In Case T-567/12, Kaatsu Japan Co. Ltd filed the CTM application KAATSU for various goods and services in Classes 9, 10, 16, 28, 41 and 44 of the Nice Agreement.

The examiner considered that the relevant public was the general public in Europe and that the sign KAATSU could be understood in most European languages and the word was used to describe a method of physical exercise. Therefore it rejected it for Class 9: ‘Scientific, measuring and teaching apparatus and instruments; pre-recorded videotapes, compact disks (CDs), laser disks (LDs), digital versatile disks (DVDs) and computer software; parts and fittings for all the aforesaid goods’;    Class 10: ‘Surgical, medical and veterinary apparatus and instruments, orthopaedic articles; apparatus for physical training for medical use; parts and fittings for all the aforesaid goods’; Class 16: ‘Paper, cardboard and goods made from these materials, not included in other classes; printed matter; instructional and teaching material (except apparatus); parts and fittings for all the aforesaid goods’;  Class 28: ‘Gymnastic and sporting articles not included in other classes; training and exercise equipment for fitness purposes; parts and fittings for all the aforesaid goods’;  Class 41: ‘Education; providing of training; entertainment; sporting and cultural activities; educational services; providing seminars and workshops; training instructors in the field of physical training; qualification of instructors in the field of physical training; provision of information, advisory and consultancy services in relation to all of the aforesaid services’; Class 44: ‘Medical services; veterinary services; hygienic and beauty care for human beings or animals; providing medical information; physical therapy services; kinesitherapy services; provision of information, advisory and consultancy services in relation to all of the aforesaid services’.

The Second Board of Appeal and the General Court dismissed the appeals. The mark applied for related to an exercise method or technique which induces muscle hypertrophy and increases muscle strength, essentially by applying a controlled reduction of blood flow to the muscles exercised by means of compressing the proximal vasculature and related areas, and the term ‘kaatsu’ referred to that method and informed the consumer directly and without the need for further reflection on his part about the goods and services in question. The mark applied for was neither merely suggestive nor allusive, but directly descriptive of certain characteristics of the goods and services offered by the applicant. Therefore the mark applied for is descriptive in character, within the meaning of Article 7(1)(c) of Regulation No 207/2009. Furthermore, the applicant had failed to show that the mark applied for had acquired distinctiveness through use.