Frutaria Innovation v EUIPO: Descriptive marks and figurative elements

The General Court has upheld EUIPO's decision to invalidate the EU figurative trade mark 'Frutaria' for dried and fresh fruits, finding that simple figurative elements cannot salvage a fundamentally descriptive word mark. The judgement reinforces the high threshold for overcoming descriptiveness objections through design features alone.

Frutaria Innovation SL had registered a figurative mark in 2007 comprising the word 'frutaria' in green text, accompanied by a green square, semicircle, wavy line and basic stylisation. The mark covered dried fruits (Class 29), fresh fruits (Class 31) and export services (Class 35). In February 2022, Markus Schneider filed for invalidity based on Articles 7(1)(b) and (c) of the EU Trade Mark Regulation.

The Cancellation Division initially dismissed the application, but the Second Board of Appeal partially annulled this decision, declaring the mark invalid for the fruit products whilst maintaining registration for the export services.

Descriptive character assessment

The Court focused on the Portuguese-speaking public, for whom 'frutaria' directly translates as 'fruit shop'—a place where the relevant goods are sold. The applicant did not dispute this descriptive meaning but argued that the figurative elements provided sufficient distinctiveness.

The Court applied established principles for composite marks, examining whether the figurative elements could divert attention from the descriptive message conveyed by the word element. It found that the green square, semicircle and wavy line were characterised by their 'simple, ordinary and not very stylised representation'. The stylisation of the word itself, rendered in a common font with bold green colouring, was equally unremarkable.

Crucially, the Court held that these elements, considered both individually and collectively, merely emphasised rather than transformed the descriptive character of 'frutaria'. The arrangement served decorative purposes without creating a distinct overall impression capable of indicating commercial origin.

Distinctive character through use

The applicant's attempt to demonstrate acquired distinctiveness through use also failed. Whilst various evidence was submitted—including invoices to Portuguese customers spanning 2001-2022, statements from the company's administration department, third-party declarations, and materials from the 'Fruit Attraction' trade fair—the Court found this insufficient.

The judgement emphasised that proof requires direct evidence of consumer perception, such as surveys, market studies or statements from professional bodies. The invoices and internal statements constituted mere secondary evidence. The third-party company statements, though mentioning public perception, were 'general in nature' with 'nearly identical content', lacking independent corroboration.

The Court rejected arguments that obtaining evidence from end consumers would be impractical, noting that substantial evidence from supermarket chains could have demonstrated exposure amongst the general public. The applicant's reference to a previous revocation proceeding (T-12/20) was dismissed as inapplicable, since invalidity proceedings operate under different principles than revocation cases.

The decision underscores that figurative embellishments must be genuinely distinctive—not merely decorative—to overcome descriptive word elements. It also confirms that acquired distinctiveness requires robust, direct evidence of consumer recognition rather than sales data alone. The judgement serves as a reminder that the examination of invalidity applications must be 'stringent and full' regardless of previous registration or decision-making practice, with each case assessed on its specific merits against applicable legal standards.