EUIPO to pay costs following Nestle dispute annulment
Yet another trade mark blow for Nestle.
Possibly the unluckiest company when it comes to trade marks, Nestle have become involved in yet another EU trade mark dispute.
The dispute started with a rare Nestle trade mark success, which saw their application for ‘Fitness’ accepted and registered as a trade mark in the EU under classes 29, 30 and 32 which covers food and drink in May 2005.
However, problems started in 2011, when Romania- based business European Food made an application for a declaration of invalidity, on the grounds that the term was descriptive.
The application was heard by the Cancellation division and they did not agree as they rejected the application.
European Food appealed this decision, which was again dismissed by the Board of Appeal citing a failure to provide sufficient evidence.
In 2015, European Food took the matter further and made an application to the General Court to have the decision annulled.
The relied on three grounds for this application which were:
- The Board of Appeal had refused to take account of evidence submitted; as they stated the evidence did not refer to the correct period of time
- The mark was descriptive
- The mark lacked distinctive character
European Food had their first success as the General Court annulled the Board of Appeal’s decision, and ordered them to bear both parties costs.
This success was short lived as the EU Intellectual Property Office appealed to the Court of Justice for European Union, alleging that the General Court was wrong to state that there are no rules setting a time limit for the production of evidence.
However, the Court stated that in the “absence of time limits for the production of evidence in the context of an application for a declaration of invalidity”, the evidence could in fact be introduced at any time. This includes at the stage of appeal.
Therefore, the EUIPO’s appeal was dismissed and European Foods had succeeded.
As this last appeal decision was made in the last week, the effect on Nestle is yet to be confirmed but it is like the mark will be declared invalid or at least the matter will be looked at again.
Yet more trade mark drama for Nestle, will they ever have any success.
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By Ellis Sweetenham