In Case T‑476/15, European Food SA brought an invalidity action against the EUTM word mark FITNESS registered by Société des produits Nestlé SA for the following goods:

• Class 29: ‘Milk, cream, butter, cheese, yoghurts and other milk-based food preparations, substitutes for dairy products, eggs, jellies, fruit, vegetables, protein preparations for human consumption’;
• Class 30: ‘Cereals and cereal preparations; ready-to-eat cereals; breakfast cereals; foodstuffs based on rice or flour’;
• Class 32: ‘Still water, aerated or carbonated water, spring water, mineral water, flavoured water, fruit drinks, fruit juices, nectars, lemonades, sodas and other non-alcoholic drinks, syrups and other preparations for making syrups and other preparations for making beverages’.                                       As regards the alleged descriptiveness,  the BOA found that most of the evidence produced before the CD post-dated the relevant point in time or concerned the territory of Romania before its accession to the EU. As regards the copies from dictionaries concerning the term ‘fitness’, that term did not designate an inherent characteristic of the goods concerned in the eyes of consumers in 2001 and therefore it was not sufficient to prove the descriptiveness of the contested mark. Moreover, the BOA rejected as being belated some further evidence submitted for the first time before it. It applied by analogy the third subparagraph of Rule 50(1) EUTMIR read in conjunction with Rule 37(b)(iv) of that regulation. Therefore, it found that the term ‘fitness’ had an evocative and ambiguous content, and was distinctive for the goods above.

European Food SA appealed. The Court held that Article 76 of EUTMR, read in conjunction with Rule 37(b)(iv) of the IR, does not imply that evidence submitted for the first time before the Boards must be regarded as belated by the BOA in invalidity proceedings based on an absolute ground for refusal.

Therefore, the BOA erred in law rejecting the evidence because of its late submission (contrary to opposition proceedings which is based only on the facts and evidence presented before the OD). Indeed, it is not inconceivable that the evidence may be relevant so as to modify the substance of the contested decision since it was related to the relevant point in time, namely the date on which the application for registration was filed. Since the Court cannot  replace EUIPO in assessing the evidence in question, it annulled the decision and remanded to the BOA.. [stay tuned for decision on whether Fitness is distinctive...].