Judgment_paragraph 48 · adidas AG v European Union Intellectual Property Office (T-307/17)

48In the context of its second claim, the applicant, supported by the intervening association, submits that the Board of Appeal misapplied the ‘law of permissible variations’. The applicant submits that, according to that law, the use of a mark in a form differing in elements which do not alter the distinctive character of that mark in the form under which it was registered is also considered as use of that mark. The applicant argues that, contrary to what the Board of Appeal held, all the documents which it produced relate to forms of use of the mark at issue for which the distinctive character of that mark is not affected. Accordingly, those forms of use are relevant for the purposes of assessing whether the mark at issue has acquired distinctive character.