CANCELLATION No 34 563 C (INVALIDITY)

Landgard eG, Veilingstr. A1, 47638 Straelen-Herongen, Germany (applicant), represented by Dompatent von Kreisler Selting Werner - Partnerschaft von Patentanwälten und Rechtsanwälten mbB, Deichmannhaus am Dom, Bahnhofsvorplatz 1, 50667 Köln, Germany (professional representative)

a g a i n s t

Looye Kwekers Holding B.V., Vlietboomgaard 10, 2672 JA Naaldwijk, Netherlands (EUTM proprietor), represented by Merkenbureau Knijff & Partners B.V., Leeuwenveldseweg 12, 1382 LX Weesp, Netherlands (professional representative).

On 28/09/2020, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is upheld.

2. European Union trade mark No 9 770 801 is declared invalid in its entirety.

3. The EUTM proprietor bears the costs, fixed at EUR 1 080.

REASONS

The applicant filed an application for a declaration of invalidity against European Union trade mark No 9 770 801 ‘HONIGTOMATEN’ (word mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 31: Agricultural, horticultural and forestry products (neither prepared, nor processed), and grains, not included in other classes; fresh fruits and vegetables, in particular tomatoes and seeds, cuttings, parts and other starting materials thereof; seeds for sowing; live plants and flowers.

Class 35: Advertising, promotion and business mediation with regard to the purchase and sale and import and export of agricultural, horticultural and forestry products, grains, fresh fruits and vegetables.

Class 44: Propagation, improvement, cultivation and selection, including via substrates, tissue culture and hydroculture, of agricultural, horticultural and forestry products, grains, fresh fruits and vegetables.

The applicant invoked Article 59(1)(a) EUTMR in conjunction with Article 7(1)(b) and (c) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that ‘HONIGTOMATEN’ (translated into English as ‘honey tomatoes’) can be perceived as referring to a specific tomato variety with the designation ‘Mexikanische Honigtomate’ (also referred to as ‘Miel du Mexique’), which existed before the filing of the contested EUTM. German-speaking consumers will understand the word ‘HONIG’ as a descriptive indication referring to a tomato with a sweet taste, and ‘HONIGTOMATEN’ as a generic term for a specific kind of tomato. They will not perceive it as a trade mark.

In support of its observations, the applicant filed the following evidence.

 Annex 1.1: copy of a seed packet for the variety ‘HONIGTOMATE’ (also referred to as ‘Miel du Mexique’ on the packaging). The product is from ‘Quedlinburguer’, a company that trades in plant seeds.

 Annex 1.2: copy of a seed packet for the variety ‘HONIGTOMATE’ (also referred to as ‘Solanum lycopersicum’ and ‘Miel du Mexique’ on the packaging). The label is written in German (accompanied by a translation into English) and describes that variety as a well-known variety of cherry tomato with an extraordinarily sweet taste.

 Annexes 1.3 - 1.6: printouts from various German websites where tomatoes identified as ‘Mexican honey tomatoes’ (Mexikanische Honigtomaten) are offered for sale. All the printouts are written in German and accompanied by a partial translation into English where the characteristics of the Mexican honey tomatoes are described. The printouts in Annex 1.3 date from 01/04/2019 and those in Annexes 1.4-1.6 from 28/03/2019. The first example in Annex 1.3, from www.irinas-shop.de, includes a comment on its second page (translated into English) that Mexican honey tomatoes were first included in the catalogue on 22/11/2008 (before the date of filing of the contested mark).

 Annex 2.1 - 2.5: printouts from various websites, in German with a partial translation into English. They contain references to ‘HONIGTOMATEN’ (translated as ‘Honey tomatoes’), which are described as tomatoes characterised by their sweetness. The printouts date from 02/04/2019 or are undated.

The EUTM proprietor argues that the German term ‘HONIG’ is not descriptive for tomatoes since it does not directly communicate a property of the goods, that is to say, it is not an accurate description of the taste. Since sweetness is a component of honey, the consumer may assume, upon closer inspection of the mark, that the element ‘HONIG’ communicates a certain trait of the goods.

As far as the German market is concerned, at the time of filing the application for registration of the contested EUTM the expression ‘Mexikanische Honigtomate’ was not used as an indication of a species of tomato. Neither was it registered as a variety name. The only variety name found in the CPVO register is ‘Miel due Mexique’. The evidence filed by the applicant dates from before 12/07/2010, except for use by the company Quedlingburger (against which use an action in Germany is currently being prepared). The other evidence merely proves that at one time the word ‘HONIGTOMATE(N)’ may have been used as a description for a type of tomatoes in Germany. However, this practice has gone into disuse and the word ‘HONIGTOMATE(N)’ is now almost exclusively used with reference to the proprietor’s goods. Furthermore, this use was made for the purchase of seeds and on websites specifically aimed at this. Consumers who buy seeds to grow their own tomatoes form an entirely different, limited and very specific group. For the average consumer, the term ‘HONIGTOMATEN’ is completely unknown and unusual.

Due to the intense and widespread use of the word ‘HONIGTOMATEN’ by the proprietor, the trade mark has acquired distinctiveness on the German market. Searches in Google show that in 2010 the term ‘HONIGTOMATE(N)’ was used by various companies for tomato seeds, but the current results almost exclusively refer to the proprietor’s products.

In support of its observations, the proprietor filed the following evidence.

 Annex 1: printout of the first three pages of hits on www.google.de, which, according to the proprietor, show that the algorithms used by Google link ‘HONIGTOMATEN’ to the proprietor and not to a specific type of tomato.

The proprietor points out that in the first two pages of hits ‘HONIGTOMATEN’ is related exclusively to the proprietor’s goods and as a trade mark. There are a few sporadic hits that refer to ‘Mexikanische Honigtomate’, which is not identical to the proprietor’s mark. In those cases, the hits target a small and specific group of consumers and the amount of traffic to these links seems very low.

 Annexes 2-10 and 12-14: printouts from the hits listed in Annex 1. According to the proprietor, Annexes 2-6, 8 and 10 show the proprietor’s products, identified with a figurative sign that includes the term ‘HONIGTOMATEN’, and Annexes 12-14 are linked to the proprietor. Annex 7 (printout from the website www.ebay.de) refers to seeds and not tomatoes, targeting, according to the proprietor, a very specific consumer and not the average German consumer that buys tomatoes in the supermarket. Annex 9 (printout from www.rote-tomaten.de) is from a website that has not changed since 2016, indicating that it cannot generate much traffic.

 Annex 11: printout from https://de.rec.garten.narkiven.com which shows a forum written in German. According to the proprietor it shows a discussion in which the users agree that ‘Honigtomaten’ is a trade mark and not a cultivar.

 Annex 15: extracts from various websites (according to the proprietor from 2012) with references to tomatoes identified under the signs and . Also, printouts from the proprietor`s website with images of tomatoes and dishes prepared with tomatoes.

 Annex 16: images of an advertising panel showing the figurative sign and images of stands and trade fairs for the promotion of the proprietor’s goods. The sign ‘LOOIJE’ is mainly visible. Extracts from various websites with news about the proprietor goods, all written in German.

 Annexes 17 and 18: letter from the proprietor’s attorney to Edeka (a supermarket chain in Germany) claiming that ‘HONIGTOMATEN’ is a registered trade mark and that it should only be used as such. Additionally, a letter from Edeka confirming the proprietor’s rights and another cease and desist letter. These are written in German and are accompanied by their translation into English.

 Annex 19: presentation by the proprietor about ‘HONIGTOMATEN’, dating from 2014, which includes an image of a car with the figurative sign and stands for the promotion of tomatoes also identified under that sign.

 Annex 20: presentation by the proprietor about ‘HONIGTOMATEN’, dating from 2015, which includes extracts (dated 2015) from various websites with news referring to ‘HONIGTOMATEN’, all written in German.

 Annex 21: presentation by the proprietor about ‘HONIGTOMATEN’, dating from 2016, which includes a list of trade fairs from 2016 and images of stands for the promotion of tomatoes, identified under the figurative sign . Also, extracts from various websites with references to ‘HONIGTOMATEN’, all written in German.

 Annex 22: presentation by the proprietor about ‘HONIGTOMATEN’, dating from 2017, which includes an example of an award received by the proprietor in 2017; two extracts from the research companies WHY5 and Novio Research with the results of a survey on the brand awareness of ‘HONIGTOMATEN’; extracts from various websites with images of the applicant’s goods (in packages) and images of stands for the promotion of goods identified under figurative ‘HONIGTOMATEN’ signs.

 Annex 23: presentation by the proprietor about ‘HONIGTOMATEN’, dating from 2018, which includes various examples of awards received by the proprietor in 2018; images of the applicant’s goods in supermarkets, and extracts from various websites with images of the applicant’s goods (in packages); images of promotional panels and advertising in magazines as well as images of stands with the figurative signs ‘HONIGTOMATEN’.

 Annex 24: presentation by the proprietor about ‘HONIGTOMATEN’, dating from 2019, which includes an example of an award received by the proprietor in 2019; a list of videos uploaded to ‘YouTube’ for the promotion of the applicant’s goods; documents of unknown origin named ‘consumer price promotions at ‘HIT’’, ‘consumer price promotions at REWE’ and ‘consumer price promotions at ‘REWE’ West’; document of unknown origin showing the date of an online campaign with examples of advertising panels; images of stands for the promotion of the proprietor’s goods in supermarkets; invoices, emails, and other documents, all written in German.

 Annex 25: presentation by the proprietor entitled ‘HONIGTOMATEN’ Sales volume Germany’ with a graph showing the sales volume during the period 2010-2018.

In reply, the applicant argues that German consumers perceive ‘HONIG’ as an indication of quality since according to German language rules, the indication of quality is at the beginning of composite words. It also reiterates that ‘HONIG’ is an indication of sweet taste. The proprietor acknowledges that the expression ‘mexikanische Honigtomate’ was used as a designation of a tomato species at the time of the filing of the contested EUTM. This finding is sufficient to render the trade mark liable to cancellation. At the time of filing of the contested EUTM, the expression ‘HONIGTOMATEN’ designated the kind and quality of the goods registered. The fact that the name of the tomato species is ‘mexikanische Honigtomate’ does not plead against the finding of descriptiveness for the contested trade mark, because consumers are likely to omit the geographical indication and to shorten the signs.

The evidence provided by the proprietor is insufficient to prove that the contested EUTM has acquired distinctiveness in Germany. In particular, the proprietor has not provided evidence which allows for an evaluation of the market strength of the contested EUTM in the relevant market. The proprietor has not provided market figures, advertising spending or a market survey. The only figures disclosed are the sales figures for the German market, which allegedly rose from 600 000 kilos in 2010 to over 1.8 million kilos in 2018. This is only a tiny fraction of the relevant market, considering that the yearly total volume in Germany is 2.2 billion kilos according to the survey from Survey institute Statista included as Annex 3.

It its final observations, the EUTM proprietor claims that the applicant failed to prove that ‘HONIG’ is used as a synonym for sweet in German. Although the word ‘HONIG’ alludes to sweet, it is not descriptive. The proprietor reiterates that the German expression ‘mexikanische Honigtomaten’ was, for a time, the translation used on the market for the plant variety ‘Miel du Mexique’. However, the applicant has not proven that the German public would be likely to shorten the name ‘mexikanische Honigtomaten’ to ‘Honigtomaten’. In relation to the evidence of acquired distinctiveness contested by the applicant, the proprietor claimed that its research has shown that the volume of fresh tomatoes in Germany is much lower than 2.2 billion kilos, namely 455 million kilos. Of this, ‘HONIGTOMATEN’ has a market share of 0.32 % (Annex 1). However, from a total market of EUR 1.4 billion, ‘HONIGTOMATEN’ has a share of 2.6 %, with EUR 37.5 million in sales (Annex 2). This market is only 2.6 % of the entire market (Annex 3), but this is the market that has visible brands and is most prominently featured in commercials and other media.

ABSOLUTE GROUNDS FOR INVALIDITY — ARTICLE 59(1)(a) EUTMR IN CONJUNCTION WITH ARTICLE 7 EUTMR

According to Article 59(1)(a) and (3) EUTMR, a European Union trade mark will be declared invalid on application to the Office, where it has been registered contrary to the provisions of Article 7 EUTMR. Where the grounds for invalidity apply for only some of the goods or services for which the European Union trade mark is registered, the latter will be declared invalid only for those goods or services.

Furthermore, it follows from Article 7(2) EUTMR that Article 7(1) EUTMR applies notwithstanding that the grounds of non‑registrability obtain in only part of the Union.

As regards assessment of the absolute grounds of refusal pursuant to Article 7 EUTMR, which were the subject of the ex officio examination prior to registration of the EUTM, the Cancellation Division, in principle, will not carry out its own research but will confine itself to analysing the facts and arguments submitted by the parties to the invalidity proceedings.

However, restricting the Cancellation Division to an examination of the facts expressly submitted does not preclude it from also taking into consideration facts that are well known, that is, that are likely to be known by anyone or can be learned from generally accessible sources.

Although these facts and arguments must date from the period when the European Union trade mark application was filed, facts relating to a subsequent period might also allow conclusions to be drawn regarding the situation at the time of filing (23/04/2010, C‑332/09 P, Flugbörse, EU:C:2010:225, § 41, 43).

The contested EUTM was filed on 28/02/2011 and registered on 07/07/2011. It is the word mark ‘HONIGTOMATEN’, registered for the aforementioned goods and services. Therefore, the relevant point in time in respect of which the assessment of the claimed descriptive and non-distinctive character of the sign must be made is 28/02/2011.

As the applicant claimed, the contested mark ‘HONIGTOMATEN’ is formed by the German words ‘HONIG’ and ‘TOMATEN’ the meanings of which, described below, will be perceived by the relevant German-speaker. Consequently, the Cancellation Division considers appropriate to assess whether the contested EUTM has been registered contrary to the provisions of Article 7 EUTMR with regard to the German-speaking consumer.

Moreover, in light of the nature of the relevant goods and services, the relevant public includes both the public at large and the professional public. Therefore, the level of attention is expected to vary from average to high.

Descriptiveness — Article 7(1)(c) EUTMR

Under Article 7(1)(c) EUTMR, ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services’ are not to be registered.

Therefore, Article 7(1)(c) EUTMR pursues the aim, which is in the common interest, of ensuring that signs or indications which describe the categories of goods or services in respect of which registration is applied for remain available. Hence, this provision does not permit such signs or indications to be reserved for use by one undertaking as a result of their registration as a trade mark (12/02/2004, C‑265/00, Biomild, EU:C:2004:87, § 35).

The descriptive character of a trade mark must be assessed in relation to the goods or services in respect of which the trade mark is registered and in relation to the perception of the sign by the relevant public (20/03/2002, T‑356/00, Carcard, EU:T:2002:80, § 25).

According to settled case-law, the signs and indications referred to in Article 7(1)(c) EUTMR are those which may serve in normal usage, from a consumer’s point of view, to designate, either directly or by reference to one of their essential characteristics, goods or services such as those in respect of which the contested EUTM is registered (22/06/2005, T‑19/04, Paperlab, EU:T:2005:247, § 24).

In accordance with the same case-law, for a sign to be caught by the prohibition set out in Article 7(1)(c) EUTMR, there must be a sufficiently direct and specific relationship between the sign and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods in question or one of their characteristics (22/06/2005, T‑19/04, Paperlab, EU:T:2005:247, § 25).

Article 7(1)(c) EUTMR does not apply to those terms which are only suggestive or allusive as regards certain characteristics of the goods and services.

The contested mark ‘HONIGTOMATEN’ is formed by the German words ‘HONIG’ and ‘TOMATEN’ which will be perceived as ‘honey’ and ‘tomato’ respectively (information extracted from Pons on 08/09/2020 at https://en.pons.com/translate/german-english/honig and https://en.pons.com/translate/english-german/tomato.

According to the applicant, the contested EUTM will be perceived as referring to tomatoes with a sweet flavour, reminiscent of honey, and therefore this sign will be associated with a type of tomato and not perceived as a trade mark. In order to prove its arguments, the applicant filed the aforementioned evidence.

While it is true that the applicant’s reasoning is not particularly exhaustive, the following conclusions can be reached on the basis of facts that are well known, that is, that are likely to be known by anyone or can be learned from generally accessible sources, such as dictionaries.

It is common in German to use different names to refer to each of the various types of tomatoes, according to their particularities. For example, Datteltomaten, Fleischtomaten, Flaschentomaten, Kirschtomaten or Cocktailtomaten. The same happens with other types of fruits and vegetables, such as oranges or melons. Indeed, Honigmelone is a kind of melon that is popular among the relevant public, which is characterised by its sweetness.

The documents provided by the applicant show the use of ‘HONIGTOMATEN’ in relation to a concrete variety of tomatoes, characterised by its sweetness. Indeed, Annexes 2.1 and 2.2. clearly refer to ‘HONIGTOMATEN’ as a variety of tomatoes (even though these are the proprietor’s products). Annex 1.3 shows that ‘mexikanische Honigtomate’ was already available in 2008, and the EUTM proprietor itself claimed that all the references provided by the applicant predate the application.

Most of the documents refer to ‘mexikanische Honigtomate’. The proprietor claimed that at the time of filing the application, ‘Miel due Mexique’ was a variety name found in the CPVO register. This variety is commonly known as ‘Mexican honey tomato’ (in German, ‘mexikanische Honigtomate’). This expression is, therefore, used as an indication of a variety of tomato.

Part of the evidence provided by the applicant shows the use of the word ‘Honigtomaten’ only, that is, with independence from the locative Mexican (mexikanische), referring to a tomato variety. Therefore, even if it is used independently, the public will perceive it as a tomato variety, the word ‘mexikanische’ only being perceived as an indication of geographical origin.

With this in mind, it can easily be assumed that the contested mark would be perceived by the relevant public, without any further reflection, as describing another type of tomato, characterised by its sweet flavour.

Furthermore, part of the evidence provided by the proprietor confirms that the term is not perceived as a trade mark. For instance, the printout from the website www.essen-und-trinken.de mentions ‘Honigtomaten’ without any indication of a trade mark under the heading Tomaten-Sorten (tomato varieties) and shows them alongside other tomato varieties. The excerpt from Ebay Kleinanzeigen also shows various offers concerning seeds for ‘Mexikanische Honigtomate’ or ‘Honigtomaten’.

The proprietor argued that the expression ‘HONIGTOMATEN’, shown in the evidence provided by the applicant, was used for the purchase of seeds on websites specifically aimed at this. Consumers who buy seeds to grow their own tomatoes form an entirely different, limited and very specific group. Therefore, for the average consumer, the term ‘Honigtomaten’ is completely unknown and unusual. However, the Cancellation Division does not agree with this argument. Firstly, part of the evidence filed by the applicant, namely Annexes 2.1 and 2.2, show use of the expression ‘Honigtomaten’ in relation to tomatoes (fruits), directed at the public at large. Moreover, both tomatoes and seeds, can target the same public (i.e. the general public).

Consequently, the expression ‘HONIGTOMATEN’ will immediately inform consumers, without further reflection, that these goods are tomatoes with a sweet flavour, reminiscent of honey, or that the services have as an object or purpose, sweet tomatoes. Therefore, it conveys obvious and direct information regarding a characteristic of the claimed goods and services, namely their intended nature or purpose. The objection also applies for those goods and services that are directly linked or closely related to those for which the descriptive meaning pertains.

Therefore, the relevant consumer would perceive the sign as providing information about the kind of the aforementioned goods and services in question. It is immaterial that the EUTM might be understood in other ways. On the contrary, according to Article 7(1)(c) EUTMR, a sign must be refused registration if at least one of its possible meanings designates a characteristic of the goods or services concerned (23/10/2003, C‑191/01 P, Doublemint, EU:C:2003:579, § 32).

It follows that the EUTM contains obvious and direct information in relation to the goods and services it is registered for, and thus constitutes a descriptive indication of the kind of the goods and the object of the services in question within the meaning of Article 7(1)(c) and Article 7(2) EUTMR.

Consequently, the trade mark as a whole is descriptive of the registered goods and services, and therefore the contested EUTM has been registered contrary to Article 7(1)(c) EUTMR.

Non-distinctiveness — Article 7(1)(b) EUTMR

Under Article 7(1)(b) EUTMR, ‘trade marks which are devoid of any distinctive character’ are not to be registered. Thus Article 7(1)(b) EUTMR pursues the aim, which is in the common interest, of ensuring that signs serve to identify the product and/or services in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings.

The marks referred to in Article 7(1)(b) EUTMR are, in particular, those that do not enable the relevant public ‘to repeat the experience of a purchase, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition of the goods or services concerned’ (27/02/2002, T‑79/00, Lite, EU:T:2002:42, § 26). This is the case for, inter alia, signs commonly used in connection with the marketing of the goods or services concerned (15/09/2005, T‑320/03, Live richly, EU:T:2005:325, § 65).

The applicant argues that the contested mark is devoid of distinctive character as the expression composing the sign is descriptive in relation to the contested goods and services. The applicant’s arguments regarding the lack of distinctiveness of the contested mark are the same as those concerning the descriptive character of the mark in relation to the goods and services. Moreover, they are based on the assumption that the contested sign is descriptive of the nature of the relevant goods and services.

Given that the sign has a clear descriptive meaning in relation to the goods and services it is registered for, it is also devoid of any distinctive character within the meaning of Article 7(1)(b) and Article 7(2) EUTMR in relation to these goods and services, as it is incapable of performing the essential function of a trade mark, which is to distinguish the goods or services of one undertaking from those of other undertakings.

Consequently, the contested trade mark is devoid of any distinctive character and has been registered contrary to Article 7(1)(b) EUTMR for all the registered goods and services.

Acquired distinctiveness

The applicant claimed that at the time of filing of the contested mark the word ‘Honigtomate(n)’ may have been used as a description for a type of tomatoes in Germany. However, this practice has gone into disuse and the word ‘Honigtomate(n)’ is now almost exclusively used with reference to the proprietor’s goods. It further claimed that due to the intense and widespread use of the word ‘HONIGTOMATEN’ by the proprietor, the trade mark has acquired distinctiveness on the German market.

It is up to the EUTM proprietor to demonstrate to the Cancellation Division that its EUTM had acquired distinctive character in the European Union where the absolute ground for refusal arose, either by the application date of the EUTM on 28/02/2011, between the application date and the date of registration of the mark on 07/07/2011 or between the date of registration of the mark and the application for declaration of invalidity on 02/04/2019.

The precise purpose of this criterion is to maintain the registration of those marks that, due to the use that has been made of them, have in the meantime — that is to say, after their registration and in any event before the application for an invalidity request — acquired distinctive character for the goods or services for which they were registered, in spite of the fact that, when registration took place, they were contrary to Article 7 EUTMR (14/12/2011, T‑237/10, Clasp lock, EU:T:2011:741, § 52-53, 86; 15/10/2008, T‑405/05, Manpower, EU:T:2008:442, § 127, 146; 10/12/2008 T‑365/06, BATEAUX MOUCHES, EU:T:2008:559, § 37-38).

Evidence of acquired distinctiveness must be examined as a whole, taking into account, in particular, the market share held by the trade mark, and the intensity, frequency and duration of use of the mark. The evidence must establish that a significant proportion of the relevant public is able, by virtue of that mark, to identify the goods concerned as originating from a particular undertaking. Evidence from non-EU states is irrelevant, except insofar as it might enable conclusions to be drawn about use within the EU (24/06/2014, T‑273/12, Ab in den Urlaub, EU:T:2014:568, § 45).

The requirements to prove acquired distinctiveness through use are not the same as those needed to prove genuine use pursuant to Article 59(2) EUTMR. Whilst for proof of acquired distinctiveness it is necessary to prove qualified use (that the relevant public perceives as distinctive a sign that, per se, is devoid of distinctive character), the reason behind the proof of genuine use is completely different (namely to restrict the number of trade marks registered and protected, and consequently the number of conflicts between them).

Furthermore, the Court has held that the case-law relating to Article 7(3) EUTMR must not be confused with the case-law relating to the acquisition of reputation (which must be proven in a substantial part of the European Union but not in every Member State). The applicant must prove the acquisition of distinctive character through use in the part of the European Union in which the contested mark was devoid of any distinctive character (21/04/2015, T‑359/12, Device of a checked Pattern (maroon & beige), EU:T:2015:215, § 119-120).

Therefore, the EUTM proprietor must submit evidence that enables the Office to find that at least a significant proportion of the relevant section of the public identifies the products and services concerned as originating from a particular undertaking because of the trade mark (15/12/2015, T‑262/04, Briquet à Pierre, EU:T:2005:463, § 61 and the case-law cited therein).

The evidence must be clear and convincing. The EUTM proprietor must clearly establish all the facts necessary to safely conclude that the mark has been used as a badge of origin, that is to say, that it has created a link in the mind of the relevant public with the goods or services provided by a specific company, despite the fact that, in the absence of such use, the sign at issue would lack the necessary distinctiveness to create such a link.

The documents filed by the proprietor show certain use and promotion of the mark, particularly Annexes 16, 19 and 21-25. However, this information is too general to allow specific conclusions to be drawn about public recognition of the contested mark. The evidence provided by the proprietor does not contain enough information on the turnover, commercial volume, advertisement expenses or market share acquired by the contested EUTM. Indeed, the market share pointed out by the EUTM proprietor in its arguments of 08/05/2020 and the information contained in the graph, of unknown origin, showing the sales volume for the period 2010-2018 (Annex 25), is not confirmed by any other additional evidence.

Although some documents show some investment in publicity for the contested sign – such as the images of stands and participation in trade fairs, advertising panels, bags, company car – there is not proof that confirms the consumers’ perceptions. Annex 22 includes two extracts showing the results of a survey on the brand awareness of ‘HONIGTOMATE’. It shows that at the end of 2017 and January 2018 only 10 % of the 567 people interviewed recognised ‘HONIGTOMATEN’ in relation to fresh tomatoes. Furthermore, this document is not supported by enough information (translated into the language of the proceedings) as to the parameters and method applied in the survey. Therefore, it has not enough weight as proof of the public awareness on the contested mark.

It follows that the Office is not able to establish whether the evidence proves that the trade mark acquired distinctiveness in any of the relevant periods.

For the sake of completeness, the Cancellation Division points out that there is no evidence relating to the Austrian territory where German is also officially spoken. Acquired distinctiveness must be established throughout the territory in which the trade mark did not ab initio have distinctive character (22/06/2006, C‑25/05 P, Bonbonverpackung, EU:C:2006:422, § 83, 86; 29/09/2010, T‑378/07, Représentation d’un tracteur en rouge, noir et gris, EU:T:2010:413, § 30).

Consequently, acquired distinctiveness was not demonstrated by the EUTM proprietor.

Conclusion

In the light of the above, the Cancellation Division concludes that the application is totally successful and the contested EUTM should be declared invalid for all the contested goods and services.

COSTS

According to Article 109(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party. Since the EUTM proprietor is the losing party, it must bear the cancellation fee as well as the costs incurred by the applicant in the course of these proceedings.

According to Article 109(1) and (7) EUTMR and Article 18(1)(c)(ii) EUTMIR, the costs to be paid to the applicant are the cancellation fee and the costs of representation, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Elena NICOLÁS GÓMEZ

Ana MUÑIZ RODRIGUEZ

Martin LENZ

According to Article 67 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Cancellation Division on request. According to Article 109(8) EUTMR, such a request must be filed within one month of the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.