UPDATE

The European Union General Court's recent decision in Case T-426/23 confirmed that Chiquita Brands' blue and yellow oval is not eligible for protection as a European Union trademark for fresh fruit.

Reviewing the story briefly, in 2008 Chiquita Brands LLC obtained registration of the following figurative trademark, in connection with several food products, including fresh fruit.

In 2020, Compagnie financiére de partecipation asks the EUIPO to declare the mark invalid for lack of distinctiveness. It initially obtains the invalidity of the mark in its entirety. Then in 2023, through appeal, the mark is declared invalid by EUIPO only in relation to fresh fruit, including bananas.

Chiquita Brands LLC appeals the decision before the General Court of the European Union, which, by the measure under review, however, dismissed the appeal in relation to fresh fruit.

In fact, the Court found that the mark in question does not have a sufficient degree of distinctiveness, since, on the one hand, the mark consists of a simple variation of a standard geometric shape (an oval/ovaloid); on the other hand, the chosen shape is commonly used in the fruit sector, as it can easily be applied to curved fruits including, precisely, bananas. In addition, the Tribunal noted that the color combination of blue and yellow is not sufficiently distinctive either, as these are two primary colors frequently used in the fresh fruit trade.

Moreover, Chiquita Brands has not provided sufficient evidence to show that the trademark, as filed, namely without additional graphic and word elements, is perceived by the relevant public as identifying the commercial origin of the goods involved.

In fact, almost all of the evidence filed features the mark in combination with the word CHIQUITA and/or other figurative elements.

The lack of evidence of use of the mere blue and yellow sticker versus the one with the additional graphic and denominative elements acquires relevance.

Once again, the court does not grant discounts on the proof of acquired distinctiveness of trademarks.

Therefore, it is important, first, to make companies aware of how to use trademarks by suggesting, as far as possible, to:

1. use trademarks in all registered versions;
2. secondly, it is essential to collect and preserve over the years evidence of trademark use, namely, all documents for example advertisements, invoices, catalogs, photographs of products, and anything else that may be useful for the purpose of proving trademark use throughout the relevant territory, also bearing in mind that for Chiquita, evidence filed in only four EU countries was not deemed sufficient to prove use in the remaining EU countries.

The present decision of the Tribunal seems to increasingly highlight the gap between national legislation, which – for so-called defensive trademarks – contemplates an exemption from the burden of actual use of the sign, provided that the use of the main mark is substantiated, and European Union legislation, which does not expressly contemplate a corresponding exemption. 

Are we sure that consumers do not trace the simple blue and yellow sticker back to Chiquita?

We are waiting to see whether an appeal will be filed with the European Court of Justice and, if so, what its decision will be.

At the present time and (also) as a result of this decision, a further observation can also be made. Companies owning “historic” trademarks must be particularly careful when collecting evidence of use and especially when invoking acquired distinctiveness for trademarks consisting essentially of standard forms, which should remain in free use.