1

By its action under Article 263 TFEU, the applicant, Lami Packaging (Kunshan) Co. Ltd, seeks the annulment and the alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 December 2024 (Case R 12/2024-4) (‘the contested decision’).

2

On 3 January 2022, the applicant filed with EUIPO an application for a declaration of invalidity in respect of the EU trade mark which had been registered following an application filed by the intervener, Tetra Laval Holdings & Finance SA, on 19 April 2000 in respect of the following three-dimensional sign:

3

The goods covered by the contested mark in respect of which a declaration of invalidity was sought are in Class 16 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 corresponded to the following description: ‘Packaging containers and packaging material made of paper or made of paper coated with plastic material’.

4

The grounds relied on in support of the application for a declaration of invalidity were those set out, first, in Article 51(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended, read in conjunction with Article 7(1)(e)(ii) of that regulation, and, second, Article 51(1)(b) of that regulation.

5

On 6 November 2023, the Cancellation Division upheld the application for a declaration of invalidity on the basis of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(e)(ii) thereof.

6

On 3 January 2024, the intervener filed a notice of appeal with EUIPO against the Cancellation Division’s decision.

7

By the contested decision, the Board of Appeal upheld the appeal and, consequently, rejected the applicant’s application for a declaration of invalidity on the ground that Article 7(1)(e)(ii) of Regulation No 40/94 did not apply to the contested mark. In essence, the Board of Appeal held that the function performed by the shape of the goods did not constitute a technical result within the meaning of that provision. In order to reach that conclusion, the Board of Appeal found, referring, in particular, to the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), that Article 7(1)(e)(ii) of Regulation No 40/94 applied where the shape enabled goods to obtain a desired technical result during its use. The Board of Appeal held that, in the present case, the essential characteristics linked to the shape of the product related to the manufacturing process, but did not influence the function performed by that product.

8

Furthermore, the Board of Appeal rejected the application for a declaration of invalidity submitted under Article 51(1)(b) of Regulation No 40/94, finding that the applicant had not shown that the intervener had misused the trade mark registration system with a view to artificially protecting a shape which could be protected only by a patent.

9

The applicant claims, in essence, that the Court should:

10

EUIPO contends that the Court should:

11

The intervener claims that the Court should:

12

As a preliminary point, it should be noted that, given the date on which the application for registration at issue was filed, namely 19 April 2000, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 40/94 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

13

Consequently, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decision, and by the parties in their written pleadings, to Article 7(1)(e)(i) and (ii) and 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) must be understood as referring to Article 7(1)(e)(i) and (ii), and Article 51(1)(a) of Regulation No 40/94, respectively, the content of which is essentially identical so far as the present dispute is concerned.

14

Furthermore, since, according to the settled case-law of the Court, 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 present dispute is governed by the procedural provisions of Regulation 2017/1001.

15

In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 7(1)(e)(ii) of Regulation No 40/94, in conjunction with Article 51(1)(a) of that regulation.

16

It is apparent from Article 51(1)(a) of Regulation No 40/94 that a trade mark is to be declared invalid on application to EUIPO where that mark has been registered in breach, in particular, of the provisions of Article 7 of that regulation.

17

In that regard, it should be recalled that, in accordance with Articles 51 and 54 of Regulation No 40/94, an EU trade mark is regarded as valid until it has been declared invalid by EUIPO following invalidity proceedings. It therefore enjoys a presumption of validity, which is the logical consequence of the check carried out by EUIPO in the examination of an application for registration (see judgment of 19 October 2022, H&H v EUIPO – Giuliani (Swisse), T‑486/20, not published, EU:T:2022:642, paragraph 75 and the case-law cited). It follows that, in invalidity proceedings, it is for the person who has filed the application for a declaration of invalidity to invoke before EUIPO the specific facts which call the validity of that mark into question.

18

Under Article 7(1)(e)(ii) of Regulation No 40/94, signs which consist exclusively of the shape of goods which is necessary to obtain a technical result are not to be registered.

19

Each of the various grounds for refusal of registration listed in Article 7 of Regulation No 40/94 must be interpreted in the light of the public interest underlying each of them (see, by analogy, judgment of 18 June 2002, Philips, C‑299/99, EU:C:2002:377, paragraph 77). The interest underlying Article 7(1)(e)(ii) of Regulation No 40/94 is to prevent trade mark law granting an undertaking a monopoly on technical solutions or functional characteristics of a product (judgments of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 43, and of 19 June 2025, CeramTec, C‑17/24, EU:C:2025:455, paragraph 43).

20

That provision is thus intended to prevent the protection afforded by trade mark law from being extended, beyond signs which serve to distinguish a product or service from those offered by competitors, so as to form an obstacle preventing competitors from freely offering for sale products incorporating such technical solutions in competition with the proprietor of the trade mark (judgment of 19 June 2025, CeramTec, C‑17/24, EU:C:2025:455, paragraph 43; see also, by analogy, judgment of 18 June 2002, Philips, C‑299/99, EU:C:2002:377, paragraph 78). It is necessary, in particular, to prevent other exclusive protection rights subject to limited periods (patents, designs) from obtaining protection without limitation in time by relying on trade mark law (see, to that effect and by analogy, judgment of 18 September 2014, Hauck, C‑205/13, EU:C:2014:2233, paragraph 19 and the case-law cited).

21

The correct application of Article 7(1)(e)(ii) of Regulation No 40/94 requires that the competent authority identifies, first of all, the essential characteristics of the three-dimensional sign at issue and then ascertains whether those characteristics all perform a technical function of the goods (see, to that effect, judgments of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraphs 68, 72 and 84, and of 10 November 2016, Simba Toys v EUIPO, C‑30/15 P, EU:C:2016:849, paragraphs 40 and 42).

22

It is in the light of those considerations that the merits of the single plea in law raised by the applicant must be examined.

23

As regards the first step, the identification of the essential characteristics of a sign must be carried out on a case-by-case basis, without any hierarchy that applies systematically between the various types of elements of which a sign may consist. It may be carried out either directly on the basis of the overall impression produced by the sign, or by first examining in turn each of the components of the sign concerned (judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 70). As is apparent from the judgment of 14 September 2010, Lego Juris v OHIM (C‑48/09 P, EU:C:2010:516, paragraph 69), the expression ‘essential characteristics’ must be understood as referring to the most important elements of the sign. Consequently, the identification of the essential characteristics of a sign may, depending on the case, and in particular in view of its degree of complexity, be carried out by means of a simple visual analysis of the sign or, on the other hand, be based on a detailed examination in which relevant criteria of assessment are taken into account, such as surveys or expert opinions, or data relating to intellectual property rights conferred previously in respect of the goods concerned (see, to that effect and by analogy, judgment of 23 April 2020, Gömböc, C‑237/19, EU:C:2020:296, paragraph 29 and the case-law cited).

24

In the present case, the Board of Appeal identified, in paragraph 32 of the contested decision, the essential characteristics of the contested mark as follows:

25

The Board of Appeal found that the first three essential characteristics defined the structure and the contours of the shape, while the fourth essential characteristic ensured that the packaging was hermetically closed.

26

The identification of those four essential characteristics is not disputed by the parties, and in particular by the applicant, which states that it does not oppose the outcome reached by the Board of Appeal on that point. Similarly, the intervener stated that it agreed with the Board of Appeal’s identification of the essential characteristics and that it did not intend, in the present proceedings, to dispute the Board of Appeal’s rejection of the argument that it had put forward before it, that there was a fifth essential characteristic corresponding to the overall appearance of the contested mark.

27

Once the essential characteristics have been identified, the competent authority has to ascertain, as a second step, whether those characteristics all perform the technical function or one of the technical functions of the goods at issue (see, to that effect, judgments of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 72; of 23 April 2020, Gömböc, C‑237/19, EU:C:2020:296, paragraph 28 and the case-law cited; and of 9 July 2025, Spin Master Toys UK v EUIPO – Verdes Innovations (Shape of a cube with faces having a grid structure and differentiated by their colours), T‑1171/23, EU:T:2025:691, paragraph 31).

28

In that regard, it is important to point out that the determination by the competent authority of the technical functions of the product concerned must be based on objective and reliable information. That authority may look for such features, inter alia, in any description of that product submitted at the time of filing of the application for registration of the mark, in data relating to intellectual property rights conferred previously in respect of that product, such as previous patents describing the functional elements of the shape concerned, by looking at surveys or expert opinions on the functions of the product, or in any relevant documentation, such as scientific publications, catalogues and websites, which describes the technical features of the product (judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 85; see also, by analogy, judgment of 23 April 2020, Gömböc, C‑237/19, EU:C:2020:296, paragraph 34). It was also held that the existence of a patent could constitute irrefutable evidence that the characteristics claimed by that patent were functional (see, to that effect, judgment of 28 June 2016, Peri v EUIPO (Shape of a formwork coupler), T‑656/14, not published, EU:T:2016:367, paragraph 23).

29

By contrast, information concerning any knowledge the relevant public may have of the technical functions of the product in question and the way in which they are achieved forms part of an assessment necessarily involving subjective factors, potentially giving rise to uncertainty as to the extent and accuracy of that public’s knowledge, which risks undermining the objective pursued by the ground for refusal of registration provided for in Article 7(1)(e)(ii) of Regulation No 40/94, that being to prevent trade mark law from granting an undertaking a monopoly on technical solutions or functional features of a product (see, by analogy, judgment of 23 April 2020, Gömböc, C‑237/19, EU:C:2020:296, paragraph 35).

30

In the present case, the Board of Appeal found, first, that Article 7(1)(e)(ii) of Regulation No 40/94 applied where the shape of a product made it possible to obtain a technical result during its use, but did not apply to the manner in which the product was manufactured and, second, that, in the present case, the technical result linked to the shape of the contested mark concerned only the manufacturing process itself, but had no impact on the function performed by that product in the context of its use by the consumer.

31

Since the parties’ arguments focus on those two points, it is necessary, in order to assess the merits of the single plea in law relied on by the applicant, to examine in turn whether, first, the concept of ‘technical result’, within the meaning of Article 7(1)(e)(ii) of Regulation No 40/94, refers only to the manner in which the product functions and, second, whether, in the present case, the technical result linked to the shape of the contested mark concerns only the manufacturing process of the product itself.

32

The applicant and EUIPO doubt the merits of the Board of Appeal’s interpretation that the ground for refusal laid down by Article 7(1)(e)(ii) of Regulation No 40/94 applies where the shape provides a means for a product to obtain a desired technical result when used, but does not apply to the manner in which the product is manufactured. According to EUIPO and the applicant, that strict approach departs from the broad interpretation of the public interest underlying Article 7(1)(e)(ii) of Regulation No 40/94 which should be adopted.

33

Thus, the applicant submits, as does EUIPO, that the approach adopted by the Board of Appeal in the contested decision results from a literal interpretation of the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), and is based, in addition, contrary to the principles recalled in paragraphs 28 and 29 above, on a subjective assessment of the technical result that may result from the shape of the product.

34

Furthermore, the applicant considers, as does EUIPO, that the interpretation of Article 7(1)(e)(ii) of Regulation No 40/94 according to which the concept of ‘technical result’ refers exclusively to the manner in which the product is used by the consumer unduly restricts the applicability of that provision and has the effect of leading to undesirable results in the light of the purpose of that provision.

35

Lastly, the applicant states that, unlike the present case, which concerns a sophisticated product that was the subject of patent applications, the case which gave rise to the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), concerned a case in which the shape of a product had the sole benefit of simplifying the manufacturing process, without any effect on the manner in which the consumers used the product. The applicant infers that the findings of that judgment are not capable of substantiating the conclusion which the Board of Appeal came to in the contested decision.

36

The intervener submits that the Board of Appeal correctly interpreted Article 7(1)(e)(ii) of Regulation No 40/94 and that it correctly applied the principles arising from the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604).

37

It should be stated at the outset that the correct application of Article 7(1)(e)(ii) of Regulation No 40/94 requires that the essential characteristics of the three-dimensional sign at issue are necessary to obtain a technical result.

38

After concluding that the essential characteristics of the contested mark made it possible to obtain a technical result, the Board of Appeal nevertheless found, in paragraph 50 of the contested decision, that a result of a technical nature was not necessarily a ‘technical result’ within the meaning of Article 7(1)(e)(ii) of Regulation No 40/94.

39

The Board of Appeal found, in paragraph 52 of the contested decision, that a distinction had to be made between, on the one hand, the manner in which the product was manufactured and, on the other, the manner in which the product functioned. Thus, according to the contested decision, the ground for refusal laid down in Article 7(1)(e)(ii) of Regulation No 40/94 applies where the shape provides a means for a product to obtain a desired technical result when it is used, but does not apply to the manner in which the product is manufactured.

40

In that regard, the Board of Appeal found, in paragraph 53 of the contested decision, that such an interpretation was confirmed by the objective pursued by the provision at issue, which consists of ‘preventing a monopoly from being granted on technical solutions which a user is likely to seek in the goods of competitors’. According to the contested decision, ‘from the consumer’s perspective, the manner in which the goods function is decisive and their method of manufacture is not important’.

41

It must be noted that, in order to conclude that Article 7(1)(e)(ii) of Regulation No 40/94 does not apply where the technical result obtained as a result of the shape of the contested mark concerns only the manufacturing process of the product itself, the Board of Appeal relied on the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604).

42

It should be borne in mind that, in the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), the Court has held that Article 3(1)(e)(ii) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25) – drafted in terms identical to those of Article 7(1)(e)(ii) of Regulation No 40/94 – had to be interpreted as referring to the manner in which the product at issue functioned and did not apply to the manner in which it was manufactured. In so doing, the Court distinguishes, with regard to the concept of ‘technical result’, on the one hand, the use of the product and, on the other, its manufacture.

43

Thus, that distinction of principle applied by the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), served to clarify the scope of Article 7(1)(e)(ii) of Regulation No 40/94, by establishing that only the technical results which were apparent during the product at issue’s use were relevant for the application of that provision.

44

Consequently, in finding that the ground for refusal laid down in Article 7(1)(e)(ii) of Regulation No 40/94 applied where the shape provided a means for a product to obtain a technical result when used, but did not apply to the manner in which the product was manufactured, the Board of Appeal did not err in its interpretation of that provision.

45

The arguments put forward by the applicant and EUIPO are not such as to cast doubt on that finding.

46

In the first place, as regards the argument of the applicant and EUIPO that the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), tends to favour a subjective assessment of the technical result that may result from the shape of the product, it should be noted, as observed by the intervener, that the assessment of the possible technical function of a shape must necessarily be carried out by taking into account the use of the product from the perspective of the relevant public. That finding does not alter the fact that the assessment of the functionality of the product must be carried out not in the light of the benefits received by the user, that assessment being necessarily subjective, but must be based on objective elements, such as the documentation describing the functional elements of the shape concerned. Therefore, rather than adding a subjective element based on the perception, by the consumer, of the technical result of the shape of the product, it follows from that judgment that it is necessary to assess, objectively, the technical result likely to be obtained in the context of the consumer’s use of the product.

47

In the second place, as regards the argument of the applicant and EUIPO alleging that a distinction between the manufacturing process and the use of a product is contrary to the objective pursued by Article 7(1)(e)(ii) of Regulation No 40/94, it should be recalled, as observed by the intervener, and as is apparent in particular from paragraph 55 of the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), that that provision seeks to prevent trade mark law from granting a monopoly on technical solutions likely to be sought by the user in the products of competitors. It follows that the assessment of the technical result must be carried out in the light of the functionalities of the shape during the product’s use, whereas the manner in which it is manufactured is, as such, irrelevant from the point of view of the consumer, and in particular of the end consumer. Therefore, the distinction made by the Board of Appeal cannot be regarded as contrary to the purpose of that provision, but, conversely, falls within the objective which it pursues.

48

In the third place, although the applicant submits that the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604), is not applicable to the present case, in particular on account of the particular circumstances of the case, relating in particular to the sophistication of the product at issue or the existence of earlier patent applications, it must be noted that, in that judgment, the Court of Justice ruled in the context of a question referred for a preliminary ruling concerning the interpretation of a provision which, as recalled in paragraph 42 above, is drafted in terms identical to those of Article 7(1)(e)(ii) of Regulation No 40/94. The interpretation provided by the Court of Justice, based exclusively on an analysis of the provision itself, is, consequently, of general application. It follows that the applicant cannot rely on the particular circumstances of the present case in order to justify an interpretation different from that adopted by the Court of Justice in the judgment of 16 September 2015, Société des Produits Nestlé (C‑215/14, EU:C:2015:604).

49

It follows that the Board of Appeal was entitled, without disregarding either the objective pursued by Article 7(1)(e)(ii) of Regulation No 40/94 or the relevant case-law, to base its analysis on the distinction between the technical results linked to the manufacturing process of the product and those apparent during its use.

50

Accordingly, for the purpose of assessing the merits of the single plea raised by the applicant, it is necessary to examine whether, in the present case, that distinction was correctly applied and whether the essential characteristics of the mark at issue produce a technical result which is limited to the manufacturing process of the product.

51

The applicant submits that each of the essential characteristics of the contested mark fulfils a technical function with regard to the products covered by the registration.

52

The applicant asserts that the Board of Appeal erred in finding that the result of the first three essential characteristics of the contested mark only concerned the manufacturing process of the product. The applicant submits that the shape of the contested mark makes the basic function of the product, consisting of containing liquid, more effective. The applicant states that that shape, in making it possible to maintain and improve the packaging function of the product with a reduced quantity of material, brings in itself new properties and improvements which continue to exist after the manufacture.

53

The applicant maintains in addition that the shape of the product, which makes it possible to obtain the technical result of weighing less, makes the storage, handling and transport easier, while ensuring the stability and rigidity of the packaging. The applicant submits that account should be taken of the fact that the shape of the product has environmental benefits, in terms of the reduction of the resources consumed and waste produced.

54

The applicant adds that the technical results of the contested mark extend throughout the entire supply chain. According to the applicant, the principal customers of the products designated by the contested mark, namely the professional intermediaries of the foodstuff industry, objectively benefit, in the context of the normal use of the product, from the benefits arising from the shape of the contested mark. According to the applicant, those benefits also extend to the retailers and end users.

55

EUIPO defers to the assessment of the Court as to the validity of the legal and factual considerations on the basis of which the Board of Appeal concluded that the shape of the product was not the cause of a technical result affecting the manner in which the product is used.

56

The intervener submits that the essential characteristics of the contested mark, which enable the ratio between the volume of the container and the surface of the packaging to be improved, are the result of an optimised manufacturing process, but do not lead to advantageous technical results during the product’s use.

57

The intervener adds that the customary packaging properties such as good stability and handling of the container, do not constitute a functional benefit for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94. It maintains that the functionalities of that nature are in fact basic features which are already present in most containers. Lastly, the intervener argues that the commercial and ecological benefits claimed by the applicant do not constitute technical benefits for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94.

58

According to the case-law, in examining the functionality of a sign consisting of the shape of goods, once the essential characteristics of the sign have been identified, it is necessary to assess whether those characteristics perform the technical function of the product concerned. Clearly, that examination must be carried out by analysing the sign filed or contested, and not signs consisting of other shapes of goods (see, to that effect, judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 84).

59

By the terms ‘exclusively’ and ‘necessary’, Article 7(1)(e)(ii) of Regulation No 40/94 ensures that solely shapes of goods which only incorporate a technical solution, and whose registration as a trade mark would therefore actually impede the use of that technical solution by other undertakings, are not to be registered (judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 48).

60

However, the condition that registration of a shape of goods as an EU trade mark may be refused under Article 7(1)(e)(ii) of Regulation No 40/94 only if the shape is ‘necessary’ to obtain the technical result intended, does not mean that the shape at issue must be the only one capable of obtaining that result (judgment of 14 September 2010, Lego Juris v OHIM, C‑48/09 P, EU:C:2010:516, paragraph 53).

61

It is in the light of those principles that it is necessary to examine the assessment of the technical result made by the Board of Appeal in the present case.

62

It is necessary, first, to recall the grounds relied on in that regard in the contested decision.

63

The Board of Appeal examined the technical functionality by analysing the shape of the contested mark and taking into account the application PCT/WO1997034809, filed on 29 October 1996 by the intervener under the Patent Cooperation Treaty, signed in Washington on 19 June 1970, as amended (‘the PCT application’). In paragraph 46 of the contested decision, the Board of Appeal found that the relevance of that application could not be called into question by the fact that the drawings contained therein showed variations from the contested mark. The Board of Appeal noted in that regard that, according to the case-law, the identity of a patent with the mark was not a condition for it to be taken into account when assessing the functionality of the essential characteristics of the mark.

64

On the basis, inter alia, of the details set out in the PCT application, the Board of Appeal noted in paragraphs 44, 47 and 49 of the contested decision that, in relation to traditional parallelepiped shapes, a prismatic shape such as that of the contested mark reduced the quantity of packaging paperboard necessary to hold a given volume of liquid. The Board of Appeal found that that technical result was achieved by means of the first three essential characteristics of the contested mark, recalled in paragraph 32 of the contested decision, which defined the structure and the shape of the container, whereas the fourth essential characteristic, linked to the presence of a sealing fin crossing the upper part of the shape, made it possible to guarantee the hermetic closure of the packaging. The Board of Appeal also found, in paragraphs 44 and 47 of the contested decision, that the shape of the contested mark ensured the stability and handling properties of the packaging.

65

The Board of Appeal found, in paragraph 55 of the contested decision, that the shape of the contested mark, by reducing the amount of material necessary for the manufacture of the product, was a source of benefits for the manufacturer, namely the proprietor of the contested mark, by enabling it to achieve savings and environmental sustainability objectives. It found, by contrast, that such benefits were not sought by the public targeted by the contested mark, namely professional intermediaries of the foodstuff industry who purchased empty packaging to fill them with liquids and foodstuffs.

66

In paragraphs 56 and 57 of the contested decision, the Board of Appeal examined the possible technical benefits of the contested mark for other categories of users, such as retailers and end users. The Board of Appeal nevertheless rejected the applicant’s arguments, finding, first, that the savings on transport costs were purely hypothetical, secondly, that sustainability gains were speculative in scope and, thirdly, that the applicant relied on benefits which were not of a technical but a commercial nature, highlighting, inter alia, that the customers of the mark were able to sell a larger quantity of foodstuff products, benefiting from packaging of greater capacity compared to classic bricks. As regards end consumers, the Board of Appeal found that the benefits claimed by the applicant did not concern the manner in which the product would be used by them.

67

Lastly, the Board of Appeal found, in paragraph 58 of the contested decision, that the shape of the contested mark had no positive effect as regards the handling and storage of the container and that it merely made it possible, on that point, to comply with the basic requirements applying to most items of packaging.

68

The Board of Appeal concluded, in paragraphs 59 and 60 of the contested decision, that the technical result obtained by the contested mark merely related to the manufacturing process of the product itself, but had no bearing on the function performed by that product.

69

Accordingly, it is apparent from the grounds of the contested decision that the Board of Appeal found, in essence, that the essential characteristics of the contested mark, first, enabled the product to fulfil its function as a container by preserving the stability and the handling properties of the packaging and, second, improved the ratio between the volume of the container and the quantity of material necessary for its manufacture. The Board of Appeal found, however, that neither maintaining the basic properties of the packaging nor improving the ratio between the volume of the container and the quantity of material needed constituted a technical result within the meaning of Article 7(1)(e)(ii) of Regulation No 40/94.

70

It is necessary to examine the assessment made by the Board of Appeal as regards, first, maintaining the basic properties of the product covered by the contested mark and, secondly, the improvement of the ratio between the volume of the container and the quantity of material necessary for its manufacture.

71

In the first place, it should be noted that, as is apparent in particular from paragraph 37 of the contested decision and from the PCT application, the product covered by the contested mark is a container the main technical function of which consists of holding liquids or foodstuffs. It should also be emphasised that, as the applicant observes, the essential characteristics of the contested mark all contribute to the product’s ability to fulfil that technical function, since, as is apparent from paragraph 49 of the contested decision, the first three essential characteristics define the structure and contours of the container, whilst the fourth essential characteristic ensures its hermetic closure.

72

Furthermore, it is apparent from the findings set out in paragraphs 44 and 47 of the contested decision, as well as from the PCT application, that the shape of the contested mark also ensures the stability of the container and its ability to be handled. As the applicant submits, such technical benefits, which contribute to the solidity of the container and its ability to be stacked and stored, are sought by the users of the product, in particular by the professional intermediaries of the foodstuff industry, who, as recalled in paragraph 37 of the contested decision, fill empty packaging with liquids or foodstuffs before distributing them as an end product. Such technical functions are relevant in the context of the use of the product since, as the applicant observes, the container, after being filled, must be stored, dispatched or handled without any issue of instability or risk of damage.

73

In the light of the foregoing, it must be concluded that the essential characteristics of the contested mark are necessary to obtain a technical result consisting of enabling the product to fulfil its function as a container intended to contain liquids or foodstuffs, while ensuring its stability and ability to be handled. Given that those characteristics enable the product to be used in accordance with the use for which it was designed, the applicant is justified in claiming that those characteristics are necessary to obtain a technical result which relates to the way in which the product functions.

74

In the second place, it is apparent from paragraphs 44, 47 and 49 of the contested decision that the first three essential characteristics of the contested mark make it possible to improve the container’s capacity in relation to the quantity of material necessary for its manufacture. In that regard, the Board of Appeal noted, in paragraph 47 of the contested decision, that, in relation to traditional parallelepiped shapes, a prismatic shape such as that of the contested mark reduced the quantity of packaging paperboard needed to hold a given volume of liquid.

75

Although the Board of Appeal concluded that such a technical benefit was only of benefit to the manufacturer, and therefore the proprietor of the contested mark, by enabling the manufacturer to achieve savings and environmental sustainability objectives, the following observations should be made.

76

First, as the applicant submits, optimising the container’s capacity makes the basic function of the product more effective. Indeed, the shape of the contested mark makes it possible, in respect of a given quantity of packaging material, to increase the quantity of liquids or foodstuffs contained in the container. In so far as it makes it possible to improve the basic function of the product, the shape of the contested mark cannot be regarded as being merely the result of an optimised manufacturing process which has no effect on the manner in which the product functions.

77

Secondly, as the applicant also points out, the improvement in the ratio between the volume of the container and the quantity of material necessary for its manufacture means that, in respect of a given volume, the packaging is lighter than traditionally shaped packaging. It should be noted in that regard that the intervener’s commercial communication highlights such technical benefits. Thus, it is apparent from an extract from the intervener’s website that the intervener states, in relation to the shape of the contested mark, that the use of a smaller quantity of packaging material does not compromise the performance of the product. That commercial communication also highlights the product’s lightness as well as its optimal efficiency, linked, inter alia, to its space-saving shape. Whilst, at the hearing, the intervener stated that the commercial communication contained subjective elements and did not provide precise information as to the technical benefits of a product, it follows, on the contrary, from the case-law that any documentation relevant to assessing the technical functions of a product may be taken into account, which includes, inter alia, catalogues or websites describing the technical features of the product (see, by analogy, judgment of 23 April 2020, Gömböc, C‑237/19, EU:C:2020:296, paragraph 34).

78

Furthermore, it should be noted that, as the applicant submits, the reduction of the weight and volume of the packaging constitutes a technical result that is relevant from the perspective of the public targeted by the contested mark. The prismatic shape of the product, enabling a reduction of the weight of the packaging and making it less bulky, offers a technical solution likely of being sought by professional intermediaries of the foodstuff industry. As the applicant states, a reduction in the weight of the packaging is likely, in particular, to facilitate its storage and transport.

79

It follows from the foregoing that the shape of the contested mark makes it possible to obtain less voluminous and lighter packaging than traditional packaging, on account of the use of a smaller quantity of material. Such a technical result is relevant from the point of view of the public targeted by the contested mark, by positively affecting the manner in which the product may be used by the professional intermediaries of the foodstuff industry.

80

Thirdly, the applicant claims that the shape of the contested mark is the source of technical benefits for the end consumer.

81

In that regard, it should be noted that, even where, as in the present case, the public targeted by the contested mark consists of professional customers, it may be relevant to analyse the functionality of the essential characteristics of that mark by taking into account not only the situation of those customers but also that of the end users. As the intervener observes in essence, professional intermediaries have an interest in ensuring that the technical result obtained as a result of the shape of the mark at issue meets not only their own needs, but also those of the end users, who are destined to purchase their products. Therefore, the Board of Appeal was right to examine whether the shape of the contested mark was likely to make it possible to obtain a technical result which would be useful for the end consumer.

82

In the present case, the applicant is justified in claiming that the Board of Appeal was wrong to conclude that the technical benefits resulting from the shape of the contested mark did not concern the manner in which the product would be used by the end consumers. It should be noted that the PCT application states that, on account of its particular shape, the packaging is easier to grasp and use for the consumer. Similarly, the extracts from the intervener’s website produced by the applicant refer to the ergonomic nature of the product’s shape. It is stated, in particular, that the product was designed in order to adapt perfectly to all hand sizes to offer a more comfortable grip during consumption.

83

It follows from paragraphs 71 to 82 above that the Board of Appeal erred in finding that the technical result obtained by the contested mark concerned only the manufacturing process of the product itself and had no effect on the function performed by that product. Consequently, the applicant is justified in claiming that the shape of the contested mark is necessary to obtain a technical result, within the meaning of Article 7(1)(e)(ii) of Regulation No 40/94.

84

The arguments put forward by the intervener are not such as to call that assessment into question.

85

First, although the intervener does not dispute that the essential characteristics of the contested mark enable the product covered by that mark to fulfil its principal function as a container while meeting the requirements of stability and ease of handling sought by the users of that type of product, the intervener considers that the shape of the contested mark only enables the product to perform its basic function, without offering any improvement in that regard over traditionally shaped packaging. That line of argument is consistent with the position adopted by the Board of Appeal in paragraph 58 of the contested decision, which states that the fact that the shape of the contested mark maintains the ability of the container to be grasped and stacked does not mean that that shape has a positive effect on those functionalities.

86

However, the fact that the shape of the contested mark serves the basic technical function of packaging items without, however, improving that function has no effect on the application of Article 7(1)(e)(ii) of Regulation No 49/94. As EUIPO observes, the application of that provision is not conditional upon the existence of an improved technical result. It is therefore necessary to point out that that provision is aimed at protecting the shape of goods which is necessary to obtain a technical result, and not only the innovative technical results that may be patented (judgment of 21 May 2015, Yoshida Metal Industry v EUIPO, T‑331/10 RENV and T‑416/10 RENV, not published, EU:T:2015:302, paragraph 59).

87

Similarly, the intervener’s claim that the shape of the contested mark makes it possible, as regards the stability of the product, to obtain a technical result equivalent to that of other shapes of packaging is irrelevant. Indeed, for the application of Article 7(1)(e)(ii) of Regulation No 49/94, the analysis of the functionality of a shape requires an examination of whether that shape is necessary to obtain a technical result, but does not require its comparison with other product shapes available on the market (see, to that effect, judgment of 26 March 2020, Tecnodidattica v EUIPO (Shape of globe and lamp bases), T‑752/18, not published, EU:T:2020:130, paragraph 33).

88

Secondly, the intervener submits that, even if the benefits for the consumer in terms of storing and handling the product were regarded as having been acquired, they should be regarded as economic and commercial results and not as a technical result. However, the shape of the contested mark, in so far as it facilitates the packaging and storage of the product, must be regarded as fulfilling a technical function (see, to that effect, judgment of 31 January 2018, Novartis v EUIPO – SK Chemicals (Representation of a transdermal patch), T‑44/16, not published, EU:T:2018:48, paragraph 63). Furthermore, it should be stated, as observed by the applicant and EUIPO, that EUIPO’s internal guidelines, in Part B, Section 4, Chapter 6, point 3, state that the term ‘technical result’ must include shapes which, in particular, ‘use the least material’ or which ‘facilitate convenient storage or transportation’.

89

Thirdly, the intervener submits that the applicant has not adduced evidence of the economic gains likely to be achieved by the customers of the contested mark as a result of the essential characteristics of the shape of that mark. That line of argument is consistent with the position adopted by the Board of Appeal in paragraph 57 of the contested decision, stated in paragraph 66 above, that the claimed savings by the applicant in terms of transport costs are purely hypothetical, while the claimed sustainability gains are speculative in scope.

90

However, as EUIPO stated at the hearing, Article 7(1)(e)(ii) of Regulation No 40/94 applies to the shape of goods which is necessary to obtain a technical result, without being required to demonstrate the extent of the benefits likely to ensue from that technical result. Accordingly, since the shape of the contested mark must be regarded as enabling a technical result to be obtained, the fact that the economic benefits likely to ensue from it are difficult to quantify, and hypothetical, in scope is not such as to preclude the application of Article 7(1)(e)(ii) of Regulation No 40/94.

91

Fourthly, the intervener highlighted, at the hearing, that the second essential characteristic of the contested mark, linked to the presence of four truncated angles, was an aesthetic element which made it possible to give the container a distinctive appearance.

92

However, the second essential characteristic gives the product covered by the contested mark its prismatic shape which increases the ratio between the container’s capacity and the quantity of material used in its manufacture, while guaranteeing its stability and handling properties, Thus, the second essential characteristic identified by the Board of Appeal fulfils a technical function, which is not disputed by the intervener.

93

It is apparent from the case-law that Article 7(1)(e)(ii) of Regulation No 40/94 does not apply where there is a major non-functional element, such as a decorative or imaginative element, which constitutes an essential characteristic of the contested mark but which is not necessary to obtain a technical result (judgment of 6 December 2023, BB Services v EUIPO – Lego Juris (Shape of a toy figure with a protrusion on its head), T‑297/22, EU:T:2023:780, paragraph 121).

94

By contrast, the fact that an essential element of the mark being contested, which is necessary to obtain a technical result, also has aesthetic value or an unusual character does not preclude the application of Article 7(1)(e)(ii) of Regulation No 40/94 (judgment of 5 July 2023, Wajos v EUIPO (Shape of a container), T‑10/22, not published, EU:T:2023:377, paragraph 45).

95

Consequently, the fact that the second essential characteristic, in addition to its technical function, may have an aesthetic value and give the contested mark an unusual shape is not such as to preclude the application of Article 7(1)(e)(ii) of Regulation No 40/94.

96

It follows from all of the foregoing that the applicant is justified in claiming that the Board of Appeal misapplied Article 7(1)(e)(ii) of Regulation No 40/94 in concluding that that provision did not apply in the present case, on the ground that the technical result obtained by the essential characteristics of the contested mark concerned only the manufacturing process of the product itself, without affecting the function performed by that product.

97

It follows that the Board of Appeal erred in finding that the applicant was not justified in relying on the invalidity of the contested mark on the basis of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(e)(ii) of that regulation.

98

It should be noted that the applicant does not dispute the second ground of the contested decision, by which the Board of Appeal rejected the application for a declaration of invalidity in so far as it was based on Article 51(1)(b) of Regulation No 40/94. However, since the grounds for invalidity laid down in points (a) and (b) of that paragraph are independent of each other, it is sufficient that one of them is well founded to justify the invalidity of the contested mark (see, to that effect, judgment of 19 June 2025, CeramTec, C‑17/24, EU:C:2025:455, paragraph 49).

99

Since the applicant is justified in claiming that the Board of Appeal was wrong to reject the first ground for invalidity on which it had relied, it follows that the Board of Appeal should have, on that ground alone, dismissed the intervener’s appeal brought before it.

100

The contested decision must, therefore, be annulled.

101

In its application, the applicant claimed that the Court should ‘declare [the registration of the contested mark] invalid’. At the hearing, the applicant stated that that form of order should be understood as meaning that it seeks, by alteration of the contested decision, the dismissal of the appeal brought by the intervener before the Board of Appeal.

102

In that regard, it is apparent from Article 72(2) and (3) of Regulation 2017/1001 that the General Court is to have jurisdiction to annul or to alter the decision of a Board of Appeal of EUIPO. That power to alter decisions does not have, however, the effect of conferring on the General Court the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions is thus limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of law and fact as established, what decision the Board of Appeal was required to take (see, to that effect, judgment of 23 January 2025, EUIPO v Neoperl, C‑93/23 P, EU:C:2025:33, paragraphs 68 and 69).

103

In the present case, after reviewing the Board of Appeal’s assessment of the ground relating to the application of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(e)(ii) of that regulation, the Court is in a position to ascertain which decision the Board of Appeal was required to take, from which it follows that it has the power to alter the contested decision.

104

Since the single plea in law raised by the applicant was upheld, it follows that the Board of Appeal had to find, like the Cancellation Division, that the contested mark was invalid on the basis of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(e)(ii) of that regulation. The Board of Appeal was then required to dismiss the appeal brought before it by the intervener. Consequently, the Court must, by altering the contested decision, reject the appeal brought before the Board of Appeal (see, to that effect, judgment of 16 May 2017, Airhole Facemasks v EUIPO – sindustrysurf (AIR HOLE FACE MASKS YOU IDIOT), T‑107/16, EU:T:2017:335, paragraphs 48 to 50).

105

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.

106

In so far as the contested decision is annulled and altered, the intervener is unsuccessful. The same applies to EUIPO, notwithstanding the form of order sought by EUIPO, in the alternative, that the action be upheld (see, to that effect, judgment of 18 June 2019, W. Kordes’ Söhne Rosenschulen v EUIPO (Kordes’ Rose Monique), T‑569/18, not published, EU:T:2019:421, paragraph 40).

107

It must be observed that the applicant has applied for EUIPO ‘or, if applicable,’ the intervener, to be ordered to pay the costs. The applicant must therefore be regarded as requesting that EUIPO, primarily, or the intervener, in the alternative, be ordered to pay the costs. Therefore, EUIPO must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.

108

The intervener shall bear its own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber, sitting with five Judges)

hereby: