Judgment of the General Court (Seventh Chamber) 16 September 2026

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

16 September 2026 ( * )

( EU trade mark – International registration designating the European Union – Figurative mark ULTRAPURE – Absolute ground for refusal – No distinctive character – Article (7)(1)(b) and (2) of Regulation (EU) 2017/1001 )

In Case T‑890/25,

Fitmart GmbH & Co. KG, established in Elmshorn (Germany), represented by J. Schäffler and M. Kleinn, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by M. Eberl, acting as Agent,

defendant,

THE GENERAL COURT (Seventh Chamber),

composed of K. Kecsmár, President, L. Madise and U. Öberg (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Fitmart GmbH & Co. KG, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 October 2025 (Case R 1419/2025-4) (‘the contested decision’).

Background to the dispute

2 On 27 November 2024, the applicant, claiming priority of German mark No 302024110411, filed on 31 May 2024, designated the European Union in its international registration of the following figurative sign:

3 The mark applied for covered goods in Classes 5, 29, 30 and 32 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 corresponding, for each of those classes, to the following description:

– Class 5: ‘Amino acid preparations for medical purposes; vitamin preparations; nutritional supplements; mineral dietary supplements; soy protein dietary supplements; herbal supplements; enzyme dietary supplements; casein dietary supplements; dietary supplements in powder form; dietary food supplements used for modified fasting; whey protein dietary supplements; mineral nutritional supplements; food supplements for sportsmen; protein powder dietary supplements; protein dietary supplements; food supplements consisting of amino acids; dietary supplements consisting of vitamins; dietetic preparations adapted for medical use; dietary supplements and dietetic preparations; dietetic food preparations adapted for medical use; dietary and nutritional preparations; protein supplement shakes; food supplements in liquid form; powdered fruit-flavoured dietary supplement drink mix; multi-vitamin preparations; dietary supplemental drinks; nutritional supplement meal replacement bars for boosting energy; nutraceuticals for use as a dietary supplement; powdered nutritional supplement drink mix; food supplements for non-medical purposes; vitamin and mineral preparations; vitamin and mineral supplements; vitamins and vitamin preparations; vitamin preparations in the nature of food supplements; dietetic foods adapted for medical purposes; nutritional supplements’;

– Class 29: ‘Milk; milk products; milk shakes; dairy-based beverages; powdered milk; powdered milk for food purposes; flavoured milk powder for making drinks; whey; dairy products and dairy substitutes; dairy-based beverages; soya milk; powdered egg whites; white of eggs; yolk of eggs’;

– Class 30: ‘Cereal preparations; malt for human consumption; malt extract for food; chocolate; aerated beverages [with coffee, cocoa or chocolate base]; glucose preparations for food; cereal bars and energy bars; chocolate-coated bars; high-protein cereal bars; natural low calorie sweeteners; non-medicated confectionery for use as part of a calorie controlled diet; tea-based beverages; tea-based beverages; preparations for making beverages [tea based]; chocolate-based beverages; extracts of coffee for use as flavours in beverages’;

– Class 32: ‘Non-alcoholic beverages; fruit juice beverages; juices; syrups for making beverages; non-alcoholic preparations for making beverages; dilutable preparations for making beverages; syrups and other non-alcoholic preparations for making beverages; isotonic beverages [not for medical purposes]; energy drinks; energy drinks; isotonic beverages; preparations for making non-alcoholic beverages; pastilles for effervescing beverages; cola drinks; non-alcoholic beverages flavoured with coffee; non-alcoholic beverages flavoured with coffee; fruit-flavoured beverages; vitamin fortified non-alcoholic beverages; nutritionally fortified beverages; protein drinks; protein-enriched sports beverages; sports drinks; sports drinks with electrolytes; concentrates for use in the preparation of sports drinks’.

4 By decision of 10 July 2025, the examiner refused registration of the mark applied for, on the basis of Article 7(1)(b) and (c) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

5 On 8 August 2025, the applicant filed a notice of appeal with EUIPO against the examiner’s decision.

6 By the contested decision, the Board of Appeal dismissed the appeal on the ground that the contested mark fell within the scope of Article 7(1)(b) of Regulation 2017/1001, read in conjunction with Article 7(2) of that regulation, in so far as it conveyed only a banal and laudatory meaning and was devoid of any distinctive character.

Forms of order sought

7 The applicant claims that the Court should:

– annul the contested decision and the examiner’s decision of 10 July 2025;

– order EUIPO to pay the costs.

8 EUIPO contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened.

Law

Substance

9 In support of its action, the applicant relies on two pleas in law, the first alleging infringement of Article 7(1)(b) of Regulation 2017/1001 and the second alleging infringement of the principles of equal treatment and good administration.

The first plea in law, alleging infringement of Article 7 (1)(b) of Regulation 2017/1001, relating to the distinctive character of the mark applied for

10 In its first plea, the applicant puts forward three arguments. First, it submits that the combination of the words ‘ultra’ and ‘pure’ comprising the mark applied for will not be understood immediately and unambiguously by the relevant public as a direct reference to the characteristics of the goods covered by that mark, but that the variety of meanings of that combination will set off a cognitive process in the minds of the relevant public, thereby conferring on it a minimum degree of distinctive character. Secondly, the applicant claims that the mark applied for satisfies the required minimum degree of distinctive character on account of its eye-catching figurative element. Thirdly, the applicant submits that, in accordance with Article 7(1)(c) of Regulation 2017/1001, the mark applied for is not descriptive and the relevant public will have to make a mental effort to establish a link between the reference to the purity of the goods covered by that mark and their particular qualities.

11 EUIPO disputes the applicant’s arguments.

12 According to Article 7(1)(b) of Regulation 2017/1001, trade marks which are devoid of any distinctive character are not to be registered.

13 Pursuant to Article 7(2) of Regulation 2017/1001, Article 7(1) of that regulation is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.

14 For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001, 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 (see judgment of 21 January 2010, Audi v OHIM , C‑398/08 P, EU:C:2010:29, paragraph 33 and the case-law cited).

15 The notion of ‘public interest’ underlying Article 7(1)(b) of Regulation 2017/1001 is, manifestly, indissociable from the essential function of a trade mark, which is to guarantee the identity of origin of the goods or services covered by the mark to the consumer or end user by enabling him or her, without any possibility of confusion, to distinguish those goods or services from others which have another origin (see, to that effect, judgment of 29 April 2004, Henkel v OHIM , C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 48).

16 The descriptive signs referred to in Article 7(1)(c) of Regulation 2017/1001 are also devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation. Conversely, a sign may be devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001 for reasons other than the fact that it may be descriptive (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraph 46).

17 Moreover, according to the case-law, a minimum degree of distinctive character is sufficient to preclude the application of the absolute ground for refusal provided for in Article 7(1)(b) of Regulation 2017/1001 (judgment of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL) , T‑34/00, EU:T:2002:41, paragraph 39).

18 According to settled case-law, registration of a trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use. However, a mark which, like an advertising slogan, fulfils functions other than that of a trade mark in the traditional sense of the term is distinctive for the purposes of Article 7(1)(b) of Regulation 2017/1001 only if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin (see judgment of 21 January 2010, Audi v OHIM , C‑398/08 P, EU:C:2010:29, paragraphs 35 and 45 and the case-law cited; judgment of 3 July 2003, Best Buy Concepts v OHIM (BEST BUY) , T‑122/01, EU:T:2003:183, paragraph 21; see, also, judgment of 21 February 2024, Timothy Jacob Jensen Studios v EUIPO (DESIGNERS TRUST) , T‑92/23, not published, EU:T:2024:107, paragraph 15 and the case-law cited).

19 The applicant’s arguments regarding the Board of Appeal’s assessment set out in the contested decision must be examined in the light of those considerations.

20 As a preliminary point, the Board of Appeal found that the goods in Class 5 covered by the mark applied for were aimed at the general public and professionals in the medical and nutritional sector, who display a high level of attention. Moreover, the Board of Appeal stated that the goods covered by that mark in Classes 29, 30 and 32 were aimed at the general public, which displays at most an average or even low degree of attention.

21 The Board of Appeal noted that, irrespective of the level of attention of the relevant public, that level could be relatively low where promotional indications were concerned.

22 The Board of Appeal based its assessment on the perception of the English- and French-speaking public in the European Union, which, at the date of adoption of the contested decision, was the public in Ireland, Malta, Belgium, France and Luxembourg.

23 The applicant does not contest those findings of the Board of Appeal.

24 In the first place, the Board of Appeal noted that the mark applied for was a figurative mark consisting of the word element ‘ultrapure’, written in black, in a simple bold upper-case font placed on a yellow rectangular background.

25 The Board of Appeal considered that the word element ‘ultrapure’ in the mark applied for would be easily understood as a combination of the element ‘ultra’, a prefix commonly added in English and French to adjectives to form other adjectives which emphasise that something has a quality to an extreme degree, and the element ‘pure’, an English and French adjective that refers to something clean and devoid of any harmful substances. Moreover, the Board of Appeal stated that the absence of a space between those two elements was not sufficient to amount to a creative aspect capable of distinguishing the applicant’s goods from those of other undertakings.

26 Accordingly, the Board of Appeal found that the term ‘ultrapure’ had a plain meaning for the relevant public, namely that the goods covered by the mark applied for, such as dietetic and nutritional substances, food products and drinks, were extremely pure and contained no harmful substances.

27 In response to the applicant’s argument that the element ‘pure’ had several possible meanings which, in turn, would set off a cognitive process in the minds of the relevant public, the Board of Appeal found that, although the case-law recognises that the fact that a mark has a number of meanings may serve to establish that it has distinctive character, in the present case none of the possible meanings of the term ‘pure’ served to establish the distinctive character of the mark applied for, since none of those meanings would deprive that mark of its laudatory nature or create sufficient conceptual tension to establish distinctive character.

28 The Board of Appeal found that, with respect to the goods concerned in Class 5, consisting, inter alia, of vitamins and other dietetic preparations, and to the goods in Classes 29, 30 and 32, consisting of everyday food products and drinks, the relevant public would immediately understand that the sign indicated the high purity of the goods, which is a key quality factor linked to health, safety and effectiveness, to which consumers attach great importance. A high degree of purity therefore conveys the idea that the product has been carefully manufactured or sourced.

29 Consequently, the Board of Appeal found that the contested mark would be seen by the relevant public as a mere laudatory and promotional message in the context of the goods covered by the contested mark, since it conveys a straightforward and unambiguous idea about a positive feature of those goods, with the aim of making them sound attractive, which will be understood without any particular intellectual effort on the part of the consumer. The Board of Appeal found that this was not sufficient to perform the essential function of a trade mark, namely to identify the commercial origin of the goods in question, and that the consumer would not take the time either to enquire into the sign’s various possible functions or mentally to register it as a trade mark.

30 The applicant claims that the Board of Appeal erred in its assessment of the distinctive character of the combination of the words ‘ultra’ and ‘pure’. The applicant submits that the relevant public interprets the element ‘pure’ not solely on the basis of its most restrictive dictionary definition, but rather in the light of commercial practice. It claims that the element ‘pure’ evokes a variety of meanings and arouses associations, in particular, with elaborate production processes and rigorous monitoring of products, makes allusions to outstanding safety and effectiveness and conveys metaphorical or promotional messages. Moreover, the suggestion of naturalness and of the health field prompts the relevant public to consider whether the product offers exceptional efficacy or superior physical tolerability, which is sufficient to confer distinctive character on that element for the purposes of Article 7(1)(b) of Regulation 2017/1001.

31 Furthermore, the applicant submits that the combination ‘ultrapure’ is not perceived as the mere sum of its parts, but requires the relevant public to undertake a two-step interpretative process involving a certain degree of abstraction, which is sufficient to confer distinctive character on the mark applied for. According to the applicant, the Board of Appeal overlooked the fact that even terms created in accordance with common linguistic usage or common advertising practice, including terms containing a simple factual statement, may nonetheless function as indicators of commercial origin, provided that they display a certain originality or a certain memorability, require a minimum degree of interpretative effort or trigger a thought process in the minds of the relevant public.

32 Accordingly, the applicant submits that the unusual and linguistically striking combination ‘ultrapure’ necessarily triggers a thought process in the consumer’s mind, thereby reinforcing the memorability of the mark applied for. The relevant public thus perceives the mark applied for as an indication of commercial origin and that mark therefore has at least a minimum degree of distinctive character.

33 EUIPO disputes the applicant’s arguments.

34 First, it should be noted that the applicant does not dispute that the words ‘ultra’ and ‘pure’ may have the meaning which the Board of Appeal relied on (see paragraph 25 above), but maintains that it is not necessarily that meaning which the relevant public will associate with the term ‘pure’, since that term lends itself to many possible interpretations. Nor does the applicant dispute that the meanings of the terms ‘ultra’ and ‘pure’ may be interpreted as a promotional message or a slogan.

35 In that regard, the fact that the mark applied for has a number of meanings is in itself a relevant factor which must be taken into consideration in the context of Article 7(1)(b) of Regulation 2017/1001 (see judgment of 24 September 2025, Claims Balkans v EUIPO (CLAIMS) , T‑582/24, not published, EU:T:2025:914, paragraph 26 and the case-law cited).

36 Moreover, the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation 2017/1001, must be assessed, first, by reference to the products or services in respect of which registration has been applied for and, second, by reference to the perception of the relevant public (see judgment of 29 April 2004, Henkel v OHIM , C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 35 and the case-law cited).

37 In the present case, it is common ground that the word ‘pure’ has a number of meanings. That said, in its most common meaning, the adjective ‘pure’ describes something that is not mixed with anything else, that is free from any harmful substance or that is complete, as is shown by the definitions corresponding to the entry for that word in the online Oxford Dictionary . It refers to the concept of cleanliness and perfection. As the Board of Appeal noted in paragraphs 35 and 36 of the contested decision, in the health, well-being, food and drinks sector, consumers attach considerable importance to the purity of a product, since the absence of additives or harmful substances is often interpreted as an essential factor in guaranteeing the effectiveness of the goods in question. Consequently, in the context of the goods concerned, the applicant has not explained why the relevant public would not understand the word ‘pure’ as meaning ‘free from contaminants, additives or harmful substances’.

38 Moreover, even if the relevant public were immediately to perceive the word ‘pure’ as alluding to outstanding safety and effectiveness, as the Board of Appeal has already stated in paragraph 35 of the contested decision, the applicant does not establish that that meaning is capable of conferring on the mark applied for sufficient distinctive character to allow it to be registered. That meaning, or any other meaning of the word ‘pure’, also merely conveys an unambiguous idea which the relevant public will perceive as a positive feature of the goods concerned rather than as information regarding the commercial origin of those goods.

39 Consequently, notwithstanding the number of possible meanings of the word ‘pure’ in the abstract, it must be found that, in the specific context of the goods concerned, none of the possible meanings of that term sufficiently prevents the relevant public from immediately and exclusively perceiving the mark applied for as conveying a laudatory message concerning all the goods concerned, rather than as an indication of the commercial origin of the goods which it covers. In those circumstances, the applicant cannot validly rely on the multiple meanings of the word ‘pure’ in order to call into question the Board of Appeal’s findings regarding the distinctive character of the mark applied for.

40 The same is true of the term ‘ultra’. In essence, the generic meaning of that term, a synonym of the word ‘extra’, which tends to exalt, in an unspecified manner, the nature, function, quality or one of the qualities of any product, and the usual use of that term in everyday language, as in trade, as a generic laudatory term contribute to the laudatory character of the mark applied for (see judgment of 12 June 2024, Amstel Brouwerij v EUIPO – Anheuser-Busch (ULTRA) , T‑170/23, not published, EU:T:2024:375, paragraph 52 and the case-law cited). It follows that the term ‘ultra’ is a generic laudatory term which cannot be regarded as capable of distinguishing the commercial origin of the goods to which it relates.

41 Secondly, with respect to the claim that the combination ‘ultrapure’ requires the relevant public to undertake a two-step interpretative process, thereby conferring a minimum degree of distinctive character on the mark applied for, the Court recalls that, where a mark comprises a combination of elements, it may be assessed in the light of each of those elements taken separately, but must, in any event, also be analysed in the light of the whole which those elements comprise (see, to that effect, judgment of 15 March 2012, Strigl and Securvita , C‑90/11 and C‑91/11, EU:C:2012:147, paragraph 23). However, the applicant has not explained how the combination of the elements ‘ultra’ and ‘pure’ would be perceived as an unusual combination having a distinct meaning, going beyond the mere sum of its parts. The Court fails to see what meaning the mark could convey other than the meaning that the goods which it covers are extremely or extraordinarily pure or clean.

42 In the present case, in the context of the goods concerned, both the term ‘ultra’ and the term ‘pure’ will be understood by the relevant public as being banal and laudatory terms, each serving to emphasise the exceptional cleanliness or quality of the goods in question. Contrary to what the applicant claims, these are well-known terms in English and French. Moreover, it is common knowledge that the word ‘ultra’ may be used as a prefix to form adjectives which express the superlative.

43 Furthermore, where a trade mark consists of a neologism composed of elements each having a clear meaning and where the neologism itself does not depart from the meaning of the mere combination of its constituent elements, it cannot have a higher level of distinctiveness than the sum of its individual parts (see, by analogy, judgment of 5 July 2017, Allstate Insurance v EUIPO (DRIVEWISE) , T‑3/16, not published, EU:T:2017:467, paragraphs 30 and 35 to 38).

44 In that regard, the neologism ‘ultrapure’ is composed of English and French terms which are readily identifiable by the relevant English- and French-speaking public and does not constitute a word which, by virtue of its unusual nature in relation to the goods in question, would have a specific meaning which would prevail over the simple juxtaposition of the words comprising it.

45 Consequently, the combination of the two well-known words ‘ultra’ and ‘pure’ does not give rise to the two-step interpretative process which is necessary, in the case of advertising slogans, indications of quality or incitements to purchase the goods covered by the mark applied for, to confer distinctive character on that mark.

46 Accordingly, the relevant public will immediately understand the meaning of the sign and will not associate it with the applicant’s undertaking. Consumers in the sector of health and well-being products value, or even expect, the purity of products which they purchase and do not distinguish the origin of those products on the basis of the fact that they are ‘ultrapure’, but rather see in that term a mere promotional or laudatory message relating to the appeal of the products in question.

47 Accordingly, the Board of Appeal was correct in finding that the word element ‘ultrapure’ in the mark applied for was not sufficient to confer distinctive character on that mark for the purposes of Article 7(1)(b) of Regulation 2017/1001.

48 In the second place, the Board of Appeal found that the basic black font and the yellow background were not sufficient for the mark applied for to overcome the objection of non-distinctiveness. The font is easily readable and the yellow rectangle is a basic geometric shape. The combination of the colours yellow and black does not introduce an element of irony or semantic opposition by creating a conceptual tension. Accordingly, those elements would be perceived as decorative and would serve only to emphasise the promotional message conveyed by the word element.

49 The applicant claims that the figurative element of the sign has at least a minimum degree of distinctive character. It submits that the Board of Appeal erred in finding that the figurative element was devoid of distinctive character, since it creates a specific and memorable overall impression which goes beyond the semantic content of the word element.

50 The applicant submits that the bright yellow background combined with the black lettering produces an eye-catching visual identity, which is commonly recognised as a warning colour combination and is unusual in the food supplement sector. Since that combination is unexpected, the applicant asserts that it makes the trade mark more capable of being associated with the applicant’s undertaking and more capable of indicating the commercial origin of the goods on which the mark applied for may appear.

51 The applicant therefore submits that the contested mark has at least a minimum, or even average, degree of distinctive character, both from a conceptual standpoint and, above all, in terms of its overall impression, including its figurative element.

52 EUIPO disputes the applicant’s arguments.

53 Even though, in some cases, the figurative element of a composite mark may, in particular on account of its shape, size, colour or position in the sign, rank equally with the word element (judgment of 27 November 2024, Vino Vintana v EUIPO – Torrevento (SINCE 1974 PRIMITIVO DI MANDURIA) , T‑276/24, not published, EU:T:2024:868, paragraph 40) and thereby, depending on the circumstances, confer a minimum degree of distinctive character on the mark applied for, that is not the case here.

54 Contrary to what the applicant claims, a simple typeface, which has weak distinctive character, is not sufficient to constitute an indication of commercial origin. In the present case, the typeface and colour scheme used by the applicant are not sufficiently memorable to establish satisfactorily the minimum degree of distinctive character required by Article 7(1)(b) of Regulation 2017/1001. Given the recurrent nature of the typographical features of the mark applied for, and the absence of any particular distinctive element, the typeface used and the boldness of the characters do not enable the trade mark applied for to constitute a clear and exclusive reference, in the mind of the relevant public, to the origin of the goods covered by the application for registration. Thus, the figurative element is so ordinary that it does not endow the trade mark applied for as a whole with any distinctive character. That element does not possess any feature, in particular as regards its fancifulness or the way in which it is combined, allowing that mark to fulfil its essential function in relation to the goods covered by the trade mark application (see judgment of 15 May 2014, Katjes Fassin v OHIM (Yoghurt-Gums) , T‑366/12, not published, EU:T:2014:256, paragraph 31 and the case-law cited).

55 Moreover, the colours yellow and black are not sufficiently distinctive to enable the relevant public to identify the commercial origin of the goods in question. Consumers are not in the habit of making assumptions about the origin of goods based on their colour or the colour of their packaging, in the absence of any graphic or word element, because as a rule a colour per se is not, in current commercial practice, used as a means of identification. A colour is not normally inherently capable of distinguishing the goods of a particular undertaking (see judgments of 13 September 2010, KUKA Roboter v OHIM (Shade of orange), T‑97/08, EU:T:2010:396, paragraph 42 and the case-law cited, and of 13 November 2024, Chiquita Brands v EUIPO – Compagnie financière de participation (Representation of a blue and yellow oval) , T‑426/23, not published, EU:T:2024:807, paragraph 44 and the case-law cited).

56 In the third place, the applicant claims that, in accordance with Article 7(1)(c) of Regulation 2017/1001, the mark applied for does not directly refer to specific characteristics of the goods which it covers. The applicant submits that any reference to ‘purity’ presupposes an intellectual effort linking the sign to particular qualities of the goods. Since consumers in the European Union naturally expect food products to be safe and free from harmful substances, as required by law, the sign would not be regarded as a factual assertion.

57 EUIPO disputes the applicant’s arguments.

58 It should be noted at the outset that the Board of Appeal did not examine the conformity of the contested mark with Article 7(1)(c) of Regulation 2017/1001, but confined its examination to an analysis of Article 7(1)(b) of that regulation, since it is clear from Article 7(1) of that regulation that, for a sign not to be registrable as an EU trade mark, it is sufficient that one of the absolute grounds for refusal applies (see, to that effect, judgment of 22 June 2017, Biogena Naturprodukte v EUIPO (ZUM wohl) , T‑236/16, EU:T:2017:416, paragraph 62 and the case-law cited).

59 The applicant cannot therefore rely on the absence of an analysis by EUIPO as to the conformity of the mark applied for with Article 7(1)(c) of Regulation 2017/1001 as evidence that that mark is not descriptive and, therefore, that it has distinctive character.

60 Nevertheless, the Board of Appeal found that, even if the contested mark is not descriptive for the purposes of Article 7(1)(c) of Regulation 2017/1001, that fact does not automatically mean that the mark is distinctive for the purposes of Article 7(1)(b) of that regulation. Distinctive character may also be lacking if the sign consists only of laudatory and promotional information on the kind, quality, nature and intended purpose of the goods concerned, thereby preventing the relevant public from perceiving the commercial origin of the goods in the sign.

61 As is apparent from paragraph 39 above, the word element ‘ultrapure’, in the context of the goods concerned, serves only to convey a purely laudatory message. Even if the Board of Appeal had carried out a full examination and had concluded that the word ‘ultrapure’ was not descriptive of the goods concerned, that fact would not necessarily have led to the conclusion that the mark had distinctive character for the purposes of Article 7(1)(b) of Regulation 2017/1001 (see judgment of 18 October 2023, Sports Group Denmark v EUIPO (ENDURANCE) , T‑566/22, not published, EU:T:2023:655, paragraph 28 and the case-law cited).

62 Accordingly, the Board of Appeal did not infringe Article 7(1)(b) of Regulation 2017/1001 in finding that the contested mark lacks distinctive character.

The second plea in law, alleging infringement of the principles of equal treatment and sound administration

63 The applicant claims that EUIPO is required to treat comparable cases consistently if the legal and factual circumstances are substantially the same and if the earlier decisions are consistent and lawful. The applicant claims in particular, in that connection, that the Board of Appeal did not sufficiently take into consideration the earlier registrations of trade marks containing the elements ‘ultra’ and ‘pure’, without any other distinctive element, and covering comparable goods and services, on which it had relied and in the context of which those terms had rightly been found to be sufficiently distinctive and not descriptive. According to the applicant, the refusal to register the applicant’s mark therefore resulted in unjustified unequal treatment.

64 EUIPO disputes the applicant’s arguments.

65 In that regard, the legality of the decisions of the Boards of Appeal of EUIPO must be assessed solely on the basis of Regulation 2017/1001, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice (see judgment of 26 April 2007, Alcon v OHIM , C‑412/05 P, EU:C:2007:252, paragraph 65 and the case-law cited). Moreover, the references to the decisions adopted at first instance by EUIPO are not binding either on the Boards of Appeal of EUIPO or, a fortiori , on the Courts of the European Union (see, to that effect, judgment of 12 December 2019, Conte v EUIPO (CANNABIS STORE AMSTERDAM) , T‑683/18, EU:T:2019:855, paragraph 79 and the case-law cited).

66 Nevertheless, 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 (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraphs 73 and 74 and the case-law cited).

67 However, since EUIPO’s application of the principles of equal treatment and good administration must be consistent with respect for the principle of legality, a person who files an application for registration of a sign as an EU trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act committed to the benefit of someone else (see, to that effect, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraphs 73, 75 and 76).

68 Moreover, for reasons of legal certainty and, indeed, of good administration, the examination of any trade mark application must be stringent and full, and the examination must be undertaken in each individual case, in order to prevent trade marks from being improperly registered (judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraph 77; see, also, judgment of 28 June 2018, EUIPO v Puma , C‑564/16 P, EU:C:2018:509, paragraph 61 and the case-law cited).

69 In the present case, as is apparent from paragraphs 10 to 62 above, the Board of Appeal was entitled to find that the mark applied for was caught by the ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001, with the result that the applicant cannot validly rely on previous decisions of EUIPO to have that finding overturned.

70 It follows that, contrary to what the applicant claims, the Board of Appeal was correct in finding that the EU trade marks relied on by the applicant were not relevant.

71 In that regard, almost all of the EU trade marks relied on by the applicant contain only one of the two elements making up the word element of the mark applied for. The applicant has not adduced any evidence capable of establishing how the EU trade marks relied on were comparable to the contested mark.

72 It follows from the foregoing that the second plea must be rejected and the action must therefore be dismissed in its entirety, without it being necessary to rule on the admissibility of the applicant’s second head of claim.

Costs

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

74 Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, each party must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1. Dismisses the action;

2. Orders Fitmart GmbH & Co. KG and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.

Delivered in open court in Luxembourg on 16 September 2026.

* Language of the case: English.