Finding no genuine use of the mark Femibion, the General Court disagreed with the EUIPO's Board of Appeal and held that the EUTM for Femibion may be revoked insofar as it was registered for  pharmaceutical preparations as opposed to dietetics. Endoceutics Inc. v EUIPO (T-802/16) of 17 November 2017.

Link to the decision here.

The revocation applicant had argued that the mark not been put to genuine use under Article 51(1)(a) EUTM Regulation (now Article 58(1)(a)) for the class 5 goods "pharmaceutical preparations for immune system support, for menopause, for menstruation, for treatment and management of pregnancy, for the prevention, treatment and management of stress, for the prevention, treatment and management of stress [caused by] ill-balanced or deficient nutrition", but only for dietetic substances adapted for medical use.

The EUIPO Board of Appeal had found that genuine use of the mark had been shown for the aforementioned goods regarding them as a subcategory of pharmaceutical goods. The revocation applicant argued that the evidence submitted showed that the goods covered by the mark were dietetic substances and not pharmaceutical preparations.

The court agreed with the revocation applicant.

The judges explained that it was necessary to examine whether the goods for which use of the mark had been shown were indeed pharmaceutical preparations in the subcategory defined by the EUIPO Board of Appeal. Notably, the revocation applicant had not disputed that genuine use of the mark had been proved in respect of dietetic substances adapted for medical use.

The court also stated that the fact that the definitions of ‘food supplements’ and ‘medicinal products’, as reflected in acts of secondary EU law, may overlap was irrelevant, since the evidence submitted did not support the conclusion that the goods were not only food supplements but also pharmaceutical preparations.

Further, nutritional or food supplements included in Class 5 were not intended to serve as ordinary food, but were consumed to prevent or cure medical problems in the broadest sense or to balance nutritional deficiencies (citing BIONECS, T-262/14). It was also apparent that the goods for which genuine use could be shown were not intended to treat or prevent a disease, but to address nutritional deficiencies resulting from normal physiological processes. Even the exclusive sale of certain goods in pharmacies did not mean that they are necessarily pharmaceutical preparations or medicinal products.

As a result, the court annulled the decision of the EUIPO's Board of Appeal (R 1608/2015-1), in so far as it had maintained registration of the EUTM for "pharmaceutical preparations for immune system support, for menopause, for menstruation, for treatment and management of pregnancy, for the prevention, treatment and management of stress, for the prevention, treatment and management of stress [caused by] ill-balanced or deficient nutrition" in Class 5.