Chiquita Case: The Blue and Yellow Sticker Cannot Be Registered as a Trademark. The Decision of the General Court of the European Union
Can a Simple Geometric Figure Possess Distinctive Character?
This is the issue addressed in the judgment of 13 November 2024 (T-426/23) of the General Court of the European Union, which confirmed the invalidity of the trademark registered by Chiquita Brands LLC for the blue and yellow sticker attached to fresh fruit, including bananas. This judgment, the result of a long legal process, provides significant insights into the concept of distinctiveness in trademarks.
The matter originates from an application submitted by Compagnie Financière de Participation to the EUIPO on 14 May 2020 for a declaration of invalidity of the figurative trademark consisting of a simple blue oval with a yellow border. The trademark was originally filed in 2008 by Chiquita Brands LLC for a wide range of products, including meat, fish, fresh fruit and fruit juices (Classes 29, 30, 31, and 32). According to Compagnie Financière de Participation, the trademark was devoid of any distinctive character and consequently invalid pursuant to Article 7(1)(b) of Regulation 207/2009.
The application for a declaration of invalidity was upheld in November 2021 by the EUIPO Cancellation Division. This decision was immediately appealed by Chiquita Brands before the competent Board of Appeal, which confirmed the invalidity of the trademark in relation to fresh fruit but recognised the validity of the sign for other products, such as those in Classes 29 and 32 (fruit juices and other packaged foods). In particular, the Board considered that the contested mark lacked distinctiveness, being essentially a simple geometric shape — an oval — with colours commonly used in the fruit and vegetable market.
The matter thus came before the General Court of the European Union, which upheld the EUIPO’s position.
On the Shape of the Contested Trademark
As for the shape, Chiquita Brands argued in court that it was a “significantly more detailed” form that could not be considered a basic geometric shape. Specifically, the mark was said to consist of three differently shaped elements: a blue “ovaloid” inner shape, framed by a “thin yellow ovaloid,” itself framed by a “thin blue ovaloid.” According to the applicant, this combination resembled a racetrack and conferred distinctive character on the contested trademark.
However, this argument was not accepted by the General Court, which confirmed the EUIPO’s position that the sign was made up of a simple geometric figure, not capable of conveying a message that consumers could remember and therefore not suitable to serve as an indication of commercial origin. In the present case, it was also noted that oval-shaped labels are commonly used in the banana sector, as they are easy to attach to curved fruit, and therefore the sign would be perceived as a mere decorative element.
On the Colour Combination of the Contested Trademark
Also in this regard, the General Court of the European Union agreed with the position of the EUIPO Board of Appeal: the combination of the primary colours blue and yellow is frequently used in the marketing of fresh fruit and, although the applicant argued that the use of a specific geometric shape was sufficient to enhance the distinctiveness of the mark, the EUIPO pointed out that colours by their nature hardly convey precise information, especially when they are commonly used in the marketing of products and services in a specific sector.
The Requirements for Acquiring Secondary Meaning
During the proceedings, Chiquita Brands attempted to argue that the contested sign had nonetheless acquired secondary meaning due to its widespread use in the market. In particular, the company sought to demonstrate that consumers in Belgium, Germany, Italy and Sweden were well-acquainted with the contested mark and, even in the absence of word elements, associated it with Chiquita Brands. However, in support of the rejection of the appeal, the Court found that:
the acquisition of distinctiveness had been proven only with respect to four Member States and could not be automatically extended to the other countries of the European Union;
the evidence provided by the applicant did not refer to the purely figurative mark for which registration was sought, but to a composite mark consisting of additional figurative and, above all, word elements, particularly the word “Chiquita.”
Therefore, the General Court of the European Union rejected Chiquita Brands’ appeal, finding that the acquired distinctiveness of the mark had not been proven.