Chiquita’s blue and yellow oval logo declared invalid

The General Court of the European Trademark Office (EUIPO) recently confirmed that the below picture of the "Chiquita label" in blue and yellow (without the CHIQUITA verbal elements) is invalid in respect of fresh fruits:

Though in first instance the EUIPO accepted above label as a logo, Compagnie Financière de Participation, applied to the EUIPO for a declaration that the mark was invalid, arguing that it lacked distinctive character and this case moved all the way up to the General Court.

According to the General Court oval labels are commonly used in the sector of bananas, they are easy to stick onto curved foods. The color scheme - primary colors - are common in the relevant sector. The General Court therefore believes the sign will not be perceived as an indication of commercial origin.

A solution to this could be to prove that the label acquired distinctive power through extensive use.

Chiquita however failed to prove acquired distinctiveness through use: The evidence referred to mostly 4 (instead of 27) EU Member States. Almost every piece of evidence showed the sign with additional figurative or word elements.

Though from a legal perspective this might be a sound decision (acquired distinctives in the whole EU is always difficult to evidence) we do believe that this oval label can serve as a trademark. One element of the arguments filed by Chiquita does prove this. Just have a look at below labels:

These stickers were used by Chiquita following a design contest to distinguish the CHIQUITA bananas from those of other undertakings. Chiquita believes they have been able to do that because the public recognizes the contested trademark independently of its different (creative!) elements, directly associating it with the Chiquita brand.

Strong argument! We would indeed instantly perceive bananas with the above labels to be CHIQUITA bananas. This was however not enough to convince the General Court. 

Author: Erik Stegeman

Bio: Erik Stegeman is a trademark attorney and specialist in trademark protection for bands, DJs and artists. His client portfolio includes many famous DJ’s like Charlotte de Witte, Swedish House Maffia and Tiësto. He writes a lot about music trademark infringements. And if you are lucky, he will give you hints on the latest band and DJ’s.