22 November 2018Trademarks

EU court dismisses Fruit of the Loom trademark appeal

The EU General Court has today delivered a blow to American clothing brand Fruit of the Loom in a dispute centring on the trademark ‘Fruit’.

Fruit of the Loom applied to register ‘Fruit’ as an EU trademark in 2006, covering clothing, footwear, and headgear in class 25. The European Union Intellectual Property Office (EUIPO) registered the mark the following year.

In 2013, Takko Holding, a fashion company established in Germany, asked the EUIPO to revoke the trademark on the grounds that it had not been put to genuine use for a continuous period of five years.

Fruit of the Loom submitted evidence to establish that the mark had been used between 2008 and 2013.

The evidence showed that the ‘Fruit’ mark was featured within other trademarks used during the period, and that the standalone ‘Fruit’ mark was used in preparatory works for the launch of a clothing range called Born in the USA.

However, in 2014, the Cancellation Division upheld the application for revocation, and the Second Board of Appeal upheld the decision the year after.

On appeal, Fruit of the Loom disputed the board’s assessment of whether there had been genuine use of ‘Fruit’ as a standalone trademark. The clothing brand did not dispute the board’s findings in relation to ‘Fruit’ as featured within other trademarks.

In 2016, the General Court annulled the board’s decision, finding that it had been based “on an assessment of the evidence and the circumstances of the case which does not satisfy the criteria” required in such proceedings.

The court referred the matter back to the EUIPO but, in 2017, the Fourth Board of Appeal dismissed Fruit of the Loom’s appeal again and ordered the clothing brand to pay the costs of the cancellation and appeal proceedings.

The board found that the mark had not been put to genuine use, as Fruit of the Loom’s evidence could not be classified as genuine in light of the low volume of goods bearing the contested mark.

Fruit of the Loom again appealed against the decision, claiming that the board was wrong to reach this conclusion in relation to the mark’s genuine use.

Today, the General Court sided with the EUIPO, and said that “the smaller the commercial volume of the use of the mark, the more necessary it is for the proprietor of the mark to produce additional evidence to dispel any doubts as to the genuineness of its use”.

The clothing brand had also claimed that the board based its primary reasoning on the fact that Fruit of the Loom had stopped the launch of the Born in the USA range, and that this should not be the only determining factor in the decision.

But the court said that the board had not based its primary reasoning on this.

“On the contrary, it only took account of that decision by the applicant following an assessment of the evidence provided as a whole, without that commercial decision being the sole decisive factor for its assessment,” the court found.

Overall, Fruit of the Loom failed to establish that the board had made an error of assessment in reaching its conclusion that the clothing brand had not proved genuine use of the trademark, the court said.

The General Court dismissed Fruit of the Loom’s appeal and ordered the clothing brand to pay the costs.

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More on this story

14 July 2016   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.
29 June 2017   Apparel company Fruit of the Loom has sued a Texas-based clothing company over the use of a fruit trademark on clothing.