DECISION

of the Second Board of Appeal

of 26 August 2019

In Case R 853/2019-2

Trading Point Holdings Limited
12 Richard & Verengaria Street, Araouzos Castle Court, 3rd Floor CY-3042 Limassol Cyprus	Applicant / Appellant

represented by Beck Greener, Fulwood House 12 Fulwood Place, WC1V 6HR, London, United Kingdom

APPEAL relating to European Union trade mark application No 17 958 710

The Second Board of Appeal

composed of S. Martin as a single Member having regard to Article 165(2) and (5) EUTMR, Article 36 EUTMDR and Article 7 of the Decision of the Presidium on the organisation of the Boards of Appeal as currently in force

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 18 September 2018, Trading Point Holdings Limited (‘the applicant’) claiming the priority of the UK trade mark No 3 306 502 with a filing date of 25 April 2018 and a registration date of 30 November 2018, sought to register the word mark

TRADING.COM

for the following list of services:

Class 36 - Insurance; financial affairs; monetary affairs; real estate affairs; commodity trading and exchanges services; integration futures exchange services; international stock exchange price quotation; international financial exchange and monetary services; foreign currency exchange and advice; financial clearing house services; providing access to financial markets, stock markets, currency markets and commodities markets; financial brokerage services; financial and commodity trading services; providing trading services relating to financial instruments; financial services, namely, investment fund transfer and transaction services; financial trading services; executing trades and transactions on financial and commodities markets; holding money and funds for others; trustee services; providing loans; escrow services; currency exchange services; payment services; credit card services; debit card services; charge card services; prepaid card services; electronic credit and debit transactions; electronic funds transfer; provision of cards with computer chips and electronic cash services; cash disbursement; cash replacement; electronic cash transactions; cheque verification, cheque cashing; electronic funds transfers; stock exchange services; deposit access and automated teller machine services; payment processing services; transaction authentication and verification services; cash based foreign exchange services; advice, assistance, information, analysis and consultation services in the fields of finance, financial trading, commodities trading, banking, insurance, money, commodities trading, currency trading, stocks and shares; providing financial information on bonds, warrant bonds, commercial sales, and exchange and investment trusts; investment services; money lending services; fund raising services; loan services; mortgage services; information, advice and assistance relating to all the aforesaid; including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices;

Class 41 - Education; providing of training; entertainment; providing education, entertainment and music; providing education and training in the fields of finance and financial trading; sporting and cultural activities; Internet, online, television, radio, musical entertainment and education services; presentation of radio, television and Internet programmes; entertainment services by providing non-downloadable playback of audio, visual and audio-visual recordings and content including via global communications networks; providing non-downloadable music, audio, visual and audio-visual recordings and content; organising and operating games and competitions; betting, gambling, gaming and lottery services; organising and operating educational and entertainment shows, talent shows and fashion shows; conducting auditions; arranging contests; publishing; music publishing; music mixing; production of music, films and of recordings and of audio, visual and audio-visual content; direction of music, films and of performances; organising and operating award schemes and ceremonies including in the fields of education, music and entertainment; organising and conducting parties, festivals, ceremonies, entertainment events and educational events; performances and live performances; music services; music group services; musical, radio, dramatic and television entertainment; disc jockey services; photography services and photographic syndication services; photographic reporting; news and current events reporting and syndication; educational and entertainment events ticket reservation services; advice, information and assistance relating to all the aforesaid, including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices.

2. On 7 January 2019, the applicant asked to delete the term ‘providing access to financial markets, stock markets, currency markets and commodities markets’ from the list of services. On 8 January 2019, the Office amended the list of services accordingly.

3. The applicant maintained its request for registration notwithstanding the partial objections raised by the examiner.

4. By letter of 14 January 2019, the applicant stated that it ‘would limit the Class 36 specification as follows if it assisted in overcoming the objection:

‘Providing access to financial markets, stock markets, currency markets and commodities markets; holding money and funds for others; transaction authentication and verification services; information, advices and assistance relating to all the aforesaid.’

5. On 28 February 2019, the examiner took a decision (‘the contested decision’) partially refusing the trade mark applied for under Article 7(1)(b) and (c) EUTMR in conjunction with Article 7(2) EUTMR with regard to the following services:

Class 36 - Insurance; financial affairs; monetary affairs; real estate affairs; commodity trading and exchanges services; integration futures exchange services; international stock exchange price quotation; international financial exchange and monetary services; foreign currency exchange and advice; financial clearing house services; providing access to financial markets, stock markets, currency markets and commodities markets; financial brokerage services; financial and commodity trading services; providing trading services relating to financial instruments; financial services, namely, investment fund transfer and transaction services; financial trading services; executing trades and transactions on financial and commodities markets; holding money and funds for others; trustee services; providing loans; escrow services; currency exchange services; payment services; credit card services; debit card services; charge card services; prepaid card services; electronic credit and debit transactions; electronic funds transfer; provision of cards with computer chips and electronic cash services; cash disbursement; cash replacement; electronic cash transactions; cheque verification, cheque cashing; electronic funds transfers; stock exchange services; deposit access and automated teller machine services; payment processing services; transaction authentication and verification services; cash based foreign exchange services; advice, assistance, information, analysis and consultation services in the fields of finance, financial trading, commodities trading, banking, insurance, money, commodities trading, currency trading, stocks and shares; providing financial information on bonds, warrant bonds, commercial sales, and exchange and investment trusts; investment services; money lending services; fund raising services; loan services; mortgage services; information, advice and assistance relating to all the aforesaid; including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices;

Class 41 - Education; providing of training; providing education, providing education and training in the fields of finance and financial trading; Internet, online and education services; organising and operating games and competitions; betting, gambling, gaming and lottery services; organising and operating educational shows; conducting auditions; arranging contests; news and current events reporting and syndication; educational and entertainment events ticket reservation services; advice, information and assistance relating to all the aforesaid, including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices.

The examiner also rejected the limitation request. The decision was based on the following main findings:

• Since the request for limitation of the services is asked for only in case it helps to overcome the objection, it is invalid. Limitation requests must be unconditional. In any case the suggested limitation would not change the outcome of the case as the reasons for refusal of the sign would remain valid even for the modified list.

• The relevant English-speaking consumer would perceive the sign in relation to the objected services with the following meaning: an internet page for buying or selling securities or commodities to make quick profits.

• Thereby, the sign provides information regarding the services the applicant offers. It describes that the applicant hosts a website where the users can deal with various financial services related to making profits. The term ‘trading’ can include various financial services, such as investing, currency exchange and commodity trading and exchanging. The term describes the purpose of the services, which is to offer the users a platform to perform actions related to trading. The term trading can also refer to services which give more specific information about financial actions, such as providing education and trading-related news. Therefore, the sign describes the kind and the intended purpose of the services in question. The objected services in Class 36 are directly related to financial services and the objected services in Class 41 are related to specific information about financial actions, such as providing education and trading-related news.

• Contrary to the applicant’s claim the word ‘trading’ is not nebulous and unclear. In the area of financial services it has a clear and precise meaning as relating to buying and selling securities or commodities.

6. On 16 April 2019, the applicant filed an appeal against the contested decision, requesting that the decision be partially set aside, namely to the extent that the examiner rejected the trade mark applied for with regard to the services listed in paragraph 5.

7. On 25 June 2019 the applicant requested to ‘limit the Class 36 services of the application to the following: providing access to financial markets, stock markets, currency markets and commodities markets; holding money and funds for others; transaction authentication and verification services; information, advice and assistance related to all the aforesaid.’ Consecutively, the applicant listed the remaining services.

8. The statement of grounds of the appeal was received on 26 June 2019.

Grounds of appeal

9. The arguments raised in the statement of grounds may be summarised as follows:

• The examiner was wrong in considering the elements of the mark in isolation. It is the totality of the mark which needs to be examined.

• It is self-evident that the sign ‘TRADING.COM’ is not apt to describe any relevant feature of the services in question. This arises from the fact that the sign is incapable of acting as a meaningful adjective or as part of a meaningful adjectival clause. There is no such service as a ‘trading.com financial market access service’ or a ‘trading.com transaction authentication service’.

• No trader would find it necessary, convenient or even possible to describe its services or any feature of those services, with the term ‘TRADING.COM’ since this term has no meaning.

• It is accepted that the word ‘TRADING’ is apt in native English speaking territories to indicate the services of trading in financial instruments for others, for instance, an investment business where an agent is paid by its principal to select and trade on the former’s behalf in shares and equities. However, such services are not within the scope of the Class 36 services now listed in the application as a result of the amendment made on 25 June 2019.

• The applicant does not offer ‘trading’ services; it does not buy and sell or trade in securities for others. It would not be possible for the public to know from the sign ‘TRADING’ immediately and without further thought what the nature of those services might be or any characteristic they might have.

• That the sign could suggest that the business whose services it designates might be somehow related to a trade in financial instruments, as the examiner proposed, is insufficient for Article 7(1)(c) and (b) EUTMR to apply. The immediate and direct link with the services applied for is missing. The same applies, a fortiori, to the sign put forward for registration, namely ‘TRADING.COM’.

• The examiner attempted to support its argument generally with Internet print-outs of third party signs including ‘DAYTRADING.COM’, ‘TOPPTRADING.COM’, ‘DEMOTRADING.COM’ and ‘GFX-TRADING.COM’. These references are not relevant to the point at issue.

• First, and most obviously, they are not uses of the sign in the application. Second, in each case it is noteworthy that the examples listed by the examiner are themselves unique, distinctive signs, used and presented as such.

• Similar objections to the ones of the examiner were raised by the UKIPO examiner with regard to the applicant’s corresponding UK application ‘TRADING.COM’. After an oral hearing before a more senior UKIPO examiner the objections were dropped and the trade mark was registered as applied for.

Reasons

10. 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.

11. The appeal complies with Articles 66, 67 and 68(1) EUTMR and is, therefore, admissible. However, the appeal is not well founded. The trade mark application has to be rejected for the services at issue under Article 7(1)(b) and (c) EUTMR in conjunction with Article 7(2) EUTMR (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875 ; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614; 10/09/2001, R 638/2000-4, BUY.COM; 11/07/2001, R 989/2000-3, deal4free.com; 29/06/2015, R 2991/2014-5, EZtrade.COM; 19/08/1999, R 77/1999-2, WWW.PRIMEBROOKER.COM; 18/04/2013, R 778/2012-2, SECURETRADING; 26/09/2012, R 756/2012-4, FX Trading24; 11/06/2008, R 512/2008-2, END-TO-END TRADING SOLUTIONS; 31/07/2002, R 332/2000-2, THE FUTURE OF TRADING).

Limitation

12. According to Article 27(5) EUTMDR the Board of Appeal shall at the latest in its decision on the appeal decide on requests for restriction or partial surrender.

13. According to Article 49 EUTMR, the applicant may at any time restrict the list of goods or services of its application. By request of 25 June 2019, the applicant asked to delete the following services form the list of services:

Class 36 - providing access to financial markets, stock markets, currency markets and commodities markets; holding money and funds for others; transaction authentication and verification services; information, advice and assistance related to all the aforesaid.

14. Insofar as the applicant requested the deletion of the services ‘providing access to financial markets, stock markets, currency markets and commodities markets’, it needs to be pointed out that these services were no longer part of the claimed list of services at the time of the limitation request because they were already deleted from the list of services following the applicant’s respective limitation request of 7 January 2019. Therefore, in this respect the limitation request is devoid of purpose. With regard to the services ‘holding money and funds for others; transaction authentication and verification services; information, advice and assistance related to all the aforesaid’, the limitation request is admissible. The Board will, therefore, base its decision on the list of services as amended on 7 January 2019 and 25 June 2019.

Article 7(1)(c) EUTMR

15. Article 7(1)(c) EUTMR excludes 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 services, or other characteristics of the goods or service, from registration.

16. Article 7(1)(c) EUTMR pursues an aim in the public interest, namely that descriptive signs or indications relating to the characteristics of the goods or services in respect of which registration is sought may be freely used by all. That provision, therefore, prevents such signs or indications from being reserved to one undertaking alone because they have been registered as trade marks (12/02/2004, C-265/00, Biomild, EU:C:2004:87, § 35 and 36; 27/02/2002, T-219/00, Ellos, EU:T:2002:44, § 27; 04/05/1999, C-108/97 and C-109/97, Chiemsee, EU:C:1999:230, § 25).

17. For a sign to be rejected as descriptive, there must be a sufficiently direct and specific relationship between the sign and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or one of their characteristics (22/06/2005, T-19/04, Paperlab, EU:T:2005:247, § 25; 27/02/2002, T-106/00, Streamserve, EU:T:2002:43, § 40). Furthermore, pursuant to Article 7(2) EUTMR, a sign shall not be registered if it is ineligible for protection with regard to only part of the EU.

18. The descriptiveness of the sign has to be assessed in relation to the goods or services for which registration is sought and by reference to the relevant public’s perception of it (02/04/2008, T-181/07, Steadycontrol, EU:T:2008:362, § 38; 21/05/2008, T-329/06, E, EU:T:2008:161, § 23).

19. The services at issue are directed at the public at large as well as professional customers. The degree of attention varies from average to high, depending on the kind of services concerned. Since the objected sign is composed of English words, the relevant public consists of the English-speaking consumers in the European Union, i.e. in particular the consumers in the United Kingdom, Ireland and Malta, but also in other Member States of the European Union where English is understood.

20. The sign applied for, ‘TRADING.COM’, has the typical structure of a domain name consisting of a second-level domain and a top-level-domain (‘TLD’) separated by a dot (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875, § 25 ; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614, § 20). In this case the term ‘TRADING’ is the second-level domain and the term ‘COM’ is the TLD. There are two types of TLDs: generic and country code. Generic TLDs are intended for use by a certain type of organization. One of the generic TLDs is ‘COM’, which is assigned to commercial users (10/09/2001, R 638/2000-4, § 22).

21. As the examiner correctly held, the first element of the mark applied for, ‘TRADING’, refers to the activity of buying and selling of goods and/or services, including the buying and selling of shares, currencies, etc. on financial markets.

22. As regards the element ‘.COM’, it will immediately be recognised by the relevant public as referring to an Internet site. It is a technical and generic element, the use of which is required in the normal structure of the address of a commercial Internet site. Furthermore, the element ‘.COM’ may also indicate that the services covered by the mark can be obtained or viewed on-line or are Internet-related (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875, § 26; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614, § 26).

23. The Boards of Appeal held already in the past that there are certain descriptors that are so broad that they are able to describe all kinds of goods and services, such as ‘BUY.COM’, since all the goods and services which are in trade may be bought via the Internet (10/09/2001, R 638/2000-4, § 24). The same reasoning applies to the case at hand. Exactly like the term ‘BUY’, the term ‘TRADING’ is so broad that it can refer to any kind of goods and services. All goods and services, including the services objected to by the examiner, can be the subject of trading, including trading over the Internet.

24. As the examiner correctly found, the relevant consumers will perceive the sign ‘TRADING.COM’ in relation to the objected services as an indication that the marked services are traded over the Internet. Besides, the sign ‘TRADING.COM’ also describes the subject matter and/or purpose of the services at issue.

25. The contested services in Class 36 fall under the following broader categories:

1. Insurance services and closely related services (‘insurance; information, advice and assistance relating to all the aforesaid; including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices’);

2. Financial services and closely related services (‘financial affairs; monetary affairs; commodity trading and exchanges services; integration futures exchange services; international stock exchange price quotation; international financial exchange and monetary services; foreign currency exchange and advice; financial clearing house services; financial brokerage services; financial and commodity trading services; providing trading services relating to financial instruments; financial services, namely, investment fund transfer and transaction services; financial trading services; executing trades and transactions on financial and commodities markets; - trustee services; providing loans; escrow services; currency exchange services; payment services; credit card services; debit card services; charge card services; prepaid card services; electronic credit and debit transactions; electronic funds transfer; provision of cards with computer chips and electronic cash services; cash disbursement; cash replacement; electronic cash transactions; cheque verification, cheque cashing; electronic funds transfers; stock exchange services; deposit access and automated teller machine services; payment processing services; cash based foreign exchange services; advice, assistance, information, analysis and consultation services in the fields of finance, financial trading, commodities trading, banking, money, commodities trading, currency trading, stocks and shares; providing financial information on bonds, warrant bonds, commercial sales, and exchange and investment trusts; investment services; money lending services; fund raising services; loan services; mortgage services; information, advice and assistance relating to all the aforesaid; including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices’);

3. Real estate services and closely related services (‘real estate affairs; insurance; information, advice and assistance relating to all the aforesaid; including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices’).

26. Insurance services, financial services, real estate services and therewith closely related services include trading activities. Therefore, the first element, ‘TRADING’, is descriptive of these services. It describes the subject matter and/or purpose of the services at issue. The second element ‘.COM’ describes the form in which the trading activities are offered, namely over the Internet.

27. The contested services in Class 41:

Education; providing of training; providing education, providing education and training in the fields of finance and financial trading; Internet, online and education services; organising and operating educational shows; educational and entertainment events ticket reservation services; advice, information and assistance relating to all the aforesaid, including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices;

are all educational and training services who can have as their subject the topic ‘trading’. Therefore, the first element ‘TRADING’ is descriptive of these services. It describes their subject matter. The second element ‘.COM’ describes the form in which the services are offered, namely over the Internet.

28. The contested services in Class 41:

News and current events reporting and syndication; advice, information and assistance relating to all the aforesaid, including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices;

are all news and information services who can have as their subject the topic ‘trading’. The element ‘TRADING’ is descriptive of these services. It describes their subject matter. The second element ‘.COM’ describes the form in which the services are offered, namely over the Internet.

29. The contested services in Class 41:

Conducting auditions; arranging contests; organising and operating games and competitions; betting, gambling, gaming and lottery services; advice, information and assistance relating to all the aforesaid, including (but not limited to) any of the aforesaid services provided online, and/or provided for use with and/or by way of the Internet, the world wide web and/or via communications, telephone, mobile telephone and/or wireless communication networks or devices;

are all services related to competitions, gambling, betting and lottery. All these services can be the subject of special trading services. There are companies that offer special trading services for competition, gambling, betting or lottery operators. Such special trading services comprise the administration of all competition, gambling, betting and lottery operations, from providing the fixtures to compiling the odds, and monitoring the liability to finally settle the bets. The element ‘TRADING’ is, therefore, descriptive of the services at issue. The second element ‘.COM’ describes the form in which the services are offered, namely over the Internet.

30. The sign ‘TRADING.COM’ will be understood in its entirety as an indication that the marked services are traded online or have as their subject or purpose the activity of trading and are offered over the Internet.

31. Contrary to the applicant’s view, the examiner has considered the mark ‘TRADING.COM’ as a whole. According to standing case-law, the addition of the element ‘.COM’ to the word ‘TRADING’ which is descriptive, does not render the sign distinctive as a whole. The distinctive part of a domain name is not the TLD, which is generic, but the second-level domain – which, in the present case is descriptive (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875, § 26 ; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614, § 26). The element ‘.COM’ is also descriptive of the services at issue (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875, § 26; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614, § 26). In the absence of special characteristics peculiar to the sign applied for, the relevant public’s perception of that sign will be no different from its perception of the combination of the two words comprising the sign. The sign in its entirety remains descriptive. It does not acquire a meaning that goes beyond the meaning of the mere sum of its descriptive elements.

Article 7(1)(b) EUMTR

32. As is clear from Article 7(1) EUTMR, for a sign not to be eligible for registration as a European Union trade mark, it is sufficient for one of the absolute grounds for refusal to apply (see 19/09/2002, C‑104/00 P, Companyline, EU:C:2002:506). Each of the absolute grounds for refusal listed in that provision is independent of the others and calls for a separate examination (12/02/2004, C‑363/99, Postkantoor, EU:C:2004:86, § 67; 08/04/2003, C‑53/01, C‑54/01 & C‑55/01, Linde, EU:C:2003:206, § 67). Even if those grounds are applicable separately, they may also be applied cumulatively (26/10/2000, T‑345/99, Trustedlink, EU:T:2000:246) to the same trade mark applied for.

33. Under Article 7(1)(b) EUTMR, trade marks which are devoid of any distinctive character, meaning that they are not capable of distinguishing the goods claimed by the applicant from those of other undertakings, shall also be refused registration. The trade mark must make it possible to distinguish the goods or services by their business origin, not by their characteristics (26/10/2000, T‑360/99, Investorworld, EU:T:2000:247, § 21).

34. If – contrary to the view adopted in this decision – the link between the sign ‘TRADING.COM’ and the objected services is regarded as not being sufficiently direct and immediate, the mark applied for is in any case non-distinctive. The lack of a descriptive character does not automatically mean that the mark at issue is distinctive (30/04/2003, T-707/13 & T-709/13, BE HAPPY, EU:T:2015:252, § 32; 12/02/2004, C‑363/99, Postkantoor, EU:C:2004:86, § 44; 30/03/2015, R 2459/2014-2, REMARKABLE, § 22).

35. The word ‘trading’ is widely used in many different contexts. All goods and services can be traded. The relevant consumers are, therefore, used to seeing the word ‘trading’ on a frequent basis in relation to a wide range of different goods and services, including the objected services at issue. Due to the wide spread use and the generic character of the word ‘trading’, the relevant consumer will not perceive the element ‘TRADING’ in the contested sign as an indication of origin. The same is true for the element ‘.COM’ for the reasons set out above (paragraph 21).

36. The mark applied for, ‘TRADING.COM’, in its entirety is not more than the sum of its non-distinctive elements. As already stated above (paragraph 30), the mark at issue has no additional element to support the conclusion that the combination created by the commonplace and customary components ‘TRADING’ and ‘.COM’ is unusual, fanciful or might have its own meaning, especially in the perception that the relevant public might have of the services concerned (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875, § 27; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614, § 27). The examiner, therefore, rightly found that the relevant public will not be able to distinguish the services at issue in these appeal proceedings from services of a different commercial origin. Consequently, the sign is devoid of distinctive character.

Prior registrations

37. The fact that similar or even identical trade marks have been registered in Member States or the European Union 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 defendant’s examination practice, attempts should be made to ensure that the same results are reached in comparable cases. 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 which call into question the examiner’s assessment in the present case. However, as explained, the examiner correctly decided to refuse the trade mark applied for. This refusal is in line with the case-law (12/12/2013, C‑70/13 P, PHOTOS.COM, EU:C:2013:875; 21/11/2012, T‑338/11, PHOTOS.COM, EU:T:2012:614) and decision-making practice of the Boards of Appeal (10/09/2001, R 638/2000-4, BUY.COM; 11/07/2001, R 989/2000-3, deal4free.com; 29/06/2015, R 2991/2014-5, EZtrade.COM; 19/08/1999, R 77/1999-2, WWW.PRIMEBROOKER.COM; 18/04/2013, R 778/2012-2, SECURETRADING; 26/09/2012, R 756/2012-4, FX Trading24; 11/06/2008, R 512/2008-2, END-TO-END TRADING SOLUTIONS; 31/07/2002, R 332/2000-2, THE FUTURE OF TRADING).

Order

On those grounds,

THE BOARD

hereby:

1. Declares the limitation to be admissible insofar as the applicant requested the deletion of the following services:

Class 36 – Holding money and funds for others; transaction authentication and verification services; information, advice and assistance related to all the aforesaid;

2. Dismisses the appeal.

Signed S. Martin

Registrar: Signed H.Dijkema