In Case T-53/13, Vans Inc. applied for the Community trademark application for the figurative sign of a "wavy line" in Classes 18: ‘Leather and imitations of leather, and goods made of these materials; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery; wallets; bags; rucksacks; belt bags; briefcases; (school)bags for school; (school)bags for sport; beachbags; key rings; card holders; hip bags’; and 25: ‘Clothing, footwear, headgear; belts; gloves’.

 Both OHIM and the General Court rejected its registrability. In the first place, the mark applied for is devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009. In that regard, first, the goods covered by the mark applied for were aimed at the general public, which would pay an average degree of attention to them at the time of purchase. Secondly, that public would not meticulously analyse the characteristics of the mark applied for, but would recall only the concept of a wavy line, which is too vague to identify the goods as coming from a certain producer. Thirdly, graphic lines and stripes are commonly used on clothing, footwear and goods in Classes 18 and 25 for decorative purposes and therefore the relevant public would perceive the mark applied for as an element with an exclusively ornamental function. The General Court confirmed that the goods at issue constitute a homogenous category and that the examination of the distinctive character of the mark applied for which the Board of Appeal carried out makes it possible to explain its reasoning with regard to those goods and cannot lead to conclusions which differ depending upon the goods in question. In fact, the applicant itself implicitly admited, in its written pleadings, that there is a link between the goods in question, which gives rise to a homogenous category of goods, when it submits that the evidence of use provided in respect of footwear, in order to prove that the mark applied for has acquired distinctive character through use, may also be used in respect of the other goods in question, in so far as they are similar to footwear.

 In the second place, the existence of other earlier national or Community registrations is irrelevant in assessing the distinctive character of the mark at issue inasmuch as, first, the CTM system is autonomous and, secondly, the BoA is not bound by previous or erroneous decisions made by OHIM, since each case must be assessed on its own merits.

Lastly, in the third place, the applicant had not provided appropriate evidence to prove that a part of the relevant public would, because of the mark applied for, identify the goods covered by that mark and that it had thus acquired distinctive character through use in the European Union as a whole for the purposes of Article 7(3) of CTMR.  

In the present case, the applicant submitted as evidence intended to prove the distinctiveness acquired through use of the mark applied for an affidavit of its Vice President of Events, Promotions which shows that the sign applied for has been used since 1977 and states, inter alia, the turnover for 2011 in the Europe, Middle East and Africa region (EMEA); catalogues; advertising material; a copy of the cover of a book edited by the applicant, entitled Birth of Icons, which describes the sign at issue as one of the applicant’s most iconic emblems; a printout of its page on the website Facebook and a document containing the sales figures relating to 2010 and 2011 as well as a sales forecast for 2012. By contrast, the applicant had not provided any declaration from the relevant class of persons which makes it possible to establish that the sign in question was perceived by the relevant public as an indication of the commercial origin of the goods in question throughout the European Union.