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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> eBilet Polska v EUIPO (eBilet) (EU trade mark - Judgment) [2025] EUECJ T-197/24 (26 February 2025) URL: http://www.bailii.org/eu/cases/EUECJ/2025/T19724.html Cite as: EU:T:2025:184, ECLI:EU:T:2025:184, [2025] EUECJ T-197/24 |
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JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
26 February 2025 (*)
( EU trade mark – Application for EU figurative mark eBilet – Absolute ground for refusal – Descriptive nature – Article 7(1)(c) of Regulation (EU) 2017/1001 )
In Case T‑197/24,
eBilet Polska sp. z o.o., established in Warsaw (Poland), represented by P. Kurcman, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Walicka, acting as Agent,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg and I. Dimitrakopoulos (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
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
1 By its action under Article 263 TFEU, the applicant, eBilet Polska sp. z o.o., seeks the annulment and alteration of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 February 2024 (Case R 695/2023-2) (‘the contested decision’).
Background to the dispute
2 On 27 March 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3 The mark applied for covered, inter alia, goods and services in Classes 9, 16, 35, 39 and 41 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: ‘Programs for computers; Computer programs, downloadable’;
– Class 16: ‘Tickets; Entry tickets; Printed tickets; Printed event admission tickets’;
– Class 35: ‘Retail services in relation to tickets; Retail services in relation to entry tickets; Retail services in relation to printed tickets; Retail services in relation to printed event admission tickets; Online retail services in relation to tickets; Online retail services in relation to entry tickets; Online retail services in relation to printed tickets; Online retail services in relation to printed event admission tickets’;
– Class 39: ‘Ticketing services for travel’;
– Class 41: ‘Box office services; Booking agencies for concert tickets; Booking of seats for concerts; Booking agency services for cinema tickets; Reservation services for show tickets; Reservation services for concert tickets; Entertainment booking services; Ticket agency services [entertainment]; Reservation services for theater tickets; Ticket reservation for cultural events; Ticket information services for entertainment events; Ticket information services for shows; Ticket procurement services for entertainment events; Ticket information services for sporting events; On-line ticket agency services for entertainment purposes; Ticketing and event booking services; Ticket reservation and booking services for entertainment events; Ticket reservation and booking services for sporting events; Ticket reservation and booking services for cultural events; Ticket reservation and booking services for music concerts; Ticket reservation and booking services for theater shows; Arranging for ticket reservations for shows and other entertainment events; Ticket information services for esports events; Ticket reservation and booking services for recreational and leisure events; Ticket reservation and booking services for esports events; Ticket reservation and booking services for education, entertainment and sports activities and events; Providing will-call ticket services for entertainment, sporting and cultural events.’
4 By decision of 3 February 2023, the examiner partially granted the application for registration of the mark applied for but rejected it as regards the goods and services referred to in paragraph 3 above, on the basis of Article 7(1)(b) and (c) 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).
5 On 31 March 2023, the applicant filed a notice of appeal with EUIPO against the examiner’s decision.
6 By the contested decision, the Board of Appeal dismissed the appeal on the ground that, first, the mark applied for is descriptive under Article 7(1)(c) of Regulation 2017/1001, in that it directly describes the kind and intended purpose of the goods at issue as well as the subject matter and way in which the services at issue are provided. Second, it found that the mark applied for is not distinctive under Article 7(1)(b) of Regulation 2017/1001, in that the relevant public would not perceive it as an indication of the commercial origin of the goods and services at issue. Lastly, it considered that its findings are not called into question by the earlier registrations of marks containing the word ‘eBilet’.
Forms of order sought
7 The applicant claims, in essence, that the Court should:
– annul the contested decision;
– annul the examiner’s decision of 3 February 2023;
– register the mark applied for in respect of all the goods and services at issue;
– order EUIPO to pay the costs, including those incurred in the proceedings before the Operations Department and the Board of Appeal.
8 EUIPO contends that the Court should:
– refuse the application in its entirety;
– order the applicant to pay the costs in the event that a hearing is convened.
Law
9 As regards the third head of claim, it must be pointed out that that head of claim requests that the Court register the mark applied for and may be understood as asking the Court to alter the contested decision within the meaning of Article 72(3) of Regulation 2017/1001, by adopting the decision which the Board of Appeal ought to have taken, in accordance with the provisions of that regulation. The competent bodies of EUIPO do not adopt formal decisions recording the registration of an EU trade mark which could be the subject of an appeal. Consequently, the Board of Appeal does not have power to take cognisance of an application that it should register an EU trade mark. Nor, in those circumstances, is it for the Court to take cognisance of an application for alteration requesting it to amend the decision of a Board of Appeal to that effect (see, to that effect, judgment of 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, EU:T:2011:158, paragraph 13 and the case-law cited). It follows that the third head of claim must be rejected on the ground of lack of jurisdiction.
10 In support of the first two heads of claim, the applicant relies, in essence, on three pleas in law, the first alleging infringement of Article 7(1)(c) of Regulation 2017/1001, the second alleging infringement of Article 7(1)(b) of that regulation and the third alleging failure to observe the principles of legal certainty, sound administration and equal treatment.
11 EUIPO disputes the applicant’s arguments.
First plea in law, alleging infringement of Article 7(1)(c) of Regulation 2017/1001
12 The applicant submits that the mark applied for is not descriptive of the goods and services at issue. First, it maintains that the letter ‘e’ does not necessarily refer to the internet or electronics and that the word element ‘ebilet’, taken as a whole, is a fanciful word devoid of any unequivocal meaning. Second, it claims that that word element does not appear in the wording of the description of the goods and services at issue, with the result that that mark is, at most, only an indirect indication of the characteristics of those goods and services.
13 EUIPO disputes the applicant’s arguments.
14 Under Article 7(1)(c) of Regulation 2017/1001, 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. Under Article 7(2) of that regulation, Article 7(1) is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.
15 Those signs or indications are deemed 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).
16 In order 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 or services at issue to enable the relevant public immediately to perceive, without further thought, a description of the goods and services at issue or of 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).
17 A sign’s descriptiveness cannot be assessed other than by reference to the goods or services concerned, on the one hand, and by reference to the understanding which the relevant persons have of it, on the other (see judgment of 25 October 2005, Peek & Cloppenburg v OHIM (Cloppenburg), T‑379/03, EU:T:2005:373, paragraph 37 and the case-law cited).
18 By prohibiting the registration as trade marks of such signs and indications, Article 7(1)(c) of Regulation 2017/1001 pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks (see judgment of 23 October 2003, OHIM v Wrigley, C‑191/01 P, EU:C:2003:579, paragraph 31 and the case-law cited).
19 It is in the light of those considerations that it must be examined whether, as the applicant claims, the Board of Appeal infringed Article 7(1)(c) of Regulation 2017/1001.
20 In the present case, in the first place, it must be pointed out that the Board of Appeal took the view that the relevant public consists of both professionals and the general public and took into consideration the Polish-speaking part of that public in order to examine whether the mark applied for is descriptive under Article 7(1)(c) of Regulation 2017/1001.
21 In the second place, the Board of Appeal found, in paragraphs 14 to 22 of the contested decision, that the word ‘ebilet’, constituting the mark applied for, means, in Polish, ‘electronic ticket’. It pointed out that the Polish-speaking part of the relevant public would perceive, first, the letter ‘e’ as an indication of the fact that the goods and services at issue are in electronic form or are offered by electronic media and, second, the word ‘bilet’ as a Polish word meaning ‘ticket’.
22 In that regard, the applicant submits that the letter ‘e’ does not necessarily refer to the internet or to electronics and that the word element ‘ebilet’ of the mark applied for is a fanciful word devoid of any unequivocal meaning.
23 However, first, the applicant does not dispute that, in certain situations, the letter ‘e’ may refer to the internet or to electronics. Second, it does not dispute that the word ‘bilet’ is a Polish word meaning ‘ticket’. Third, it is apparent from the very wording of the description of the goods and services at issue that tickets may be marketed via the internet in electronic form.
24 In those circumstances, the Board of Appeal was right in finding that the mark applied for could mean, for the Polish-speaking part of the relevant public, ‘electronic ticket’. Consequently, contrary to what the applicant claims, that mark cannot be regarded as fanciful or devoid of any unequivocal meaning for that public.
25 In the third place, the Board of Appeal found that the mark applied for could designate, for the relevant public, the kind and intended purpose of the goods and services at issue and the way in which they are provided.
26 In that regard, the applicant claims that the word ‘ebilet’ does not appear in the wording of the description of the goods and services at issue.
27 However, it is sufficient to note that that circumstance is not such as to call into question the fact that the mark applied for could designate, for the Polish-speaking part of the relevant public, the kind and intended purpose of the goods and services at issue and the way in which they are provided.
28 Consequently, the Board of Appeal was right in finding that the mark applied for is descriptive, pursuant to Article 7(1)(c) of Regulation 2017/1001.
29 Therefore, the applicant’s first plea in law must be rejected as being unfounded.
The second plea in law, alleging infringement of Article 7(1)(b) of Regulation 2017/1001
30 The applicant submits that the mark eBilet is not devoid of any distinctive character.
31 EUIPO disputes the applicant’s arguments.
32 According to settled case-law, it is apparent from the wording of Article 7(1) of Regulation 2017/1001 that it is sufficient that one of the absolute grounds for refusal listed applies in order for the sign at issue not to be registrable as an EU trade mark (see judgment of 22 November 2017, Toontrack Music v EUIPO (EZMIX), T‑771/16, not published, EU:T:2017:826, paragraph 65 and the case-law cited).
33 In the present case, since it follows from the examination of the first plea in law that the Board of Appeal was right in finding that the mark applied for is descriptive of the goods and services at issue as provided for in Article 7(1)(c) of Regulation 2017/1001 (see, in particular, paragraph 28 above), and since that ground alone justifies the refusal of registration, it is not necessary to examine the merits of the second plea in law relating to the infringement of Article 7(1)(b) of that regulation.
The third plea, alleging failure to observe the principles of legal certainty, sound administration and equal treatment
34 The applicant criticises the Board of Appeal for having refused registration of the mark applied for, even though EUIPO had agreed to register other identical or similar marks, including two marks of which the applicant itself is the proprietor. The applicant deduces from that that the Board of Appeal failed to observe the principles of legal certainty, sound administration and equal treatment.
35 EUIPO disputes the applicant’s arguments.
36 It should be noted that, since EUIPO’s application of the principles of equal treatment and sound administration must be consistent with respect for the principle of legality, a person who files an application for registration of a sign as an EU trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act previously committed to the benefit of his- or herself or of someone else. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered (see, to that effect, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73, 75, 76 and 77).
37 In the present case, as is apparent from paragraph 28 above, the Board of Appeal was right in finding that the mark applied for is caught by the ground for refusal laid down in Article 7(1)(c) of Regulation 2017/1001 and therefore the applicant cannot usefully rely on previous EUIPO decisions in order to cast doubt on that conclusion.
38 In any event, it should be noted that, in paragraph 39 of the contested decision, the Board of Appeal took into consideration, inter alia, four of its previous relevant decisions. In that context, it pointed out that the contested decision is consistent with those previous decisions, which, moreover, is not disputed by the applicant.
39 The third plea in law must therefore be rejected and consequently, the action must be dismissed in its entirety.
Costs
40 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.
41 In the present case, although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders each party to bear its own costs.
Kowalik-Bańczyk | Buttigieg | Dimitrakopoulos |
Delivered in open court in Luxembourg on 26 February 2025.
V. Di Bucci | S. Papasavvas |
Registrar | President |
* Language of the case: English.
© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.
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URL: http://www.bailii.org/eu/cases/EUECJ/2025/T19724.html