UNOFFICIAL DOCUMENT FOR INFORMATION PURPOSES ONLY

DECISION

of the Second Board of Appeal

of 18 May 2018

In Case R 2193/2017-2

ERGOBIONIK GmbH
Hindenburgstraße 34 58636 Iserlohn Germany	Applicant / Appellant

represented by Patentanwälte Dr. Stark & Partner mbB, Moerser Straße 140, 47803 Krefeld, Germany

APPEAL relating to European Union trade mark application No 16 227 522

THE SECOND BOARD OF APPEAL

composed of A. Szanyi Felkl as a single Member having regard to Article 165(2) and (5) EUTMR, Article 36 EUTMDR and Article 13 of the Decision of the Presidium on the organisation of the Boards of Appeal as currently in force, and to the Fifth Board’s Resolution No 2014-1 of 2 February 2015 on decisions by a single Member

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 4 January 2017, ERGOBIONIK GmbH (‘the applicant’) sought to register the word mark

CARWORKS

as a European Union trade mark in respect of, inter alia, the following goods:

Class 2 - Paints; varnishes; lacquers; anti-rust preparations, wood preservatives; dyes; mordants; raw natural resins; metal in foil and powder form for use in painting, decorating, printing and art.

Class 12 - Vehicles; apparatus for locomotion by land.

2. On 22 September 2017, the examiner took a decision (‘the contested decision’) partially refusing the trade mark applied for, under Article 7(1)(b) and (c), in conjunction with Article 7(2) EUTMR with regard to the goods referred to in paragraph 1. The examiner based her decision on the following reasons in particular:

• The trade mark consists of the sign ‘CARWORKS’, which has the following meaning: ‘A car is a motor vehicle with room for a small number of passengers’. (Information from the online Collins English Dictionary retrieved on 9 February 2017 at https://www.collinsdictionary.com/dictionary/english/car). In German: ‘das auto, der Wagen, das Fahrzeug’. WORKS means ‘an act, deed, or proceeding; something that is in the process of being, or has been, done or performed; a thing to be done; what a person or thing has to do; a task to be carried out; a function to be served; of a thing, system, etc.: to perform a function, operate, esp. in a specified manner; of a plan, scheme, etc.: to have a specified outcome’ (Information from the online dictionary www.oed.com). In German: ‘die Arbeiten, die Leistung, der Betrieb, funktionieren’.

• The designation as a whole therefore refers to ‘Auto Arbeiten’ (= ‘car works’ in the language of the case).

• The expression ‘CARWORKS’ makes it immediately clear to consumers, without their having to reflect on it further, that the goods are intended for the care and repair of vehicles. Consequently, the trade mark conveys obvious and direct information about the nature, intended purpose and quality of the goods concerned.

• The applicant submits that ‘AUTO ARBEITEN’ (as a translation of ‘CARWORKS’) has no clear and unambiguous meaning. The Office does not agree with the claim that the translation is not incorrect in view of the dictionary references cited, since a translation is not mathematics, and must always be seen in the appropriate context, so that, depending on the context, the translation may well mean that the goods are intended for car care or for work on a car or car care and/or repair. Nevertheless, it is and remains a translation of the sign, which is not subject to examination. With regard to the English-speaking consumers of the Union, the English version alone is decisive for the examination of absolute grounds for refusal. The fact that the slogan has been translated into other versions does not necessarily result in ambiguity. Rather, it illustrates that one can play with language and that there is not only one ‘solution’, as is the case in mathematics, but that language provides several ‘solutions’, which do not change the meaning in the original language.

• The explanation of the translation does not constitute an inadmissible analysis: the expression is merely translated into the language of the proceedings. Of course, native (English) speakers perceive the term with the specified meaning without questioning individual meanings.

• As the trade mark has a clearly descriptive meaning in relation to the goods in Classes 2 and 12 in respect of which it was applied for, it will give the relevant public the impression that it is primarily descriptive, which rules out any assumption that the trade mark may be an indication of origin.

• Of the earlier registrations cited by the applicant, a large proportion were already registered more than five years ago. In the meantime, the case-law and the associated registration practice have changed.

Grounds of appeal

3. The applicant filed a notice of appeal against that decision on 10 October 2017, and submitted the following grounds on 22 January 2018:

• ‘CARWORKS’ is not a common German or foreign language word, so there is no real indication as to why the term ‘CARWORKS’ should be devoid of any distinctive character.

• ‘Manual work’ and ‘gardening work’ both exist. However, ‘manual work’ refers to work done by hand, and ‘gardening work’ is work in the garden, not on the garden.

• The word ‘WORKS’ has a vague meaning. That is why it was also registered as a European Union trade mark in 2008 (No 6 231 005).

• ‘CARWORKS’ is not only formed contrary to linguistic rules and is therefore a lexical invention, it is also linguistically unusual. The term cannot be found in dictionaries. Even research on the English Google website did not produce any results that would show the currency of a descriptive use in this language area.

• The specific combination of characters applied for is written completely in capital letters. This is contrary to linguistic rules and is an indicator of protectability. Due to the capitalisation, the sign is understood and regarded exclusively as a trade mark.

• Combinations with ‘WORKS’ have often been considered eligible for protection by the Office in the recent past: cardWorks, ProWorks, FINE WINE WORKS, Beauty Works Professional, CareWorks, Dynamic Works, MoonWorks, CarbonWorks, wichtel-works, SLEEP WORKS, Nitro Works, IRON WORKS, BIG WORKS, POWER WORKS, KNIT WORKS, UNION WORKS, BOARD WORKS, BODY WORKS, SOHO WORKS, WOOD WORKS, DESIGN WORKS, FANTASIA WORKS, FLAVOR WORKS and Particle Works.

• In the last eighteen months alone, the following European Union trade marks have been registered, all of which are even less ‘trade mark-like’ than the present one due to their specific spelling: Particle Works, CarbonWorks, DYNAMIC WORKS., SOHO WORKS and BODY WORKS.

• The earlier registrations do not justify a claim for registration but, according to settled case-law, they are to be regarded as a strong indicator of the affirmation of protectability.

• There is no clear reference to the goods claimed. The contested decision gives no reason why ‘CARWORKS’ is perceived as a description indication for the goods ‘metal in foil and powder form for use in painting, decorating, printing and art’, which are not undertaken with respect to cars. Nor are ‘paints; wood preservatives; varnishes; dyes; mordants; raw natural resins’ associated with cars or used in work on cars.

• ‘Vehicles; apparatus for locomotion by land’ are not goods that are used for work on cars either. Thus, the only goods for which the objection would theoretically be possible are ‘lacquers; anti-rust preparations’.

• ‘CARWORKS’ has no clear meaning.

• In the alternative, it is requested that oral proceedings be conducted.

Reasons

4. All references made in this decision should be seen as references to the EUTMR (EU) No 2017/1001 (OJ 2017 L 154, p. 1), codifying Regulation (EC) No 207/2009 as amended, unless specifically stated otherwise in this decision.

5. The admissible appeal is unfounded. As correctly established by the examiner, the sign applied for is ineligible for protection pursuant to Article 7(1)(b) and (c) EUTMR in respect of the goods that are the subject of these proceedings. The grounds for refusal result from the meaning in English of the sign claimed (Article 7(2) EUTMR).

Article 7(1)(c) EUTMR

1. Article 7(1)(c) EUTMR provides that registration is to be refused in respect of descriptive marks, that is to say trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service. However, Article 7(1)(c) EUTMR pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is applied for may be freely used by all. This provision therefore prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks (04/05/1999, C‑108/97 & C‑109/97, Chiemsee, EU:C:1999:230, § 24‑25).

6. Examination regarding absolute grounds for refusal must be stringent and full, in order to prevent trade marks from being improperly registered and, for reasons of legal certainty and good administration, to ensure that trade marks whose use could successfully be challenged before the courts are not registered (06/05/2003, C‑104/01, Libertel, EU:C:2003:244, § 59; 21/10/2004, C‑64/02 P, Das Prinzip der Bequemlichkeit, EU:C:2004:645, § 45).

6. Pursuant to Article 7(2) EUTMR, the provisions of Article 7(1) EUTMR apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union. Therefore, a European Union trade mark is to be refused registration where it is descriptive in just one of the official languages of the European Union (19/09/2002, C‑104/00 P, Companyline, EU:C:2002:506, § 40).

6. Only indications that are directly descriptive are excluded from registration pursuant to Article 7(1)(c) EUTMR. In this respect, the sign in question does not necessarily already have to be known as a descriptive indication; it is instead enough if this can reasonably be expected in the future. Therefore, the examiner also does not have to demonstrate that the sign applied for is commonly used in business communications and, in particular, in advertising (21/10/2004, C‑64/02 P, Das Prinzip der Bequemlichkeit, EU:C:2004:645, § 46).

6. Likewise, a sign must be refused registration if at least one of its possible meanings designates a characteristic of the goods or services concerned (04/05/1999, C‑108/97 & C‑109/97, Chiemsee, EU:C:1999:230, § 30-31; 23/10/2003, C‑191/01 P, Doublemint, EU:C:2003:579, § 32).

6. The examination must be based on the overall perception of the trade mark by the relevant public. In the case of a word mark composed of a number of elements, account has to be taken of the descriptive character of the trade mark as a whole and not merely of the descriptive meaning of the individual components. The mere bringing together of a number of descriptive terms remains essentially descriptive. The only exception arises when the unusual nature of the word combination creates an overall impression which is sufficiently far removed from that produced by the combination of meanings lent by the elements of which it is composed, with the result that the meaning of the overall term created is more than the sum of its parts (12/02/2004, C‑363/99, Postkantoor, EU:C:2004:86, § 104; 12/02/2004, C‑265/00, Biomild, EU:C:2004:87, § 37, 43). Merely bringing a number of descriptive elements together without introducing any unusual variations, in particular as to syntax or meaning, cannot result in anything other than a mark that is descriptive as a whole (12/02/2004, C‑265/00, Biomild, EU:C:2004:87, § 39).

6. A trade mark consisting of a neologism or a word composed of elements, each of which is descriptive of characteristics of the goods or services claimed, is itself descriptive of those characteristics for the purposes of Article 7(1)(c) EUTMR, unless there is a perceptible difference between the neologism or the word and the mere sum of its parts. That assumes that, because of the unusual nature of the combination in relation to the goods or services specified, the neologism or word creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, with the result that the word is more than the sum of its parts. In that connection, an analysis of the term in question in the light of the relevant lexical and grammatical rules is also useful (07/07/2011, T‑208/10, TRUEWHITE, EU:T:2011:340, § 16 and the case-law cited therein).

6. Refusal of a trade mark on the grounds that it is descriptive is justified when, from the point of view of the public addressed, there is a sufficiently clear and specific relationship between the word sign applied for and the goods or services claimed (27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 44; 30/11/2004, T‑173/03, Nurseryroom, EU:T:2004:347, § 20; 12/01/2005, T‑367/02 - T‑369/02, SnTEM, SnPUR & SnMIX, EU:T:2005:3, § 21).

6. The descriptive character of a trade mark 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 perception of the relevant public, which consists of the consumers of these goods or the recipients of these services (02/04/2008, T‑181/07, Steadycontrol, EU:T:2008:86, § 38; 21/05/2008, T‑329/06, E, EU:T:2008:161, § 23).

6. Where the same ground of refusal of the sign in question is given for a category or group of goods or services, the Office may use only general reasoning for all of the goods and services concerned in that category or group (15/02/2007, C‑239/05, The Kitchen Company, EU:C:2007:99, § 37). However, such a power extends only to goods and services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services. The mere fact that the goods and services concerned are within the same class is not sufficient for a finding that such homogeneity exists, as those classes often contain a large variety of goods and services which are not necessarily interlinked in a sufficiently direct and specific way (18/03/2010, C‑282/09 P, P@yweb card / Payweb card, EU:C:2010:153, § 40; 17/10/2013, C‑597/12 P, Zebexir, EU:C:2013:672, § 27).

6. As correctly stated by the examiner and not questioned by the applicant, some of the goods and services that are the subject of these proceedings are directed at the general consumer and some at professional circles. As the sign applied for consists of an English word, the understanding of the English-speaking public is decisive (24/04/2012, T‑328/11, EcoPerfect, EU:T:2012:197, § 20). The level of attention of the relevant public will be high with regard to the specialist public. In the case of the end consumers, by contrast, the level of attention will be more or less high depending on how expensive and complex the goods in question are.

6. The sign applied for is made up of the English terms ‘CAR’ and ‘WORKS’, which can be found in dictionaries. The meaning of ‘CAR’ (in the language of the case) is ‘das Auto, der Wagen, das Fahrzeug’ and was also not objected to by the applicant. By contrast, ‘WORKS’ is, inter alia, the plural form of the noun ‘work’, and therefore corresponds to ‘Arbeiten’ in the language of the case. In its entirety, the sign applied for thus means ‘Auto Arbeiten’ (= ‘car works’ in the language of the case).

6. According to the applicant, ‘WORKS’ has a vague meaning and can therefore be registered in isolation, which has also been confirmed by the registration of European Union trade mark No 6 231 005. However, the Board cannot follow this view, since ‘WORKS’ was registered in 2008 for very specific goods that have nothing to do with ‘works’, namely: ‘carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings (non-textile); carpet tiles’ in Class 27. It cannot be concluded from this that ‘WORKS’ has a vague meaning and/or would also be considered registrable for other goods or services.

6. In addition, the applicant argues that ‘CARWORKS’ as ‘Auto Arbeiten’ (= ‘car works’ in the language of the case) is a linguistically unusual combination because combinations such as ‘Handarbeiten (‘manual work’) or ‘Gartenarbeiten (‘gardening work’) have a completely different meaning. However, these expressions are not comparable with the present sign, since, in contrast to ‘CARWORKS’, these are terms in the German language. That is to say, the existence of grounds for refusal must be assessed in relation to the trade mark application, and not a possible translation of it into the language of the case. In the view of the Board, ‘Arbeiten’ (‘works’) as the plural form of ‘Arbeit (‘work’) only represents an approximate translation of ‘works’ anyway, insofar as the term ‘works’ is much more widely used in English than the plural noun ‘Arbeiten’ in the German-speaking world.

6. The applicant claims that it carried out a search for the term ‘CARWORKS’ on the English Google website (presumably www.google.co.uk) and was unable to establish that the term was in use in English. First of all, it should be emphasised that the question of whether or not ‘CARWORKS’ is already used as a term in connection with the goods claimed on the respective market can remain unanswered. This is because the application of Article 7(1)(c) EUTMR does not depend on there being a real, current or serious need to leave a sign or indication free (22/11/2011, T‑290/10, Tennis warehouse, EU:T:2011:684, § 36; 12/04/2011, T‑28/10, Euro automatic payment, EU:T:2011:158, § 44; 27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 39). The need to keep the sign freely available therefore does not need to be examined or even proved in order to refuse a European Union trade mark application for being descriptive or devoid of distinctive character. As the wording of Article 7(1)(c) EUTMR states, it is sufficient if the sign may be used as a descriptive indication. What is relevant is the possible meaning, and not the question of whether the expression has become part of customary linguistic usage for the goods that are the subject of these proceedings. It is therefore sufficient if it is possible, as is clearly the case here, that the public will recognise the meaning of the sign as an indication that the goods are products which are used for punching (24/04/2012, T‑328/11, EcoPerfect, EU:T:2012:197, § 29). Even if the designation ‘CARWORKS’ is not currently used in a descriptive manner in relation to the goods at issue, it at least seems conceivable, possible and reasonable from the point of view of the targeted public that the sign may be used in connection with these goods in the future. This is sufficient for the finding of a ground for refusal pursuant to Article 7(1)(c) EUTMR (see, by way of analogy, 04/05/1999, C‑108/97 & C‑109/97, Chiemsee, EU:C:1999:230).

6. For the sake of completeness, however, the Board conducted the same search as the applicant on www.google.co.uk and concluded that, contrary to the result mentioned by the applicant, the term ‘CARWORKS’ is a common and widespread term in the English-speaking world for garages:

(search conducted on 17 May 2018).

6. Furthermore, the applicant cites the fact that the application appears in capital letters contrary to linguistic rules and therefore has a clear effect as a trade mark. However, this argument does not hold either, since the contested application was filed as a word mark. Whether it is in upper or lower case is therefore irrelevant, since the protection of a word mark does not extend to particular graphic or design aspects, but exclusively to the respective word. Nothing prevents the proprietor of a word mark that was fully capitalised in the application to design it on the market in lower-case letters. Moreover, the use of capital letters in trade marks is anything but unusual, especially for advertising slogans.

6. As already stated by the examiner, the refused goods are goods that are either used to carry out ‘works’, i.e. care, repair or improvement, on vehicles (‘cars’), or are themselves maintained, repaired or improved by such car works, because these goods are vehicles.

6. The Board draws attention to the fact that in particular the goods in Class 2 can be used for car works within the context of vehicle tuning. ‘Tuning’ refers to individual, e.g. visual changes and modifications to vehicles. These include, for example, changes to the shape and colour of the body, the addition of add-on parts and improvements to the vehicle’s aerodynamics. In the view of the Board, goods such as ‘paints; varnishes; lacquers; anti-rust preparations, wood preservatives; dyes; mordants; raw natural resins; metal in foil and powder form for use in painting, decorating, printing and art’ can be used for such purposes. Consequently, the applicant’s objection that those goods would not be associated with cars is not valid.

6. In summary, the expression ‘CARWORKS’ immediately conveys obvious and direct information to the targeted English-speaking specialist public about the nature, intended purpose and quality of the goods that are the subject of these proceedings. There is also a sufficiently direct and specific relationship between the wording of the sign applied for and the goods in respect of which registration is sought (20/07/2004, T‑311/02, Limo, EU:T:2004:245, § 30). The question of whether the public could also assign other meanings to the term ‘CARWORKS’ can therefore remain unanswered. As already emphasised by the examiner, a sign is to be refused registration if at least one of its possible meanings designates a characteristic of the goods concerned (23/10/2003, C‑191/01 P, Doublemint, EU:C:2003:579, § 32; 21/01/2009, T‑296/07, PharmaCheck, EU:T:2009:12, § 43). Therefore, the trade mark applied for cannot be registered owing to the ground for refusal of descriptive indications pursuant to Article 7(1)(c) EUTMR.

Article 7(1)(b) EUTMR

6. Each of the grounds for refusal listed in Article 7(1) EUTMR is independent of the others and calls for separate examination (see 21/10/2004, C‑64/02 P, Das Prinzip der Bequemlichkeit, EU:C:2004:645, § 39; 15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 29). Furthermore, those grounds for refusal must be interpreted in the light of the public interest underlying each of them. The public interest taken into account in the examination of each of those grounds for refusal may, or even must, reflect different considerations, depending upon which ground for refusal is at issue (29/04/2004, C‑456/01 P & C‑457/01 P, Tabs (3D.), EU:C:2004:258, § 45‑46; 02/07/2002, T‑323/00, SAT.2, EU:T:2002:172, § 25).

6. The absolute grounds for refusal of a lack of distinctive character and the characteristics of descriptive and usual indications each have their own scope of application and are neither mutually dependent nor mutually exclusive (29/04/2004, C‑456/01 P & C‑457/01 P, Tabs, EU:C:2004:258, § 45‑46). Even though the existence of just one ground for refusal is sufficient, they may also be examined cumulatively.

6. Pursuant to Article 7(1)(b) EUTMR and settled case-law, European Union trade marks that are devoid of distinctive character are not capable of identifying the goods and services specifically applied for as originating from a particular undertaking, and thus of distinguishing those goods and services from those of other undertakings (19/09/2012, T‑326/10, T‑327/10, T‑328/10, T‑329/10, T‑26/11, T‑31/11, T‑50/11 & T‑231/11, Stoffmuster, EU:T:2012:436, § 41 et seq.).

6. The distinctive character of a trade mark must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by the relevant public.

6. In the context of the goods that are the subject of these proceedings, the word mark ‘CARWORKS’ applied for is purely descriptive. It amounts to nothing more than the simple message that the goods that are the subject of these proceedings are either used (with regard to the goods in Class 2) to carry out works, i.e. care, repair or improvement, on vehicles (‘cars’), or themselves (with regard to the goods in Class 12) are maintained, repaired or improved by such car work, because these goods are vehicles. In connection with the refused goods, this statement is understood as merely indicating an essential characteristic thereof. The trade mark applied for is therefore not capable of performing its function as a distinctive sign. The sign does not enable the relevant public, when purchasing the goods concerned at a later date, to make their decision independently of whether they had a good or bad experience when they first purchased them (cf., in relation to this criterion, 21/01/2011, T‑310/08, executive edition, EU:T:2011:16, § 23). It is therefore not distinctive.

6. The sign also lacks any other element, for example of a graphical nature, which could afford it distinctive character beyond its obviously descriptive character in the perception of the targeted public.

6. For these reasons, the trade mark also cannot be registered owing to the ground for refusal under Article 7(1)(b) EUTMR.

The prior registrations cited by the applicant

6. In the grounds of appeal, the applicant claims that the following European Union trade marks have been registered: cardWorks, ProWorks, FINE WINE WORKS, Beauty Works Professional, CareWorks, Dynamic Works, MoonWorks, CarbonWorks, wichtel-works, SLEEP WORKS, Nitro Works, IRON WORKS, BIG WORKS, POWER WORKS, KNIT WORKS, UNION WORKS, BOARD WORKS, BODY WORKS, SOHO WORKS, WOOD WORKS, DESIGN WORKS, FANTASIA WORKS, FLAVOR WORKS and Particle Works.

6. In this respect, it should be emphasised that those decisions are not the subject of the present proceedings. Existing registrations of possibly comparable marks are only one factor which may be taken into account in connection with the registration, without, however, being given decisive weight (cf. 21/04/2004, T‑127/02, ECA, EU:T:2004:110, § 70‑71; 25/10/2007, C‑238/06 P, Plastikflaschenform, EU:C:2007:635, § 72‑73; 09/07/2008, T‑304/06, Mozart, EU:T:2008:268, § 45). The fact that similar marks have been registered is only indirectly relevant with respect to the harmonised trade mark law of the European Union. Fundamentally, within the scope of harmonised European trade mark law, and even more so within the Office’s examination practice, attempts should be made to ensure that the same results are reached in comparable cases. However, decisions concerning registrability of a sign as a European Union trade mark are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of the registration must be assessed solely on the basis of the EUTMR and not on the basis of a previous decision-making practice. The argument regarding the registrability of other trade marks is only relevant if it contains grounds that call into question the examiner’s assessment, which is not the case here however (12/02/2009, C‑39/08 & C‑43/08, Volks.Handy, EU:C:2009:91; 15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 47, 51; 06/03/2007, T‑230/05, Golf USA, EU:T:2007:76, § 57‑64; 06/07/2011, T‑258/09, Betwin, EU:T:2011:329, § 76‑84; 27/02/2015, T‑106/14, Greenworld, EU:T:2015:123, § 36). Furthermore, the applicant cannot rely, to its advantage, on a decision-making practice of the Office that runs counter to the requirements of the European Union Trade Mark Regulation or would lead to an unlawful decision (12/02/2009, C‑39/08 & C‑43/08, Volks.Handy, EU:C:2009:91, § 13‑19; 15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 47, 51; 06/03/2007, T‑230/05, Golf USA, EU:T:2007:76, § 57‑64; 06/07/2011, T‑258/09, Betwin, EU:T:2011:329, § 76‑84).

6. Furthermore, the principle of equal treatment only applies at the level of the same decision-making body. The Boards of Appeal cannot be bound by decisions adopted by the examiners, but, on the contrary, they have the legal duty to review such decisions. (09/11/2016, T‑290/15, SMARTER TRAVEL, EU:T:2016:651, § 73; 19/01/2012, C‑53/11, R10, EU:C:2012:27, § 57). It follows that the Board cannot be bound by decisions of the examiners that were not contested (22/05/2014, T‑228/13, EXACT, EU:T:2014:272, § 48). No reasons are given in decisions by an examiner to register a trade mark application, so that it is impossible to make a meaningful comparison between the details with regard to the earlier registrations claimed and the circumstances of the application in question. Finally, it would be contrary to the Board of Appeal’s purpose, as defined in recital 30 and in Articles 66‑71 EUTMR, for its jurisdiction to be restricted by the requirement to respect the decisions at first instance (28/06/2017, T‑479/16, AROMASENSATIONS, EU:T:2017:441, § 42).

6. For the sake of completeness, the Board points out that the applicant submitted 24 examples of registered European Union trade marks that have in common with the present sign and with each other the word element ‘works’, but which cannot be seen as equivalent to ‘CARWORKS’ because of their other elements. Specifically, in the view of the Board, the following differences exist between the prior registrations mentioned and the sign applied for:

Previously registered European Union trade mark	Registration number	Differences from ‘CARWORKS’
cardWorks	12 041 828	The meaning of ‘card’ is not as unambiguous as ‘car’. Various goods and services (Classes 9, 10, 42).
ProWorks	12 896 569	‘Pro’ possibly describes the quality, but not the nature of the use of the goods. These are highly specialised goods in Classes 7, 8 and 12, particularly in connection with motorcycles and snowmobiles.
FINE WINE WORKS	12 131 926	‘Works’ has no clear meaning in connection with ‘FINE WINE’. Various goods and services (Classes 16, 35, 36, 41).
Beauty Works Professional	12 900 072	‘Works’ has no clear meaning in connection with ‘BEAUTY’. Various goods and services (Classes 3, 35, 41).
CareWorks	11 035 151	‘Works’ has no clear meaning in connection with ‘CARE’. Various goods and services (Classes 9, 35, 42).
DYNAMIC WORKS	15 045 305	‘Dynamic’ describes the quality, but not the nature of the use of the goods.
MoonWorks	14 455 869	‘Works’ has no clear meaning in connection with ‘Moon’. Various goods (Classes 14, 18, 25).
CarbonWorks	15 834 336	The sign has no clear meaning in connection with the goods and services. Various goods and services (Classes 9, 25, 41).
wichtel-works	11 371 903	‘Wichtel’ is a German word, not an English one. Various goods (Classes 6, 11, 28).
SLEEP WORKS	13 687 892	‘Works’ could be meant as a verb here. As a noun, it has no meaning in relation to ‘Sleep’. Various goods (Class 3).
Nitro Works	13 149 034	‘Works’ could be meant as a verb here. As a noun, it has no meaning in relation to ‘Nitro’. Various goods (Classes 5, 29, 30).
IRON WORKS	12 972 154	‘Works’ could be meant as a verb here. Various goods (Classes 9, 15).
BIG WORKS	12 729 299	‘Big’ does not describes the nature of the use of the goods. Various goods (Class 28).
POWER WORKS	12 749 156	‘Works’ could be meant as a verb here. Various goods and services (Classes 9, 35).
KNIT WORKS	13 717 021	Various goods (Class 25).
UNION WORKS	10 976 298	The sign has no clear meaning in connection with the goods and services. Various goods (Class 25).
BOARD WORKS	11 523 651	The sign has no clear meaning in connection with the goods and services. Various goods and services (Classes 9, 37, 42).
BODY WORKS	14 589 601	‘Works’ has no clear meaning in connection with ‘Body’. Various goods (Classes 7, 25, 28).
SOHO WORKS	14 698 328	‘SOHO’ is potentially a geographical designation. Various services (Classes 35, 36, 41, 43).
WOOD WORKS	11 711 264	The sign has no clear meaning in connection with the goods and services. Various goods and services (Classes 9, 35, 42).
DESIGN WORKS	12 170 247	‘Works’ could be meant as a verb here. Various goods (Class 3).
FANTASIA WORKS	14 359 566	‘Works’ could be meant as a verb here. Various goods and services (Classes 6, 9, 19, 20, 28, 37, 41, 42).
FLAVOR WORKS	11 618 477	‘Works’ could be meant as a verb here. Various goods (Class 32).
Particle Works	16 157 786	‘Works’ has no clear meaning in connection with ‘Particle’. Various goods (Classes 1, 5).

In any event therefore, the signs are not comparable.

6. For the reasons mentioned above, the appeal remains unsuccessful.

6. With regard to the alternative request for oral proceedings, it is the view of the Board that they would not be expedient (Article 96(1) EUTMR), since it possesses sufficient information to make a decision in the matter and the applicant has not stated what matters relevant to a decision it intends to put forward at the oral proceedings which it cannot introduce in written proceedings (19/05/2010, T‑108/09, Memory, EU:T:2010:213, § 47).

Order

On those grounds,

THE BOARD

hereby:

Dismisses the appeal.

Signed A. Szanyi Felkl

Registrar: Signed p.p. I. Romero Conrad