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

JUDGMENT OF THE GENERAL COURT (Single Judge)

15 February 2023 (*)

(EU trade mark – Invalidity proceedings – EU word mark V10 – Absolute ground for refusal – Alphanumeric sign – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

In Case T‑741/21,

LG Electronics, Inc., established in Seoul (South Korea), represented by M. Bölling, lawyer,

applicant,

v

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

defendant,

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

ZTE Deutschland GmbH, established in Düsseldorf (Germany), represented by T.M. Müller and C. Sauerborn, lawyers,

THE GENERAL COURT (Single Judge),

Judge: U. Öberg,

Registrar: R. Ūkelytė, Administrator,

having regard to the written part of the procedure,

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

further to the hearing on 23 November 2022,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, LG Electronics, Inc., seeks annulment of the Decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 September 2021 (Case R 2101/2020‑5) (‘the contested decision’).

 Background to the dispute

2        On 14 June 2019, the intervener, ZTE Deutschland GmbH, filed with EUIPO an application for a declaration of invalidity of the EU word mark V10, which had been registered following an application filed on 2 July 2015, with a priority date of 17 June 2015, for goods in Classes 9 and 14 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 corresponding, for each of those classes, to the following description:

–        Class 9: ‘3D spectacles; Digital cameras; Network monitoring cameras namely for surveillance; Television receivers; Audio component system composed of surround sound speakers, loudspeakers, tuners, sound mixers, equaliser, audio recorders, radio receivers; Apparatus for recording, transmission or reproduction of sound or images; Earphones; Digital Versatile Disc [DVD] players; Portable media players; Smart phones; Mobile phones; Wearable smart phones; Wireless headsets; Headsets; Wireless headsets for mobile phones; Wireless headsets for smart phones; Digital settop boxes; Leather cases for mobile phones; Leather cases for smart phones; Flip covers for mobile phones; Flip covers for smart phones; Application software; Tablet computers; Monitors for computers; Monitors for commercial use; Wearable computers; Computers; Printers for computers; LED Displays; Leather cases for tablet computers; Flip covers for tablet computers; Portable computers; Wireless headsets for tablet computers.’

–        Class 14: ‘Watches; Parts and fittings for watches; Wrist watches; Electronic clocks and watches; Bracelets (jewellery); Watchbands; Control clocks; Watches with the function of wireless communication; Watches that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Watchbands that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Bracelets that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Watches incorporating cameras and MP3 players, and that communicate data to smart phones and PDAs.’

3        The application for a declaration of invalidity was based on the grounds set out in Article 59(1)(a) 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), read in conjunction with Article 7(1)(b) and (c) of that regulation, on the basis that the contested mark was registered although it was devoid of any distinctive character or was descriptive of all of the goods referred to in paragraph 2 above.

4        By decision of 21 October 2020, the Cancellation Division upheld the application for a declaration of invalidity in its entirety. It found, in essence, that the goods concerned consisted of various technological and auxiliary goods in respect of which the intervener had established that it was extremely common to use alphanumeric codes to indicate the model number, with the result that the contested mark could not function as an indication of the commercial origin of those goods. It concluded from the above that that mark was devoid of any distinctive character, within the meaning of Article 7(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (replaced by Regulation 2017/1001) and declared it invalid for all of the goods concerned, without examining whether the contested mark had also been registered in breach of Article 7(1)(c) of that regulation.

5        On 5 November 2020, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division.

6        By the contested decision, the Board of Appeal annulled in part the decision of the Cancellation Division and upheld the appeal in respect of all the goods concerned, with the exception of ‘Smart phones; Mobile phones; Wearable smart phones’ and ‘Application software’ in Class 9, in respect of which it found that the contested mark should be declared invalid.

7        In the first place, having started its analysis with the examination of the potential descriptiveness of the contested mark, for the purpose of Article 7(1)(c) of Regulation No 207/2009, the Board of Appeal, first of all, stated that the relevant public consisted of the public in the European Union with a degree of attention varying from average to higher than average, which was not, however, particularly high.

8        Next, the Board of Appeal grouped the goods concerned that fell in Class 9 into three categories; the first category covered smartphones and software, and was comprised of ‘Smart phones; Mobile phones; Wearable smart phones’ and ‘Application software’, the second category covered other electronic devices, and the third category grouped together non-electronic accessories for the devices in the first two categories. It also grouped all the goods concerned in Class 14 into a single homogenous category.

9        As regards the meaning of the contested mark, which consists of the letter ‘v’, followed by the number 10, the Board of Appeal found that most of the evidence submitted by the intervener did not provide reliable information for the purposes of assessing the relevant public’s perception of the meaning of that mark on the priority date of 17 June 2015 (‘the relevant date’) in respect of the goods concerned. The position was different only with regard to goods in Class 9 that fell in the category of smartphones and software, namely ‘Smart phones; Mobile phones; Wearable smart phones’ and ‘Application software’, in respect of which the Board of Appeal found that it had been established that, on the relevant date, at least part of the relevant public could perceive the sign V10 of the contested mark as being the abbreviation of ‘version 10’ or ‘10th version’.

10      Lastly, the Board of Appeal found that the intervener had not established that, on the relevant date, the link between the sign V10 and the goods concerned, other than the goods in the category of smartphones and software, was sufficiently direct, such that it was used or perceived by the relevant public in a descriptive way, for the purposes of Article 7(1)(c) of Regulation No 207/2009. It concluded from the above that, on the date of the application for registration, the contested mark was precluded by the ground for refusal under Article 7(1)(c) of that regulation only in respect of ‘Smart phones; Mobile phones; Wearable smart phones’ and ‘Application software’ in Class 9.

11      In the second place, the Board of Appeal stated that, as regards the goods for which the sign V10 had been regarded as merely descriptive, that sign was also devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009. It added, however, that the intervener had not established convincingly that, on the relevant date, the contested mark could not be perceived as an indication of origin for the other goods concerned.

12      The Board of Appeal concluded that the Cancellation Division had erred in finding that the contested mark had been registered in breach of Article 7(1)(b) and (c) of Regulation No 207/2009 in respect of the goods concerned other than ‘Smart phones; Mobile phones; Wearable smart phones’ and ‘Application software’ in Class 9.

 Forms of order sought

13      The applicant claims that the Court should:

–        annul the contested decision in so far as it dismissed the appeal as regards ‘Smart phones; Mobile phones; [and] Wearable smart phones’;

–        order EUIPO to pay the costs.

14      EUIPO and the intervener contend that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

 Subject matter of the dispute

15      As a preliminary point, the Court notes that the action must be regarded as being directed solely against the contested decision in so far as it concluded that the contested mark had been registered in breach of Article 7(1)(b) and (c) of Regulation No 207/2009 for ‘Smart phones; Mobile phones; [and] Wearable smart phones’ in Class 9, since the applicant does not dispute that the contested mark must be declared invalid in respect of ‘Application software’ in Class 9.

 Determination of the applicable rules ratione temporis

16      Given the date on which the application for registration at issue was filed, namely 2 July 2015, which is decisive for the purpose of identifying the applicable substantive law, the present dispute is governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40).

17      Consequently, in the present case, as regards the substantive rules, it is appropriate to understand the references to Article 7(1)(b) and (c) and Article 59(1)(a) of Regulation 2017/1001 made by the Board of Appeal in the contested decision and by the applicant in its arguments concerning the registration of the contested mark in breach of the absolute grounds for refusal on the basis that that mark lacks distinctiveness or descriptiveness vis-à-vis the goods concerned, as referring, respectively, to Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation No 207/2009, which are identical in terms of their wording.

18      Furthermore, since procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001.

 Substance

19      In support of its action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 7(1)(b) and (c) of Regulation No 207/2009, in that the Board of Appeal erred in finding that the contested mark was descriptive of and devoid of distinctive character vis-à-vis the goods ‘Smart phones; Mobile phones; [and] Wearable smart phones’ in Class 9 (‘the goods at issue’). It divides that plea into five parts, alleging, in essence, first, that the Board of Appeal failed to carry out a separate assessment of the descriptiveness of the contested mark vis-à-vis the goods at issue and ‘Application software’ in Class 9, second, a contradiction in the reasoning relating to the distinctiveness and descriptiveness of that mark and, third, fourth and fifth, that the conditions for finding that that mark is descriptive of or devoid of distinctive character vis-à-vis the goods at issue are not met.

20      For the purposes of the present case, the Court will examine, in the first place, the applicant’s arguments in the third, fourth and fifth parts, in which it alleges that the contested mark is not descriptive of the goods at issue.

 The lack of descriptiveness of the contested mark vis-à-vis the goods at issue

21      The Board of Appeal found, in essence, that the intervener had provided reliable information for the purposes of assessing the relevant public’s perception of the meaning of the contested mark, on the relevant date, vis-à-vis the goods at issue. Thus, the combination of the letter ‘v’ and the number 10 would be used or understood in a descriptive sense by part of that public as a specific and direct reference to the characteristics of those goods.

22      The applicant submits that, even if part of the relevant public might perceive the element ‘v10’ of the contested mark as an abbreviation of ‘version 10’ of the goods at issue, that mark would nevertheless not be purely descriptive. The conditions laid down in Article 7(1)(c) of Regulation No 207/2009, according to which that meaning must describe the intrinsic, inherent, easily recognisable, specific, precise and objective characteristics of those goods in order to be descriptive, are not met.

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

24      Under Article 52(1)(a) of Regulation No 207/2009, an EU trade mark is to be declared invalid, inter alia on application to EUIPO, where it has been registered contrary to the provisions of Article 7 of that regulation.

25      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 are not to be registered.

26      In order for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation No 207/2009, there must be a sufficiently direct and specific relationship between the sign and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question and 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 16 October 2014, Larrañaga Otaño v OHIM (GRAPHENE), T‑458/13, EU:T:2014:891, paragraph 16).

27      A sign’s descriptiveness cannot be assessed other than by reference to the perception that the relevant public has of it, on the one hand, and by reference to the goods or services concerned, on the other (judgments of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL), T‑34/00, EU:T:2002:41, paragraph 38, and of 25 October 2005, Peek & Cloppenburg v OHIM (Cloppenburg), T‑379/03, EU:T:2005:373, paragraph 37).

28      Moreover, it is not necessary that the signs or indications comprising the mark and referred to in Article 7(1)(c) of Regulation No 207/2009 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 covered by the mark, 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 (see, judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 32).

29      By using, in Article 7(1)(c) of Regulation No 207/2009, the terms ‘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’, the EU legislature made it clear, first, that those terms all had to be regarded as corresponding to characteristics of goods or services and, second, that that list was not exhaustive, since any other characteristics of goods or services may also be taken into account (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 49).

30      The choice of the word ‘characteristic’ by the legislature also highlights the fact that the signs referred to in Article 7(1)(c) of Regulation No 207/2009 are merely those which serve to designate a property, easily recognisable by the relevant class of persons, of the goods or the services in respect of which registration is sought. Accordingly, a sign can be refused registration on the basis of that provision only if it is reasonable to believe that it will actually be recognised by the relevant class of persons as a description of one of those characteristics (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 50 and the case-law cited).

31      While it is irrelevant whether such a characteristic is commercially essential or ancillary (judgment of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraph 102), a characteristic, within the meaning of Article 7(1)(c) of Regulation No 207/2009, must nevertheless be objective and inherent to the nature of the goods or services in question (see, to that effect, judgment of 6 September 2018, Bundesverband Souvenir – Geschenke – Ehrenpreise v EUIPO, C‑488/16 P, EU:C:2018:673, paragraph 44).

32      It is in the light of those considerations that it is appropriate to examine whether, as the applicant submits, the Board of Appeal infringed Article 7(1)(c) of Regulation No 207/2009 in finding that the mark applied for was descriptive of the goods at issue.

33      In the present case, as a preliminary point, the Court notes that the parties do not dispute the Board of Appeal’s finding that the goods concerned in Class 9 are aimed at the general public in the European Union, which will have an average to higher than average level of attention.

34      The contested mark consists exclusively of the letter ‘v’ followed by the number 10 and the goods at issue are ‘Smart phones; Mobile phones; [and] Wearable smart phones’ in Class 9.

35      In order to establish that the element ‘v10’ of the contested mark is a term which will be understood by the relevant public as being descriptive of the goods at issue, the Board of Appeal relied on printouts from various pages from websites submitted by the intervener, prior to the relevant date, which gave examples of smart phones or mobile phones whose name consisted of a word element and an alphanumeric combination consisting of the letter ‘v’ followed by a number.

36      In that regard, the Court has previously held that the use of an abbreviation by several operators in a field concerned on the internet can confirm the actual use of the abbreviation in practice. In addition, the Court has found in the past that evidence of the actual use of initials as an abbreviation of the words it relates to is sufficient as long as that evidence lies in documents of, inter alia, a commercial nature (see, to that effect, judgment of 13 July 2017, LG Electronics v EUIPO (QD), T‑650/16, not published, EU:T:2017:489, paragraph 23 and the case-law cited). Several sources cited by the intervener and referred to by the Board of Appeal in the contested decision specifically confirm such a use.

37      It is apparent from the documents submitted by the intervener and on which the Board of Appeal relied that alphanumeric combinations are frequently used in the field of mobile phones and smart phones. The Court also notes that those combinations are generally in the form of the letter ‘v’ followed by a number in ascending order, according to the year or month in which the mobile telephone or smart phone is launched on the market.

38      Since the goods covered by the contested mark are ‘Smart phones; Mobile phones; [and] Wearable smart phones’, it is clear that, when faced with those devices identified by the sign V10, the relevant public will give it the meaning which it has in a technological context. That public will understand that it refers to the abbreviation of the word ‘version’, followed by the version number of the goods in question. The alphanumeric combination ‘v10’ of the contested mark will therefore easily be understood by the relevant public as being intended to identify the tenth version of those goods.

39      Thus, the alphanumeric combination composed of the letter ‘v’ followed by a number indicates to the relevant public a characteristic of the goods at issue relating to their technological evolution and seeks to identify the different versions of those goods, as a variant of the earlier or later forms, which most likely incorporates certain modifications.

40      That conclusion is, moreover, supported by the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf Germany), which, in a decision of 6 August 2020 relating to a case between the applicant and the intervener which is connected with the alleged infringement of the contested mark, confirmed that the relevant German public understood the alphanumeric code ‘v10’ of that mark as a mere model designation or as designation of the version.

41      Furthermore, the Court has held previously that when a sign has several meanings, it must be refused registration if at least one of its possible meanings designates a characteristic of the goods, a principle which applies in the same way to word signs and figurative signs (judgment of 17 December 2015, Olympus Medical Systems v OHIM (3D), T‑79/15, not published, EU:T:2015:999, paragraph 26 and the case-law cited).

42      Furthermore, as is apparent from the case-law cited in paragraph 28 above, it is not necessary that the element ‘v10’ actually be in use at the time of the application for registration in a way that is descriptive of the goods at issue or of the characteristics of those goods. It is sufficient, as the wording of Article 7(1)(c) of Regulation No 207/2009 itself makes clear, that that element could be used for such purposes.

43      It follows from the foregoing that the intervener put forward compelling evidence that the contested mark V10 had, for the relevant public, a sufficiently direct and specific relationship with the goods at issue by referring, inter alia, to several printouts from websites, from which it is apparent that the letter ‘v’ is clearly an abbreviation of the word ‘version’ and that the number which follows it refers to the number of the version in question.

44      As the Board of Appeal observed, it must therefore be concluded that the intervener has established to the requisite legal standard that the alphanumeric combination ‘v10’ of the contested mark had a connotation that is descriptive of the goods at issue, since the letter ‘v’ combined with the number 10 could immediately be perceived, without further thought, by the relevant public as a reference to one of the intrinsic, inherent and objective characteristics of those goods, namely a tenth version, which is likely to incorporate new updates or new functionality as compared with the earlier versions.

45      Consequently, the Board of Appeal did not err in law in finding that that mark was descriptive of the goods at issue for the purposes of Article 7(1)(c) of Regulation No 207/2009.

46      It follows that the third, fourth and fifth parts must be rejected, without there being any need for the Court to rule on the inherent distinctiveness of that mark vis-à-vis those goods.

 Failure to carry out a separate assessment of the descriptiveness of the contested mark vis-à-vis the goods at issue and ‘Application software’ in Class 9

47      The applicant submits that the Board of Appeal did not set out the reasons why the goods at issue, namely ‘Smart phones; Mobile phones; [and] Wearable smart phones’, and ‘Application software’ in Class 9 had a sufficiently direct and specific link to each other to the extent that they form a sufficiently homogeneous category, since there are obvious differences between those goods. Accordingly, it submits, in essence, that the contested decision was not specifically reasoned with regard to each of those goods and that the Board of Appeal confined itself to general reasoning applied without distinction to each of them. It claims that the only evidence available to the Board of Appeal attesting to the use of an alphanumeric sign composed of the letter ‘v’ followed by a number as an abbreviation of the word ‘version’ relates exclusively to ‘Application software’.

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

49      According to the Court of Justice’s case-law, the examination of the absolute grounds for refusal must be carried out in relation to each of the goods or services for which trade mark registration is sought, and the decision by which the competent authority refuses registration of a mark must, in principle, state reasons in respect of each of those goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraph 29 and the case-law cited).

50      However, as regards that last requirement, the competent authority may use only general reasoning for all of the goods and services concerned where the same ground for refusal is given for a category or group of goods or services. Nevertheless, such a power extends only to goods and services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group, C‑437/15 P, EU:C:2017:380, paragraphs 30 and 31 and the case-law cited).

51      In the present case, the contested decision states that the Board of Appeal took account of the different categories of goods concerned and found that the homogeneity of those goods in Class 9 resulted from the fact that they could be regarded as grouping together, on the basis of characteristics that are common to all of them, first, smart phones and software, second, other electronic devices and, third, non-electronic accessories for devices in the first two categories.

52      In that regard, it cannot be inferred from the classification into the categories ‘smart phones and software’, ‘other electronic devices’ and ‘non-electronic accessories for devices in the first two categories’, made by the Board of Appeal, that it did not assess the specific goods covered by the contested mark.

53      Although, in the Board of Appeal’s analysis of the descriptiveness of the contested mark, it referred generally to the evidence relating to the categories of goods concerned in order to find that the relevant public tended to read that mark as an abbreviation of the terms ‘version 10’ or ‘10th version’ solely in the context of goods in the category ‘smart phones and software’, it relied, in the contested decision, on different evidence for the products in that category it considered to be ‘smart phones’ or ‘software’.

54      As regards ‘software’, the Board of Appeal relied on an article from Wikipedia relating to an operating system. By contrast, it took into account other documents with regard to ‘Smart phones; Mobile phones; [and] Wearable smart phones’, namely various pages on websites showing examples of smart phones or mobile phones whose name consists of a word element and an alphanumeric combination of the letter ‘v’ followed by a number in ascending order, depending on the year or month in which the mobile telephone or smart phone was launched on the market.

55      It must also be pointed out that, by its line of argument, the applicant is in fact seeking to challenge the Board of Appeal’s finding relating to whether the contested mark is descriptive of the goods at issue. Such an argument relates to the alleged inaccuracy of the grounds of the contested decision, the review of which falls within the scope of the examination of the merits of that decision, which was carried out by the Court in its examination of the third, fourth and fifth parts above.

56      The Court found that the Board of Appeal did not err in finding that the contested mark was descriptive of the goods at issue, after concluding that the element ‘v10’ of that mark could immediately be perceived by the relevant public as an abbreviation of the word ‘version’ followed by the number 10, referring to one of the intrinsic, inherent and objective characteristics of those goods, namely a tenth version, incorporating new updates or new functionalities as compared with the previous versions.

57      It follows that the same ground for refusal, namely the descriptiveness of the contested mark vis-à-vis the goods at issue and ‘Application software’, is applicable to all of those goods. The Board of Appeal did not therefore err in extending its reasoning relating to the descriptiveness of the alphanumeric combination of the letter ‘v’ followed by the number 10 to all of them.

58      It follows that the first part of the plea must be rejected, as must the action in its entirety, without it being necessary for the Court to rule on the intrinsic distinctive character of the contested mark, as suggested by the intervener, or on a contradiction in the analysis of the distinctive and descriptive character of the contested mark, as is alleged by the applicant.

59      Under Article 7(1) of Regulation No 207/2009, it is sufficient that one of the absolute grounds for refusal listed in that provision obtains in order for the sign not to be registrable as an EU trade mark (see, to that effect, judgments of 14 September 2004, Applied Molecular Evolution v OHIM (APPLIED MOLECULAR EVOLUTION), T‑183/03, EU:T:2004:263, paragraph 29, and of 15 January 2013, BSH v OHIM (ecoDoor), T‑625/11, EU:T:2013:14, paragraph 36 and the case-law cited).

 Costs

60      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.

61      Since the applicant has been unsuccessful, it 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 LG Electronics, Inc. to pay the costs.

Delivered in open court in Luxembourg on 15 February 2023.

*      Language of the case: English.

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