Case T‑236/16

Biogena Naturprodukte GmbH & Co KG

v

European Union Intellectual Property Office

(EU trade mark — Application for EU figurative mark ZUM wohl — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Reference to statement submitted to the Board of Appeal reproduced in the application — Evidence annexed to the request for a hearing)

Summary — Judgment of the General Court (Ninth Chamber), 22 June 2017

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — Reference to statement submitted to the Board of Appeal reproduced in the application — Inadmissibility

   (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

2. Judicial proceedings — Time-limit for producing evidence — Article 85(1) and (3) of the Rules of Procedure of the General Court — Evidence submitted for the first time in an annex to the request for a hearing after closure of the written stage of the proceedings — Inadmissibility

   (Rules of Procedure of the General Court, Art. 85(1) and (3))

3. EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU

   (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration — Obligation to state the reasons for refusing to register — Scope

   (Council Regulation No 207/2009, Arts 7(1), and 75)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Aim — Need to preserve availability

   (Council Regulation No 207/2009, Art. 7(1)(c))

6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Criteria

   (Council Regulation No 207/2009, Art. 7(1)(c))

7. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Figurative mark ZUM wohl

   (Council Regulation No 207/2009, Art. 7(1)(c))

8. EU trade mark — Definition and acquisition of the EU trade mark — Prior registration of the trade mark in certain Member States — Effect

   (Council Regulation No 207/2009)

1.  In accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 177(1)(d) of the Rules of Procedure of the General Court, an application must contain the pleas and arguments on which it is based as well as a summary of those pleas. That statement must be apparent from the text of the application itself and be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information.

   Whilst the text of the application can be supported by references to extracts in documents annexed to it, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, the annexes having a purely evidential and instrumental function. It follows that an application, in so far as it refers to pleadings submitted to EUIPO, is inadmissible to the extent that the general references in it cannot be linked to the pleas and arguments put forward in that application itself.

   The same applies where the reference pertains to a measure reproduced in the body of the application without indication of which specific points of the statement of the grounds of the application the applicant wishes to support, or which extracts of the measure in question represent the elements that may support or supplement the grounds of the application, since such incorporation is in no way different, in this case, from reference to an annex to an application. Otherwise, by simply reproducing the annexes in the body of the application, the applicants would be able to circumvent the case-law concerning the incompatibility of general references to annexes with the formal requirements laid down by the provisions of the Statute of the Court of Justice of the European Union and of the Rules of Procedure.

   Thus, even if the statement submitted to the Board of Appeal is entirely reproduced in the background to the dispute presented in the application, it is not for the Court to search, either in that statement or in the extracts in the application reproducing that statement, for the arguments to which the applicant might be referring and to examine them, since those arguments are inadmissible.

   (see paras 11-14)

2.  According to Article 85(1) and (3) of the Rules of Procedure, evidence is to be submitted in the first exchange of pleadings, the main parties exceptionally having the opportunity to produce further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified.

   Evidence produced, for the first time, as an annex to the request for a hearing after the close of the written part of the procedure must be declared inadmissible according to Article 85(1) and (3) of the Rules of Procedure, in the absence of any justification for the delay submitted in the request for a hearing, in the absence of any relevant explanation for such delay in reply to a question for that delay by the need to comply with the adversarial principle.

   (see paras 16, 18-21)

3.  See the text of the decision.

   (see para. 26)

4.  See the text of the decision.

   (see para. 27)

5.  See the text of the decision.

   (see para. 32)

6.  See the text of the decision.

   (see paras 33-35)

7.  See the text of the decision.

   (see paras 37-39, 43-45, 50, 56, 57, 61)

8.  See the text of the decision.

   (see para. 60)