Judgment_paragraph 23 · bet365 Group Limited v European Union Intellectual Property Office (T-304/16)

23Furthermore, it must be acknowledged that the applicant’s single plea in law, even though it expressly refers only to an infringement of Article 7(3) of Regulation No 207/2009, which concerns in particular the registration of marks which are in themselves descriptive and not distinctive, but which have acquired distinctive character through use on the date of the application for their registration, also concerns an infringement of Article 52(2) of that regulation (now Article 59(2) of Regulation 2017/1001), applicable in invalidity proceedings such as in the present case, by virtue of which a mark which is in itself descriptive and not distinctive which has been registered in breach of Article 7 of Regulation No 207/2009 may nevertheless not be declared invalid if, in consequence of the use which has been made of it, it has acquired, after registration, distinctive character in relation to the goods or services for which it is registered. As was, in essence, stated in the judgment of 28 September 2016, European Food v EUIPO — Société des produits Nestlé (FITNESS) (T‑476/15, currently under appeal, EU:T:2016:568, paragraph 64), the invalidity proceedings based on absolute grounds for refusal provided for in Article 52 of Regulation No 207/2009 directly refers to the absolute grounds for refusal set out in Article 7 of that regulation, and to the exception of the acquisition of distinctive character through use which moderates them, the only potential substantive difference between the two procedures being the time at which the acquisition of such distinctive character must be assessed. In that regard, in the judgment of 15 December 2016, Mondelez UK Holdings & Services v EUIPO — Société des produits Nestlé (Shape of a chocolate bar) (T‑112/13, not published, EU:T:2016:735, paragraph 117), the Court confirmed that, in invalidity proceedings based on absolute grounds for refusal, the proprietor of the contested mark was entitled either to prove that it had acquired distinctive character owing to the use that had been made of it before its registration or that it had acquired such character between its registration and the date of the request for a declaration of invalidity.