ORDER OF THE GENERAL COURT (Sixth Chamber)

7 June 2016 (*)

(EU trade mark — Application for the EU figurative mark WE CARE — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

In Case T‑222/15,

Beele Engineering BV, established in Aalten (the Netherlands), represented by M. Ring, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by H. O’Neill, acting as Agent,

defendant,

ACTION brought against the decision of the First Board of Appeal of EUIPO of 11 February 2015 (Case R 1933/2014-1), relating to an application for registration of the figurative sign WE CARE as an EU trade mark,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, A.M. Collins and V. Valančius, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the General Court on 4 May 2015,

having regard to the response lodged at the Court Registry on 15 July 2015,

having regard to the reply lodged at the Court Registry on 9 October 2015,

having regard to the rejoinder lodged at the Court Registry on 23 December 2015,

makes the following

Order

 Background to the dispute

1        On 18 February 2014, the applicant, Beele Engineering BV, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

2        Registration as a mark was sought for the following figurative sign:

3        The goods and services for which registration was sought, as amended on 18 June 2014, are in Classes 1, 6, 9, 17, 19, 25, 28, 37 and 41 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 to the following description:

–        Class 1: ‘Chemicals used in industry; unprocessed artificial resins, unprocessed plastics; fire extinguishing compositions; fire-retarding compositions, in particular for sealants; fire-retarding compositions, in particular for heat-expandable materials; chemical substances and materials for use in the field of fire resisting sealing devices’;

–        Class 6: ‘Pipes and tubes of metal; metal plates and rings for sealing systems; blocking and fastening materials of metal for sealing systems; conduits of metal, metal frames having conduits, metal blocks having conduits’;

–        Class 9: ‘Optical, signalling, checking (supervision), life-saving apparatus; fire-extinguishing apparatus; luminescent displays’;

–        Class 17: ‘Rubber; polymer material vulcanizable to rubber; plastics in extruded form for use in manufacture; stopping and insulating materials; flexible sleeves, not of metal; sealing plugs primarily of rubber or of polymer material vulcanizable to rubber, fire-resistant sealing plugs made primarily of rubber; sealing plugs, fire-resistant or non-fire resistant; waterproof packings in particular for sealingly surrounding pipes and/or cables; sealing packings; pipe muffs not of metal, insulating sheaths for cables; sealing material; sealing muffs made of rubber or polymer material vulcanizable to rubber; sealing gaskets; sealing sleeves made of rubber or rubber-like material, sealants made of polymer material vulcanizable to rubber; muffs, not of metal for pipes, not included in other classes; goods (not included in other classes) of foam, rubber or of plastics for use in sealing systems for pipes and/or cable transits’;

–        Class 19: ‘Building materials (non-metallic); non-metallic rigid pipes for building; non-metallic pipe and cable fill; refractory building materials that are non-metallic fireproof constructions; non-metallic conduits for pipes and/or cables; ceramic conduits for pipes and/or cables’;

–        Class 25: ‘Clothing; footwear; headgear’;

–        Class 28: ‘Games and playthings; gymnastic and sporting articles not included in other classes; decorations for Christmas trees’;

–        Class 37: ‘Construction; repair of sealing systems; installation of sealing systems or of exit routes in case of fire’;

–        Class 41: ‘Education; providing of training; entertainment; sporting and cultural activities’.

4        By decision of 19 June 2014, the examiner rejected the application for registration of the mark WE CARE for all the goods at issue on the basis of Article 7(1)(b) and Article 7(2) of Regulation No 207/2009, on the ground that the mark applied for lacked the distinctiveness which would enable it to function as a trade mark, given that it consisted of the expression ‘we care’, indicating that persons have a particular regard for something, and a non-distinctive graphic element which, viewed together, did not render the mark distinctive.

5        On 25 July 2014, the applicant filed a notice of appeal with EUIPO under Articles 58 to 64 of Regulation No 207/2009 against the examiner’s decision.

6        By decision of 11 February 2015 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the appeal.

7        The Board of Appeal found, in essence, that, the word element ‘we care’ would be understood, given its meaning, as a slogan communicating the message that the undertaking from which the goods and services originate is cautious, attentive, prudent or (socially or environmentally) responsible. It also considered that there was no aspect to the expression ‘we care’, be it from a grammatical, lexical or logical point of view, indicating that it could be perceived and remembered as anything else but a banal commercial statement. So far as concerns, subsequently, the presence of a circle and the use of the colour green by the mark applied for, the Board of Appeal found that there was nothing striking or original about them so as to enable the relevant consumer to perceive the mark as a whole as an indication of origin. Lastly, the Board of Appeal found that the combination of the various components of the mark applied for did not present anything allowing the relevant consumers to see or remember it as an indication of the commercial origin of the goods and services. The Board of Appeal added that the situation in the case before it differed from that of a widely-known slogan, used over many years and whose level of originality and resonance differed from that of the mark applied for. The Board of Appeal moreover observed that the fact that a part of the relevant public was a specialised one could not have a decisive influence on the legal criteria used to assess the distinctive character of the mark applied for. It also stated that the fact that EUIPO had registered other marks containing the words ‘we care’ could not mitigate in favour of allowing the EU mark applied for.

8        The Board of Appeal therefore concluded that the trade mark applied for was devoid of any distinctive character as required under Article 7(1)(b) of Regulation No 207/2009.

 Forms of order sought

9        The applicant claims that the Court should annul the contested decision.

10      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

11      As set out in Article 126 of the Rules of Procedure of the General Court, where the action is manifestly lacking any foundation in law, the General Court may, without taking further steps in the proceedings, give a decision on the action by reasoned order.

12      In the present case, the Court considers that it has sufficient information from the documents before it and has decided, pursuant to that provision, to give a decision on the action by reasoned order without taking further steps in the proceedings, even though one of the parties has requested a hearing (see, to that effect, orders of 13 September 2011 in ara v OHIM — Allrounder (A), T‑397/10, not published, EU:T:2011:464, paragraph 18, and 17 July 2012 in L’Oréal v OHIM — United Global Media Group (MyBeauty TV), T‑240/11, not published, EU:T:2012:391, paragraph 10).

13      The applicant raises a single plea in support of its action. That plea has three parts to it, alleging (i) infringement of Article 7(1)(b) of Regulation No 207/2009, (ii) infringement by EUIPO of its administrative practice, in so far as it had agreed to register other marks containing the sole word element ‘we care’, which is therefore sufficient to confer on those marks distinctive character, and (iii) registration of the applicant’s mark by the South Korean Intellectual Property Office.

 Infringement of Article 7(1)(b) of Regulation No 207/2009

14      Under Article 7(1)(b) of Regulation No 207/2009, trade marks which are devoid of any distinctive character are not to be registered.

15      It is settled case-law that for a trade mark to possess distinctive character for the purposes of that provision, it must serve to identify the goods in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings (judgments of 29 April 2004 in Procter & Gamble v OHIM, C‑473/01 P and C‑474/01 P, EU:C:2004:260, paragraph 32; 8 May 2008 in Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 66; and 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 33), so that the consumer who acquires the goods designated may repeat the experience, if it proves to be positive, or avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (see judgment of 11 December 2012 in Fomanu v OHIM (Qualität hat Zukunft), T‑22/12, not published, EU:T:2012:663, paragraph 22 and the case-law cited).

16      A mark’s distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the relevant public’s perception of the mark (judgments of 29 April 2004 in Procter & Gamble v OHIM, C‑473/01 P and C‑474/01 P, EU:C:2004:260, paragraph 33; 8 May 2008 in Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 67; and 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 34).

17      As 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 as such by virtue of such use. For the purposes of assessing the distinctive character of such marks, it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign (judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraphs 35 and 36, and 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 25).

18      While the criteria for the assessment of distinctive character are the same for different categories of marks, it may be that, for the purposes of applying those criteria, the relevant public’s perception is not necessarily the same in relation to each of those categories and it could therefore prove more difficult to establish distinctiveness in relation to marks of certain categories as compared with marks of other categories (judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 37, and 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 26).

19      Such difficulties do not justify, in any event, the laying down of specific criteria supplementing or derogating from the criterion of distinctiveness in respect of word marks consisting of advertising slogans (see, to that effect, judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 38, and 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 27).

20      In particular, 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 be found distinctive (judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 39, and 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 28).

21      Furthermore, the mere fact that a mark is perceived by the relevant public as a promotional formula, and that, because of its laudatory nature, it could in principle be used by other undertakings, is not sufficient, in itself, to support the conclusion that that mark is devoid of any distinctive character (judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 44, and 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 29).

22      The laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. Thus, such a mark can be perceived by the relevant public both as a promotional formula and as an indication of the commercial origin of goods or services. It follows that, in so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood — perhaps even primarily understood — as a promotional formula has no bearing on its distinctive character (judgments of 21 January 2010 in Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraph 45, and 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 30).

23      It 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 concluding that the mark applied for was devoid of any distinctive character.

24      In support of the first part of its single plea, the applicant puts forward, in relation to the expression ‘we care’, a series of arguments concerning, respectively, the colour green, the green circle and, lastly, the combination of the elements of the mark applied for.

25      First, as regard the meaning of the expression ‘we care’, the applicant claims that although that expression may contain a general message expressing the idea of taking care of its customers, looking after their interests and being responsive to their needs, that message cannot be applied in general to all goods and services. It submits that, since the goods concerned have a blocking and stopping function, the expression ‘we care’, which is not associated, in principle, with those functions, has some originality and is a play on words. The applicant adds that the expression ‘we care’ is original because the goods concerned require neither maintenance nor to be taken care of. The goods and services covered by the trade mark application fall within the industrial sector, where, in contrast to in the healthcare sector, the expression ‘we care’ is not commonly used. The applicant also submits that the part of the relevant public consisting of professionals does not expect the trade mark applied for. In its view, given that the goods concerned must be certified, the relevant public, while it expects the certification requirements to have been met, does not expect that someone ‘cares’.

26      Secondly, as regards the colour green, the applicant essentially argues that, since the goods covered by the trade mark application have a blocking and stopping function, the colour green, which stands for letting things come through, is clearly in contradiction with those goods. It further submits that the goods and services covered are not related to the environment; thus, even if the green colour were to lead the relevant public to make an association with environmental concerns, the goods and services to which the mark applied for relates do not give it any reason to make such an association.

27      Thirdly, as regards the green circle, the applicant submits that the circle cannot be regarded as a simple geometrical form but that, on the contrary, due to its size and shape, it will remind the relevant public of a green traffic light, which is in contradiction with the characteristics of the goods and services at issue. That figurative element is, according to the applicant, linked with those goods and services in a catchy and unusual way and is therefore very memorable.

28      Lastly, fourthly, as regards the combination of the elements in the mark applied for, the applicant, relying on the case-law on trade marks which also consist of slogans, claims that each of the elements of the mark applied for is original and does not immediately inform the relevant public of the characteristics of the goods and services covered by the trade mark application, and that some reflection or mental steps are required in order to make sense of each of those elements, in particular having regard to the goods and services concerned.

29      EUIPO disputes that line of argument.

30      In the first place, it must be noted, as the Board of Appeal correctly found in point 18 of the contested decision, that the goods and services concerned fall within various categories aimed at the general public and at a more specialised public. The level of attention of the relevant public is therefore likely to vary from normal to high. Furthermore, in so far as the mark applied for contains word elements in English, the existence of an absolute ground for refusal examined in the present case must be assessed, pursuant to Article 7(2) of Regulation No 207/2009, in relation to English-speaking consumers in the European Union. That definition of the relevant public is not, indeed, disputed by the applicant.

31      In the second place it must be observed, as it was by the Board of Appeal in point 19 of the contested decision, that the mark applied for is a compound mark composed of the word element ‘we care’ in green and a figurative element representing a green circle.

32      It must be recalled in this connection that the assessment of the distinctive character of a compound mark cannot be limited to an evaluation of each of its words or components, considered in isolation, but must, on any view, be based on the overall perception of that mark by the relevant public and not on the presumption that elements individually devoid of distinctive character cannot, on being combined, have a distinctive character. The mere fact that each of those elements, considered separately, is devoid of any distinctive character does not mean that their combination cannot present such character (judgment of 8 May 2008 in Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 41 and the case-law cited).

33      As regards, firstly, the word element, it is composed of the English expression ‘we care’, which means, as the Board of Appeal observed in point 20 of the contested decision, that the author and one or more other persons ‘express special regard or attention’. It must be stated that the semantic content of the word element at issue informs the relevant consumers of a characteristic of the undertaking and of its goods and services, namely that it is attentive and that its goods and services are manufactured or provided with care. Accordingly, the element ‘we care’ 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 judgment of 30 June 2004 in Norma Lebensmittelfilialbetrieb v OHIM (Mehr für Ihr Geld), T‑281/02, EU:T:2004:198, paragraph 29 and the case-law cited). That word element will therefore be perceived by the relevant public immediately as a promotional formula indicating that the goods and services concerned represent an advantage for the consumer in terms of quality as against competitors’ goods or services (see, to that effect, judgment of 17 December 2014 in Lidl Stiftung v OHIM (Deluxe), T‑344/14, not published, EU:T:2014:1097, paragraph 24 and the case-law cited).

34      Furthermore, it must be observed that the use of the colour green by the trade mark applied for could lead the relevant public to see in the expression ‘we care’ a reference to environmental concerns. In short, the colour green, although admittedly not associated solely with environmental friendliness, is customarily used to designate ecological or environmentally friendly products (see, to that effect, judgment of 27 February 2015 in Universal Utility International v OHIM (Greenworld), T‑106/14, not published, EU:T:2015:123, paragraph 24).

35      Moreover, as the Board of Appeal correctly observed in point 27 of the contested decision, nothing in the meaning or combination of words ‘we care’ deviates from the rules of English grammar so as to constitute a play on words or to suggest a mental effort on the part of the consumer. It must be stated that the word element ‘we care’ does not require any interpretative effort, nor shows any originality which would indicate to the consumer the origin of the goods or services concerned.

36      Applied to the goods and services at issue as a whole, the fact remains that the mark applied for would be likely to be perceived by the relevant public as a promotional formula indicating that the goods and services concerned are manufactured or provided with care and that the undertaking cares about the quality of its goods and services, or about environmental friendliness. The findings relating to the perception, in relation to the goods and services concerned, of the mark applied for made to this effect by the Board of Appeal in points 24 to 26 of the contested decision must therefore be endorsed.

37      Contrary to what the applicant claims, it must be stated that there is clearly no tension between the character of the goods and services covered, on account of their blocking nature, and the meaning of the ‘we care’ element. It should be noted, first, that the trade mark application does not cover only goods and services which have blocking and stopping functions, as the applicant concedes. Next, as EUIPO correctly argues, the message conveyed by the trade mark applied for (in particular, that the goods concerned are manufactured with care) is all the more relevant given that those goods may have the function of forming a barrier to protect against danger, such as fire.

38      That finding is not affected by the applicant’s arguments that the goods concerned need no maintenance. Even if the goods in question do not require maintenance or care, the word element ‘we care’ will nevertheless, on account of its inherent meaning, be perceived by the relevant public as a promotional formula rather than as a trade mark.

39      It follows from the foregoing that the applicant’s arguments concerning the meaning of the expression ‘we care’ are manifestly unfounded. The mere fact that the expression ‘we care’ is used less in the industrial sector, to which the mark applied for relates, than in other sectors, such as that of healthcare, moreover does not affect that conclusion. The applicant’s arguments in that regard must be rejected.

40      Regarding the colour green, it must be recalled, as the Board of Appeal pointed out in point 21 of the contested decision, that whilst colours are capable of conveying certain associations of ideas and of arousing feelings, they possess little inherent capacity for communicating specific information, especially since they are commonly and widely used, because of their appeal, in order to advertise and market goods or services, without any specific message (judgment of 9 December 2010 in Fédération internationale des logis v OHIM (Green convex square), T‑282/09, not published, EU:T:2010:508, paragraph 23). In the present case, it must be noted that, contrary to what the applicant claims, there is nothing to show that the relevant public will perceive the colour green as having the meaning of letting of things come through and as, therefore, being in contradiction with the goods and services concerned. For the reasons set out in paragraph 34 above and having regard to the mark applied for as a whole, it must be held that the colour green might be perceived by the relevant public as a reference to environmental concerns. Moreover, without it being necessary to rule on the admissibility of the documents submitted by the applicant in this connection, it must be stated that the argument according to which the colours red and blue are commonly used in the sector concerned does not cast doubt on that finding.

41      It follows that the applicant’s arguments concerning the colour green are manifestly unfounded.

42      As regards, next, the figurative element, that element is a banal geometric shape, a circle coloured green which might denote environmental friendliness.

43      It must be stated that the figurative element concerned does not contain anything capable of differentiating it from other representations of circles, or of retaining the consumer’s attention. Given its excessive simplicity, the circle at issue is not inherently capable of conveying a message which consumers will be able to remember (see, to that effect, judgments of 12 September 2007 in Cain Cellars v OHIM (Device of a pentagon), T‑304/05, not published, EU:T:2007:271, paragraphs 22 and 23, and 9 December 2010 in Green convex square, T‑282/09, not published, EU:T:2010:508, paragraphs 20 and 21).

44      It must also be stated that the applicant has not shown that the relevant public will perceive the green circle at issue as a traffic light. As EUIPO correctly observed, that green circle is a simple geometric shape which does not contain any other elements which would bring a traffic light to mind.

45      It follows from the foregoing that the applicant’s arguments concerning the green circle are manifestly unfounded.

46      As regards, lastly, the overall composition of the mark applied for, it must be stated that the mark applied for is composed of the word element ‘we care’, to which the figurative element, representing a green circle, has been added on the left. The Board of Appeal’s analysis in point 22 of the contested decision, according to which that combination does not present anything allowing the relevant consumers to see or remember it as an indication of the commercial origin of the goods and services concerned, must be endorsed. The mark applied for, viewed as a whole, does not have any peculiarity which could create an overall impression sufficiently far removed from that produced by the mere combination of the elements of which it is composed to confer on them added value.

47      Admittedly, as the applicant submits, pursuant to the judgment of 21 January 2010 in Audi v OHIM (C‑398/08 P, EU:C:2010:29) and to the case-law cited in paragraph 22 above, the laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to the relevant public the origin of the goods or services which it covers. However, it is clear from an examination of the mark applied for that it does not have any particular originality or trigger an interpretative effort on the part of the relevant public, such as to make it more than the sum of its parts.

48      It follows from the foregoing that the combination of the various components of the mark applied for enables the relevant public neither to identify the origin of the goods and services which it protects nor to distinguish them from those of other undertakings, and therefore it does not have any distinctive character.

49      Without there being any need to rule on the admissibility of the documents submitted by the applicant in this connection, it must be stated that the conclusion in the previous paragraph is not called into question by the argument that the relevant professional public expects the undertaking to comply with the certification requirements of the sector concerned, but not to show care, which will lead that public to think about the meaning of the mark applied for. First, it must be held that the fact that the relevant public is a specialist one cannot have a decisive influence on the legal criteria used to assess the distinctive character of a mark (judgment of 12 July 2012 in Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraphs 48 and 49). Secondly, as the applicant itself argues in the reply, the ‘we care’ element suggests to the relevant public that the applicant distinguishes itself from competitors by doing more than the minimum. That message is, it must be stated, all the more relevant having regard to the fact that the goods are mandatorily to be certified since, as the applicant itself points out, safety is of the utmost importance in its activity sector, in particular concerning fire prevention.

50      It follows from the foregoing that the applicant’s arguments concerning the combination of the elements in the mark applied for are manifestly unfounded.

51      The Board of Appeal therefore did not err in finding that the mark applied for was devoid of any distinctive character with regard to the goods and services concerned and that therefore it could not be registered.

 Infringement of EUIPO’s administrative practice

52      In the second part of its single plea, the applicant claims essentially that EUIPO infringed its administrative practice inasmuch as it had upheld applications for registration of other marks containing the sole word element ‘we care’, which is consequently sufficient to confer on them distinctive character.

53      EUIPO disputes the relevance of that line of argument.

54      The decisions concerning the registration of a sign as an EU trade mark which EUIPO takes under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of decisions of the Boards of Appeal must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice (judgments of 26 April 2007 in Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65, and 3 July 2013 in Warsteiner Brauerei Haus Cramer v OHIM — Stuffer (ALOHA 100% NATURAL), T‑243/12, not published, EU:T:2013:344, paragraph 43). Furthermore, according to settled case-law, EUIPO must, when examining an application for registration of an EU trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not. Nonetheless, the way in which the principles of equal treatment and sound administration are applied must be consistent with respect for legality. Consequently, 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. Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, 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 present case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (judgment of 27 February 2015 in Greenworld, T‑106/14, not published, EU:T:2015:123, paragraph 37 and the case-law cited; see also, to that effect, judgment of 10 March 2011 in Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 74 to 77).

55      It follows from all the above considerations that the Board of Appeal was fully justified in finding that, with regard to the goods and services concerned, the trade mark application in question was caught by the absolute ground for refusal set out in Article 7(1)(b) of Regulation No 207/2009. Accordingly, pursuant to the case-law cited in paragraph 54 above, that assessment cannot be called into question on the sole ground that it does not follow EUIPO’s previous practice.

 The registration by the South Korean Intellectual Property Office of the mark applied for

56      As regards, lastly, the third part of its single plea, the applicant argues, in support of the registration of the mark applied for, that the mark concerned has been registered by the South Korean Intellectual Property Office.

57      EUIPO disputes the relevance of that line of argument.

58      It must be recalled that, pursuant to settled case-law, the EU trade mark regime is an autonomous legal system which pursues objectives peculiar to it; it applies independently of any national system (judgments of 5 December 2000 in Messe München v OHIM (electronica), T‑32/00, EU:T:2000:283, paragraph 47, and 3 December 2015 in Infusion Brands v OHIM (DUALTOOLS), T‑648/14, not published, EU:T:2015:930, paragraph 36). Consequently, the registrability or protectability of a sign as an EU mark must be assessed by reference only to the relevant EU rules. Accordingly, EUIPO and, as the case may be, the European Union judicature are not bound by a decision given in a Member State, or indeed a third country, that the sign in question is registrable as a national mark (judgments of 27 February 2002 in Streamserve v OHIM (STREAMSERVE), T‑106/00, EU:T:2002:43, paragraph 47, and 3 December 2015 in DUALTOOLS, T‑648/14, not published, EU:T:2015:930, paragraph 36).

59      Consequently, the applicant’s argument based on the registration by the South Korean Intellectual Property Office of the mark applied for must be rejected.

60      It follows from the arguments above that the plea raised by the applicant in support of its action is manifestly lacking any foundation in law and that the action must be dismissed.

 Costs

61      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

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

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

1.      The action is dismissed.

2.      Beele Engineering BV shall pay the costs.

Luxembourg, 7 June 2016.

E. Coulon

      S. Frimodt Nielsen

Registrar

      President