EU General Court Peels Back Banana Label Trade Mark

It’s all gone bananas for Chiquita Brands LLC! The General Court of the EU has invalidated Chiquita Brands LLC’s coloured and oval shaped trade mark which is used on banana labels. Our Intellectual Property team reviews the decision and considers what “food for thought” arises for brand owners in the food and beverage sector.

Compagnie financière de participation (Compagnie) filed an invalidity application in May 2020 with the EUIPO. This application was directed against the following EUTM registration owned by Chiquita Brands LLC (Chiquita).

The Chiquita registration above protected amongst a wider range of food related goods “fresh fruits and vegetables” in Class 31, “fruit juices” in Class 32 and “confectionery, ices and ice” in Class 30. In November 2021, the EUIPO Cancellation Division granted the invalidity application in its entirety. Chiquita appealed.

Board of Appeal

The Board of Appeal allowed the appeal for all of the contested goods except for “fresh fruits and vegetables” in Class 31. The Board held that the contested mark lacked distinctive character for “fresh fruits and vegetables”. It also found that there was no evidence to show the mark had acquired distinctive character through use. Chiquita appealed again, this time to the General Court of the EU.

General Court

The General Court upheld the EUIPO Board of Appeal’s finding and declared the mark invalid for fresh fruits.

Shape

The Board stated that the mark is a simple figurative design showing a rounded blue shape outlined by two curved lines in yellow and blue. It explained that this is just a slight variation of an oval, which is a basic geometric shape.The shape did not have easily and instantly memorable characteristics. As a result, the mark does not have the minimum level of distinctiveness needed to serve as a trade mark. The Court noted that this is especially true in the banana industry, where oval labels are commonly used as they are easy to apply to curved fruit.

Colour

Regarding the use of colour in the mark, the Court stated that consumers typically do not associate the colour of a product or packaging with its origin. This is because generally colour alone is not commonly used as a means of identification in current commercial practice. The Court agreed with the Board of Appeal, stating that blue and yellow are primarily just colours and that their combination is a simple element, which is not likely to be remembered by the relevant public.

Acquired distinctiveness

Lastly, Chiquita referred to a market survey carried out in September 2020. It argued that it showed:

1. The trade mark is memorised by consumers in Belgium, Germany, Italy, Sweden and the UK and,
2. The trade mark is associated with Chiquita

The Court held that this was insufficient to demonstrate acquired distinctiveness through use for the entire territory of the EU. The acquired distinctiveness argument therefore failed.

Take aways

The General Court decision serves as a reminder of the difficulties which brand owners face in trying to establish the distinctiveness of colour marks. In addition, the decision also illustrates that colour schemes do not automatically make a mark unique or distinctive. The case also highlights that where a mark is not considered distinctive, you must provide evidence of acquired distinctiveness through the EU.

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The content of this article is provided for information purposes only and does not constitute legal or other advice.