EUROPEAN UNION: Chiquita’s Oval Blues—General Court Upholds Trademark Invalidity

The General Court of the European Union (GC) has upheld the invalidity of Chiquita Brands LLC’s EU figurative trademark featuring a blue and yellow oval (Case T426/23) for being devoid of distinctive character under Article 7(1)(b) of Regulation No. 40/94.

Chiquita registered the blue and yellow oval mark (see right) in 2008 for products in Classes 29, 30, 31, and 32, covering items such as fruits, vegetables, and juices. In May 2020, Compagnie Financière de Participation filed a declaration of invalidity, arguing that the mark lacked distinctive character. The Cancellation Division of the EU Intellectual Property Office granted the invalidity request, a decision the Board of Appeal partially upheld in May 2023.

While the Board found the mark invalid for “fresh fruits” in Class 31 due to its lack of distinctive character, it rejected the invalidity for other goods, citing insufficient evidence. Chiquita appealed to the GC, claiming its mark had the requisite distinctiveness.

In its decision on November 13, 2024, the GC held that the mark consisted of a simple geometric shape—a variation of an oval—incapable of attracting consumers’ attention and differentiating the covered goods from other goods on the market—something perceived as a mere decorative element. The blue and yellow color combination, while visually appealing, was deemed too basic and commonly used in the fresh fruits sector to serve as a unique identifier of commercial origin.

Chiquita argued that the mark had acquired distinctiveness through extensive use. However, the GC found the evidence insufficient. Market surveys and sales data primarily focused on a few member states, such as Belgium, Germany, Italy, and Sweden, without demonstrating widespread recognition across the EU. Moreover, most evidence referred to the mark in combination with other elements, such as the CHIQUITA word mark, rather than the contested mark by itself.

The GC confirmed the Board of Appeal’s findings that the mark was devoid of distinctive character for “fresh fruits” and had not acquired distinctiveness through use. The GC annulled the Board’s decision to allow the mark for other goods due to procedural errors by the opposing party but upheld the invalidity for “fresh fruits.”

This decision highlights the high threshold for distinctiveness under EU Trade Mark law, particularly for EUTMs composed of simple shapes and color combinations. It also underscores the importance of robust, EU-wide evidence when claiming acquired distinctiveness.

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