applied for, will clearly recognise the term ‘google’ and assume that the vehicles and conveyances incorporate Google technologies and tools, or that they have been developed by Google or in cooperation with Google. Accordingly, the intervener correctly observes that, when confronted with a mark which incorporates identically the mark GOOGLE, one of the most valuable technological brands in the world, the relevant public will naturally focus on that element and perceive it to be the main indication of origin of the composite mark.

53      In the fourth place, regarding the applicant’s assertion that the word element ‘google’ will not be understood by consumers as a reference to self-driving cars manufactured by the intervener, it must be stated that, first, as observed correctly by the Board of Appeal in paragraph 38 of the contested decision, the fact that the intervener has used a different name (WAYMO) for its own project in the automotive sector is irrelevant in respect of whether the relevant public will establish a link between the marks at issue. First, the mere existence of a separate mark used by the intervener in connection with its cars does not in any way affect the fact that consumers will establish a link between the signs GC GOOGLE CAR and GOOGLE. Moreover, the Board of Appeal correctly explained, relying on evidence produced by the intervener, that that project is commonly referred to in the press as ‘Google car’, ‘Google’s WAYMO’ or ‘Google’s self-driving car’, so that consumers will necessarily establish a link between the marks at issue.

54      Second, the applicant’s argument that the fact that the goods covered by his application are not self-driving cars, but vehicles in general, precludes a link between the marks at issue from being established must be rejected. Vehicles, as a broader category, include cars, including self-driving cars.

55      Third, the argument that the business ‘focuses’ of the parties to the present proceedings are far from each other – which, according to the applicant, reduces the risk of creating a link between the signs at issue on the part of consumers – must also be rejected. There is in actual fact an overlap between commercial activities owing to, inter alia, the intervener’s activity in the automotive sector which, moreover, regarding the self-driving car project, has been reported on in the press, as follows from paragraph 38 of the contested decision. Even though that new activity is not the intervener’s main activity and the earlier mark is not protected in respect of those goods, this does not preclude the consumer from having the impression that the goods marketed under the mark GC GOOGLE CAR originate from the intervener, involve elements originating from the intervener or are equipped with services rendered by the intervener.

56      As a result, the Board of Appeal did not commit an error of assessment in considering that the relevant public will establish a link between the marks at issue.

57      Having regard to the foregoing, the second part of the single plea must be rejected.

 The third part of the single plea, alleging incorrect assessment of the risk of unfair advantage

58      The applicant complains that the Board of Appeal incorrectly found that there was a risk of unfair advantage. In the present case, the intervener’s trade mark WAYMO, covering ‘cars’ in Class 12, prevents the applicant from taking unfair advantage of the trade mark GOOGLE or from diluting the GOOGLE brand.

59      EUIPO and the intervener dispute the applicant’s arguments.

60      In order to determine whether the use of a sign takes unfair advantage of the distinctive character or the repute of the mark, it is necessary to undertake a global assessment, taking into account all factors relevant to the circumstances of the case, which include the strength of the mark’s reputation and the degree of distinctive character of the mark, the degree of similarity between the marks at issue and the nature and degree of proximity of the goods or services concerned. Regarding the strength of the reputation and the degree of distinctive character of the earlier mark, it follows from the case-law that the stronger that mark’s distinctive character and reputation are, the easier it will be to accept that detriment has been caused to it (judgments of 18 June 2009, L’Oréal and Others, C‑487/07, EU:C:2009:378, paragraph 44, and of 28 May 2020, Galletas Gullón v EUIPO – Intercontinental Great Brands (gullón TWINS COOKIE SANDWICH), T‑677/18, not published, EU:T:2020:229, paragraph 121). The more immediately and strongly the earlier mark is brought to mind by the later mark, the greater the likelihood that the current or future use of the later mark is taking unfair advantage of, or is detrimental to, the distinctive character or the repute of the earlier mark (see judgment of 7 December 2010, Nute Partecipazioni and La Perla v OHIM – Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC), T‑59/08, EU:T:2010:500, paragraph 53 and the case-law cited).

61      In the present case, in paragraphs 44 to 46 of the contested decision, the Board of Appeal considered that, given the more than obvious reference to the earlier mark and its extremely strong reputation, the applicant would take unfair advantage of the attractiveness of that mark.

62      The applicant submits in that regard that the possibility that a trade mark might be brought to the minds of consumers does not necessarily imply that such a link adversely affects the proprietor’s trade mark rights under Article 8(5) of Regulation 2017/1001. Nevertheless, he does not raise any specific argument to call into question the Board of Appeal’s analysis.

63      In the present case, the risk of free-riding is obvious, given that one of the three elements making up the sign of the mark applied for is identical to the earlier mark, the reputation of which is extremely strong.

64      Regarding the applicant’s argument that the mark WAYMO owned by the intervener and covering ‘cars’ in Class 12 would prevent him from taking unfair advantage of the earlier mark, it must be stated that that assertion is in no way supported. Moreover, the mere existence of an additional mark owned by the proprietor of the earlier mark cannot have the effect of reducing or even eliminating the risk of free-riding to the detriment of the earlier mark, as the relevant public will establish a link between the marks at issue.

65      Given the similarities between the marks at issue and the link which the relevant public will establish between those marks, the Board of Appeal did not err in finding, in paragraph 47 of the contested decision, that the use of the mark applied for carries a risk of taking unfair advantage of the reputation of the earlier mark, which is part of many aspects of the daily life of consumers, and of riding on the coat-tails of the earlier mark, thereby taking unfair advantage of that mark’s attractiveness.

66      Having regard to all the foregoing considerations and given that none of the three parts of the single plea raised by the applicant in support of the form of order sought is to be upheld, the action must be dismissed.

 Costs

67      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.

68      Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Single Judge)

hereby:

1.      Dismisses the action;

2.      Orders Mr Zoubier Harbaoui to pay the costs.

Delivered in open court in Luxembourg on 1 February 2023.

*      Language of the case: English.

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