59Although the parties agree that the contested design is intended to be applied, like the prior design, to promotional items for games, an examination of the design shows that it belongs to a particular category of those promotional items. In addition, as the Board of Appeal noted at paragraph 17 of the contested decision, the intervener submitted evidence to the Board of Appeal concerning the goods in question, in particular evidence concerning ‘tazos’, which it has been marketing since 1995. Thus, the Board of Appeal was entitled to find that the intervener had thereby enabled the nature and function of the goods, game pieces known as ‘pogs’, ‘rappers’ or ‘tazos’, actually to be determined. Moreover, at paragraph 16 of the contested decision, the Board of Appeal stated that those specific promotional items for games were intended for young children and that they were generally used to promote biscuits or potato snacks, which is agreed by the parties.
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