44Accordingly, contrary to the applicant’s submission, the Board of Appeal was entitled to take the view that ‘in so far as [it was] the graphic representation that defin[ed] the mark, ... whether the mark is a position mark or a figurative mark is irrelevant’ (see paragraph 12 above). The Board of Appeal was also entitled to proceed on the basis that the mark at issue could not be dissociated from the shape of a part of the goods in respect of which it was protected, namely the upper part of a sports shoe, and that the determining factor in the light of the scope of its protection was the way in which it will be perceived on the sole basis of the sign as registered.
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