Fruit of the Loom tastes trademark victory at General Court

Clothing brand Fruit of the Loom has triumphed at the EU General Court after successfully overturning two rulings that said a trademark it owns should be cancelled.

In its decision, the General Court said the Cancellation Division and Second Board of Appeal at the European Union Intellectual Property Office (EUIPO) erred when they ruled that a trademark for the term ‘Fruit’, owned by Fruit of the Loom, should be cancelled.

Kentucky-based Fruit of the Loom applied to register the term in 2006. It was approved in 2007.

Six years later, in 2013 a company called Takko Holding attempted to revoke the mark on the grounds that it had not been put to genuine use for five years.

In response, Fruit of the Loom submitted evidence of use including use of the word ‘fruit’ in “circumstances other than as a mark itself”, and stand-alone use of the mark in the launch of a clothing range called Born in the USA.

In a decision handed down in April 2014, the Cancellation Division at the EUIPO upheld the application to revoke the mark.

It said Fruit of the Loom had used the marks ‘Fruit of the Loom’ and ‘Fruit 1851’ but that these could not be considered acceptable variations. It added that use of the word ‘Fruit’ should be taken into account only when used as a trademark.

The Cancellation Division added that although the mark ‘Fruit’ was affixed on small labels, the primary brand present on the Born in the USA range was the ‘Fruit of the Loom’ mark.

In June 2014, Fruit of the Loom appealed against the decision at the EUIPO’s Second Board of Appeal. The board dismissed the appeal in 2015, prompting Fruit of the Loom to appeal to the General Court.

In its July 7 decision, the General Court said that in the two previous decisions any assessment of the evidence submitted by Fruit of the Loom did not go “beyond a number of mere assertions”.

It added that both decisions insufficiently classified the business circles in which the marketing activities of Fruit of the Loom were directed to as “‘limited’, without giving any further details”.

The court said that the conclusion of the appeal board “is based … on an assessment of the evidence and the circumstances of the case which does not satisfy the criteria”.

The court annulled the previous decisions and ordered the EUIPO to pay Fruit of the Loom’s costs.