Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (T-550/14)

Contents

Judgment of the General Court (Sixth Chamber)17 September 2015^note(Community trade mark — Application for Community word mark COMPETITION — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)In Case T‑550/14,Volkswagen AG, established in Wolfsburg (Germany), represented by U. Sander, lawyer,vOffice for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by M. Fischer, acting as Agent,THE GENERAL COURT (Sixth Chamber),composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,Registrar: E. Coulon,having regard to the application lodged at the Court Registry on 23 July 2014,having regard to the response lodged at the Court Registry on 7 October 2014,having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to rule on the action without an oral procedure pursuant to Article 135a of the Rules of Procedure of the General Court,gives the following

Judgment

Background to the dispute

1On 11 April 2013, the applicant, Volkswagen AG, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

2Registration as a mark was sought for the word sign COMPETITION.

3The goods and services in respect of which registration was sought are in Classes 12, 28, 35 and 37 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 correspond, for each of those classes, to the following description:— Class 12: ‘Motorised land vehicles and parts therefor; motors and engines and drive systems for land vehicles, drive mechanisms for land vehicles and parts therefor; couplings for land vehicles; chassis for land vehicles; vehicle chassis; bodies for vehicles; pneumatic tyres, inner tubes for tyres, non-skid devices for vehicle tyres, repair outfits for inner tubes, adhesive rubber patches for repairing tyre inner tubes, tyres for vehicle wheels, studs for tyres, anti-skid chains, snow chains, vehicle wheel rims, solid rubber tyres for vehicle wheels, vehicle wheels, wheel hubs for cars; shock absorbers for vehicles, shock absorbing springs for vehicles; head-rests for vehicle seats; vehicle seats; rear-view mirrors; anti-theft alarms for vehicles, anti-theft devices for vehicles; cigar lighters for automobiles; vehicles, motor-vehicles and parts thereof; motor buses; lorries; caravans, trailers and semi-trailers for vehicles, trailer hitches for vehicles; tractors; motorcycles; mopeds; omnibuses’;— Class 28: ‘Model vehicles, model cars and toy cars; scale model kits [toys]; vehicles for children (included in class 28), scooters (children’s vehicles); playing cards, soft toys and other soft toy articles; games equipment, video game equipment, portable games with LCD display’;— Class 35: ‘Retail and wholesale services in relation to motor vehicles, motor vehicle parts and motor vehicle accessories; retail and wholesale mail order services in relation to motor vehicles, motor vehicle parts and motor vehicle accessories; retailing and wholesaling via the internet of motor vehicles, motor vehicle parts and motor vehicle accessories; retail and wholesale teleshopping services in relation to motor vehicles, motor vehicle parts and motor vehicle accessories; collection (except transport thereof) of various motor vehicles, motor vehicle parts or various motor vehicle accessories, for others, enabling customers to view and purchase these goods conveniently in a retail sales outlet; arranging of contracts, for others, for the buying and selling of motor vehicles, motor vehicle parts and motor vehicle accessories; business administration and organisational administration of vehicle fleets, for others’;— Class 37: ‘Conversion, fix, maintenance services, disassembly, maintenance, care, purification and vehicle painting, motors and engines and all parts therefor, assembly of vehicles, motors and engines and all parts therefor, for others, vehicle breakdown assistance [repair]; custom conversion of motor vehicle bodies, chassis, motors and engines (tuning), including in Class 37’.

4By decision of 26 August 2013, the examiner rejected the application for registration in respect of the goods and services in question, pursuant to Article 7(1)(b) and Article 7(2) of Regulation No 207/2009.

5On 25 October 2013, the applicant lodged an appeal against the examiner’s decision, pursuant to Articles 58 to 64 of Regulation No 207/2009, in so far as it rejected the application for registration in respect of the goods and services in question.

6By decision of 15 May 2014 (‘the contested decision), the First Board of Appeal of OHIM dismissed that appeal on the ground that the sign ‘COMPETITION’ lacked distinctive character in relation to all the goods and services concerned, within the meaning of Article 7(1)(b) of Regulation No 207/2009. It held, in particular, that the sign would be perceived as indicating a specific category of goods, namely goods which meet the requirements of a competition, and are therefore adapted to the toughest of conditions, and the services which prepare vehicles for competitions.

Forms of order sought

7The applicant claims that the Court should:— annul the contested decision;— order OHIM to pay the costs.

8OHIM contends that the Court should:— dismiss the action;— order the applicant to pay the costs.

Law

9In support of its action, the applicant raises a single plea in law, alleging infringement of Article 7(1)(b) of Regulation No 207/2009. It maintains that the Board of Appeal should have concluded that the sign COMPETITION was sufficiently distinctive to serve as an indicator of the commercial origin of the goods and services in question.

10OHIM disputes that argument.

11It must be borne in mind that, under Article 7(1)(b) of Regulation No 207/2009, trade marks which are devoid of any distinctive character are not to be registered.

12According to consistent case-law, the marks referred to in Article 7(1)(b) of Regulation No 207/2009 are those which are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services in question, thus enabling the consumer who acquired them to repeat the experience if it proves to be positive, or to avoid it if it proves to be negative, on the occasion of a subsequent acquisition (judgments of 20 May 2009 in CFCMCEE v OHIM (P@YWEB CARD and PAYWEB CARD), T‑405/07 and T‑406/07, ECR, EU:T:2009:164, paragraph 33, and of 21 January 2011 in BSH v OHIM (executive edition), T‑310/08, EU:T:2011:16, point 23).

13The distinctive character of a sign must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception which the relevant public has of it (judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, ECR, EU:C:2010:29, paragraph 34, and of 9 September 2010 in OHIM v Borco-Marken-Import Matthiesen, C‑265/09 P, ECR, EU:C:2010:508, paragraph 32).

14As regards marks made up of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded by virtue of such use (judgments in Audi v OHIM, cited in paragraph 13 above, EU:C:2010:29, paragraph 35, and of 11 December 2012 in Fomanu v OHIM (Qualität hat Zukunft), T‑22/12, EU:T:2012:663, paragraph 15).

15As regards the assessment of the distinctive character of such marks, it is inappropriate to apply to them criteria which are stricter than those applicable to other types of sign (judgments in Audi v OHIM, cited in paragraph 13 above, EU:C:2010:29, paragraph 36, and in Fomanu v OHIM (Qualität hat Zukunft), cited in paragraph 14 above, EU:T:2012:663, paragraph 16).

16The Court has therefore held that an advertising slogan cannot be required to display ‘imaginativeness’ or even ‘conceptual tension which would create surprise and so make a striking impression’ in order to have the minimal level of distinctiveness required under Article 7(1)(b) of Regulation No 207/2009 (judgments in Audi v OHIM, cited in paragraph 13 above, EU:C:2010:29, paragraph 39, and of 21 October 2004 in OHIM v Erpo Möbelwerk, C‑64/02 P, ECR, EU:C:2004:645, paragraphs 31 and 32).

17It follows that a mark consisting in an advertising slogan must be regarded as being devoid of distinctive character if it is liable to be perceived by the relevant public as a mere promotional formula. On the other hand, such a mark must be recognised as having distinctiveness if, apart from its promotional function, it may be perceived immediately as an indication of the commercial origin of the goods or services in question (Order of 12 June 2014 in Delphi Technologies v OHIM, C‑448/13 P, EU:C:2014:1746, paragraph 37; judgments in Fomanu v OHIM (Qualität hat Zukunft), cited in paragraph 14 above, EU:T:2012:663, paragraph 22, and of 6 June 2013 in Interroll v OHIM (Inspired by efficiency), T‑126/12, EU:T:2013:303, paragraph 24).

18It is in the light of those considerations that the Court must examine whether, as the applicant submits, the Board of Appeal infringed Article 7(1)(b) of Regulation No 207/2009 by finding that the mark applied for was devoid of any distinctive character.

19As regards, first of all, the relevant public, the Board of appeal took the view that the goods and services covered by the application for registration of the sign COMPETITION were intended not only for a specialist public taking part in automobile competitions, but also for a broader public interested, for example, in vehicles or vehicle parts for competitions. That public, consisting of average consumers, was taken to be reasonably well informed and reasonably observant and circumspect. The applicant does not dispute that assessment, which, moreover, is error-free and must be endorsed.

20Nor does the applicant take issue with the Board of Appeal’s finding that the relevant public is the English-speaking and French-speaking public within the European Union. That finding must be upheld and, pursuant to Article 7(2) of Regulation No 207/2009, the absolute ground for refusal must be examined with reference to the English-speaking and French-speaking public. Indeed, the sign at issue, being composed entirely of a single word in the English language, will easily be understood by both an English-speaking public and a French-speaking public as meaning ‘competition’ (see, to that effect, the judgment of 7 July 2011 in Cree v OHIM (TRUEWHITE), T‑208/10, EU:T:2011:340, paragraph 18 and the case-law cited).

21Secondly, as regards the distinctive character of the mark applied for, the Board of Appeal considered that, for the vehicles and parts and fittings for vehicles included in Class 12, the relevant public would recognise an indication of a specific category of vehicles and parts for such vehicles that meet racing requirements. Similarly, it took the view that the mark applied for would be understood as an indication that the services included in Class 37 were services that prepared vehicles for competitions. Next, as regards the toys included in Class 28, the mark would be distinctive neither for toys which enabled competitions to be entered nor for products which ‘imitate’ ‘goods which are for competitions’. Lastly, the services included in Class 35 bore a relationship to the relevant products in Class 12, in respect of which the sign at issue had no distinctive character.

22In this case, the applicant takes issue with the association, made by the Board of Appeal, between the notion of competition and the products and services in question. According to the applicant, a measure of interpretation is required to make such an association and it lies at the periphery of the sign’s meaning. Since the sign has no content of a descriptive or purely laudatory nature, it has, the applicant maintains, sufficient distinctive character to serve as a Community trade mark.

23It must be observed that the sign at issue comprises a single word, commonly used in English and French, which means competition both in the sense of competitiveness and in the sense of a contest. In its application, the applicant agrees with that assessment.

24It may be added that the term ‘competition’ is an ordinary word and, as the applicant itself argues, one which will be familiar to relevant consumers in a ‘wide range of contexts’. It very clearly indicates a product or service that is intended for competition and that is therefore of excellent quality. Accordingly, the term ‘competition’ is laudatory for the sake of advertising, the purpose being to highlight the positive qualities of the goods or services for the presentation of which it is used (see, to that effect, the judgment of 30 June 2004 in Norma Lebensmittelfilialbetrieb v OHIM (Mehr für Ihr Geld), T‑281/02, ECR, EU:T:2004:198, paragraph 29 and the case-law cited). The term will therefore immediately be perceived by the relevant public as a laudatory advertising message which indicates that the goods and services in question offer consumers an advantage, in terms of quality, by comparison with competing goods (see, to that effect, the judgment of 3 July 2003 in Best Buy Concepts v OHIM (BEST BUY), T‑122/01, ECR, EU:T:2003:183, paragraph 29).

25As regards the ‘motorised land vehicles; vehicles, motor-vehicles; motor buses; lorries; caravans; tractors; motorcycles; mopeds; omnibuses’, included in Class 12, it must be held that the sign COMPETITION expresses a laudatory message the purpose of which is to highlight the positive qualities of the goods, for example their level of performance or their resilience, such as may be required in a competition, and thus also to highlight the fact that they are adapted to extreme conditions of use. As the Board of Appeal rightly pointed out in paragraph 11 of the contested decision, vehicles intended for competitions, such as motor races, are faster and have greater endurance than other vehicles. Moreover, there is nothing in the mark applied for, over and above its obvious promotional meaning, that might enable the relevant public to remember it easily and directly as a trade mark identifying the company that makes the vehicles in question.

26Contrary to the applicant’s claim, the word which constitutes the mark applied for is not equivocal and has no semantic depth such as would prevent the relevant public from making a direct link with those products (see, to that effect, the judgment of 29 January 2015 in Blackrock v OHIM (INVESTING FOR A NEW WORLD), T‑59/14, EU:T:2015:56, paragraph 33 and the case-law cited). The applicant is mistaken in its claim that such a link could only be made if the vehicles in question could, where appropriate, also be used in the context of a competition. Furthermore, the applicant’s assertion that the word ‘competition’ is used in contexts other than the automobile sector, such as in competition law, is irrelevant, since the distinctive character of a mark must be assessed by reference to the goods in relation to which registration is sought (see paragraph 13 above).

27Moreover, the argument that the term ‘competition’, unlike the epithets ‘Turbo’, ‘ABS’ or ‘4x4’, cannot serve as a direct description of a motorised land vehicle or of one of its essential characteristics, which the applicant puts forward, is of no effect since the contested decision is based on Article 7(1)(b) of Regulation No 207/2009, rather than on Article 7(1)(c) of that regulation. The applicant cannot, in this context, usefully rely on the judgment of 2 December 2008 in Ford Motor v OHIM (FUN) (T‑67/07, ECR, EU:T:2008:542), since, in the case which gave rise to that judgment, the Board of Appeal’s analysis of the distinctive character of the sign at issue was based entirely on an incorrect assessment of its descriptive character, for the purposes of Article 7(1)(c) of the regulation (judgment in Ford Motor v OHIM (FUN), EU:T:2008:542, paragraphs 53 and 54).

28Whilst acknowledging that the term ‘competition’ could convey specific information about the vehicles, the applicant argues that it would not be perceived by the relevant public ‘exclusively’ as information about the type of goods or services and their origin. It maintains that the informative content of the mark applied for, in relation to the products concerned, is not especially plain and simple and that the mark could therefore still serve, in the eyes of the relevant public, as an indicator of origin. It must be observed that the applicant has not managed to demonstrate the existence of any fanciful, surprising or unexpected element that might confer on the mark applied for a distinctive character in the minds of the relevant public such as to call into question the conclusion stated in paragraph 25 above.

29As regards vehicle parts and vehicle components included in Class 12, namely ‘parts [for motorised land vehicles]; motors and engines and drive systems for land vehicles, drive mechanisms for land vehicles and parts therefor; couplings for land vehicles; chassis for land vehicles; vehicle chassis; bodies for vehicles; pneumatic tyres, inner tubes for tyres, non-skid devices for vehicle tyres, repair outfits for inner tubes, adhesive rubber patches for repairing tyre inner tubes, tyres for vehicle wheels, studs for tyres, anti-skid chains, snow chains, vehicle wheel rims, solid rubber tyres for vehicle wheels, vehicle wheels, wheel hubs for cars; shock absorbers for vehicles, shock absorbing springs for vehicles; head-rests for vehicle seats; vehicle seats; rear-view mirrors; anti-theft alarms for vehicles, anti-theft devices for vehicles; cigar lighters for automobiles; [parts for] vehicles [and] motor-vehicles; trailers and semi-trailers for vehicles, trailer hitches for vehicles’, it must be stated that, as was rightly observed in paragraph 17 of the contested decision, the sign COMPETITION conveys a general promotional message in that it indicates that the goods in question may be used under competitive conditions or in competitions and that they are thus of higher quality or more resilient than ordinary goods. For example, in the field of motor sports, tyres have been developed to achieve the best possible lap times in qualifying sessions (see, to that effect and by analogy, the judgment of 13 December 2011 in Goodyear Dunlop Tyres UK v OHIM — Sportfive (QUALIFIER), T‑424/09, EU:T:2011:735, paragraph 44). Accordingly, the sign is a mere laudatory statement in relation to the goods in question.

30It should be observed in this connection that, usually, relevant consumers will specifically query the technical compatibility of this type of product with their vehicle (see, to that effect and by analogy, the judgment of 23 April 2013 in Apollo Tyres v OHIM — Endurance Technologies (ENDURACE), T‑109/11, EU:T:2013:211, paragraph 54). There is therefore a clear, direct link between this type of product and the vehicles included in Class 12 in relation to which the sign COMPETITION has no distinctive character, and consequently the sign is devoid of any distinctive character in relation to these goods too.

31As regards the services included in Class 37 (see paragraph 3 above), the Board of Appeal found that the mark applied for merely indicated that those services prepared vehicles for competitions and that the mark was therefore devoid of any distinctive character in relation to them. The applicant disputes that finding and maintains that there is no logical connection between the term ‘competition’ and the services in question and that the Board of Appeal’s interpretation goes beyond the scope of the semantic content of the mark. According to the applicant, in so far as concerns the services included in Class 37, the mark applied for does not ‘automatically’ bring to mind for the relevant public motor races and rallies; nor do members of the relevant public assume that changing a tyre, for example, will prepare their cars for such competitions.

32Those arguments are not convincing given the meaning of the term ‘competition’ and the way in which it will be understood by the relevant public. Indeed, all of the abovementioned services expressly relate to the goods at issue in Class 12, in respect of which it has been established that the sign in question has no distinctive character. The General Court has already had occasion to hold that the repair, maintenance and servicing of vehicles, included as services in Class 37, could be regarded as ancillary or complimentary to the vehicles included in Class 12, since they are frequently provided by the same undertaking that sells the motor vehicles (judgment of 26 January 2006 in Volkswagen v OHIM — Nacional Motor (Variant), T‑317/03, EU:T:2006:27, paragraph 44). Accordingly, the relevant public will perceive the sign, in relation to the services included in Class 37, in particular the maintenance of vehicles, motors and engines and parts therefor, as a laudatory statement in that the services in question render the vehicles competition-worthy or improve their performance. The meaning of the term ‘competition’, which the applicant does not dispute (see paragraph 23 above), is immediately and obviously apparent and requires no interpretation on the part of the relevant public.

33As regards the retail and wholesale services included in Class 35 (see paragraph 3 above), the Board of Appeal found, in paragraph 22 of the contested decision, that they expressly related to the goods at issue in Class 12, in relation to which the sign COMPETITION had no distinctive character. The applicant disputes that assessment, arguing that, since the Board of Appeal incorrectly assessed the distinctive character of the sign in relation to the goods included in Class 12, its assessment concerning these services is equally flawed. It must be observed that the applicant does not dispute the link established by the Board of Appeal between the goods included in Class 12 and the services included in Class 35, including the ‘collection (except transport thereof) of various motor vehicles, motor vehicle parts or various motor vehicle accessories, for others, enabling customers to view and purchase these goods conveniently in a retail sales outlet; arranging of contracts, for others, for the buying and selling of motor vehicles, motor vehicle parts and motor vehicle accessories; business administration and organisational administration of vehicle fleets, for others’, which fall within Class 35. Since the Court has determined that the mark applied for has no distinctive character in relation to any of the goods, it must also hold that, when members of the relevant public apprehend the obvious meaning of the sign, when deciding to purchase such goods, the term will be equally non-distinctive in relation to the sale of the goods, whether the sale is retail, wholesale, or over the internet.

34As regards the goods included in Class 28 (see paragraph 3 above), the Board of Appeal drew a distinction between toys which enabled competitions to be entered, such as playing cards and video games, on the one hand, and other goods which ‘imitate’ ‘goods which are for competitions’ on the other. It found that the mark applied for had no distinctive character in relation to any of these goods. The applicant puts forward no argument to call that conclusion into question in so far as it relates to the first group of goods.

35In so far as concerns the second group of goods, the applicant merely states, in substance, that since the Board of Appeal incorrectly assessed the distinctive character of the sign in relation to the goods included in Class 12, its assessment concerning these goods is equally flawed. It must be observed that the applicant does not dispute the connection established by the Board of Appeal between the two classes of goods. Since the Court has determined that the sign at issue has no distinctive character in relation to any of the goods included in Class 12, the applicant’s argument cannot be upheld in so far as concerns the goods included in Class 28. In any event, it must be observed that the mark applied for conveys a similar promotional message for all of the goods included in Class 28 (see paragraph 25 above) and it cannot, therefore, be perceived as an indication of the commercial origin of those goods.

36It follows from the foregoing that the mark applied for does not enable the relevant public either to identify the origin of the goods and services concerned or to distinguish them from the goods and services of other undertakings and that it is therefore not distinctive. Consequently, the sign does not permit the relevant public to identify the origin of the goods and services in question. That being so, the applicant’s allegation of infringement of Article 7(1)(b) of Regulation No 207/2009 is unfounded.

37That conclusion is not called into question by the applicant’s other arguments.

38First of all, the applicant maintains that, in the automobile sector, the relevant public is familiar with marks and sub-brands that are, to a greater or lesser extent, in the nature of ‘advertising’. Accordingly, the consumer will readily perceive the sign COMPETITION as an indication of origin for all the goods and services in question, and thus as a distinctive sign.

39That argument, it must be said, directly contradicts the argument set out in paragraph 16 of the application, by which the applicant maintains that the term ‘competition’ has no laudatory effect. It may also be observed that the applicant does not take issue with the meaning which the Board of Appeal ascribed to the mark applied for or with the Board’s conclusions regarding the identity of the relevant public or its level of attention. It must be pointed out that, as may be seen from the foregoing considerations, the sign COMPETITION, even as a promotional term, is not sufficiently original or resonant to require at least some interpretation, thought or analysis on the part of the relevant public, as that public is led to associate the sign immediately with the goods and services in question. Given the meaning ascribed to the sign in paragraph 23 above, the message conveyed to that public is, in fact, in the nature of advertising. Its function is to highlight the positive qualities of the goods and services offered as being adapted to competition conditions. Furthermore, it must be observed that, since the relevant consumer is not very attentive if a sign does not indicate to him the origin or intended use of the thing he wishes to purchase, but just gives him purely promotional, abstract information, he will not take the time either to enquire into the various possible functions of the term in question or mentally to register it as a trade mark (see, to that effect, the judgment in Fomanu v OHIM (Qualität hat Zukunft), cited in paragraph 14 above, EU:T:2012:663, paragraph 30 and the case-law cited). The applicant’s arguments relating to other marks and brands in the same sector must therefore be rejected.

40The same applies to the applicant’s allegation that, in substance, the Board of Appeal did not regard it as impossible, or virtually impossible that the relevant public would perceive the mark applied for as having the requisite distinctive character. It must be held that no distinctive character may be attributed to the mark applied for and consequently the Board of Appeal did not apply the criterion laid down in Article 7(1)(b) of Regulation No 207/2009 too strictly by dismissing the appeal brought before it.

41Secondly, as regards the applicant’s argument that, in substance, in light of its own practice in relation to registration, the Board of Appeal should have regarded the mark applied for as having distinctive character, it must be borne in mind that OHIM is under a duty to exercise its powers in accordance with the general principles of EU law, such as the principle of equal treatment and the principle of sound administration (judgment of 10 March 2011 in Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, ECR, EU:C:2011:139, paragraph 73).

42In the light of the two last mentioned principles, OHIM must, when examining an application for registration of a Community trade mark, take into account the decisions already taken in respect of similar applications and consider with special care whether it should decide in the same way or not (judgment in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 41 above, EU:C:2011:139, paragraph 74).

43That said, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality (judgment in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 41 above, EU:C:2011:139, paragraph 75).

44Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else (judgment in Agencja Wydawnicza Technopol v OHIM, paragraph 41 above, EU:C:2011:139, paragraph 76).

45Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and comprehensive, in order to prevent trade marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (judgment in Agencja Wydawnicza Technopol v OHIM, cited in paragraph 41 above, EU:C:2011:139, paragraph 77).

46In the present case, it has become apparent that, contrary to what may have been the position with regard to certain earlier applications for the registration as trade marks of signs, the present application was caught by one of the grounds for refusal set out in Article 7(1)(b) of Regulation No 207/2009.

47That being so, and given the fact that the mark applied for is devoid of any distinctive character, the applicant cannot successfully rely on OHIM’s previous decisions, as the Board of Appeal correctly held in paragraph 24 of the contested decision.

48Thirdly, there is no need for the Court to examine the argument that, in substance, the mark applied for is not descriptive and that there is no need to preserve its availability. Given that the Board of Appeal did not base the contested decision on the absolute ground for refusal in Article 7(1)(c) of Regulation No 207/2009 and that the applicant claims only the annulment of the contested decision, the application of Article 7(1)(c) of Regulation No 207/2009 does not form part of the subject-matter of this dispute for the purposes of Article 65 of that regulation or, therefore, of the review of legality which the European Union Courts are required to undertake in this case (see, to that effect, the judgments in CFCMCEE v OHIM (P@YWEB CARD and PAYWEB CARD), cited in paragraph 12 above, EU:T:2009:164, paragraph 93 and the case-law cited).

49In any event, according to settled case-law, it is sufficient that one of the absolute grounds for refusal applies in order for the sign at issue not to be registrable as a Community trade mark (see the judgment of 16 March 2006 in Telefon & Buch v OHIM — Herold Business Data (WEISSE SEITEN), T‑322/03, ECR, EU:T:2006:87, paragraph 110 and the case-law cited).

50In light of all the foregoing, the action must be dismissed in its entirety.

Costs

51Under 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.

Operative part

On those grounds,THE GENERAL COURT (Sixth Chamber)hereby:

1.Dismisses the action;

2.Orders Volkswagen AG to pay the costs.

Delivered in open court in Luxembourg on 17 September 2015.