CANCELLATION No 11 951 C (INVALIDITY)

MAPA GmbH, Indutriestr. 21-25, 27404 Zeven, Germany (applicant), represented by Hauck Patentsanwaltspartnerschaft MBB, Kaiser-Wilhelm-Straße 79-87, 20355 Hamburg, Germany (professional representative)

a g a i n s t

Montecristo International Investments, S.A.R.L., 11A, Boulevard Joseph II, Luxembourg, Luxembourg, represented by Fernando Antas da Cunha, Av. Fontes Pereira de Melo, n.º 6, 7.º, Lisbon, Portugal (professional representative).

On 09/09/2016, the Cancellation Division takes the following

DECISION

1. The application for a declaration of invalidity is rejected in its entirety.

2. The applicant bears the costs, fixed at EUR 450.

REASONS

The applicant filed an application for a declaration of invalidity against European Union trade mark No 11 480 101 (figurative mark) (the EUTM). The request is directed against all the goods and services covered by the EUTM, namely:

Class 5: Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic food and substances adapted for medical or veterinary use, food for babies; Dietary supplements for humans and animals; Plasters, materials for dressings; Material for stopping teeth, dental wax; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides; Sugar for medical purposes; Dental abrasives; Acaricides; Aluminium acetate for pharmaceutical purposes; Acetates for pharmaceutical purposes; Gallic acid for pharmaceutical purposes; Acids for pharmaceutical purposes; Aconitine; Fly glue; Adhesives for dentures; Adjuvants for medical purposes; Lead water; Melissa water for pharmaceutical purposes; Sea water for medicinal bathing; Hydrogen peroxide for medical purposes; Mineral waters for medical purposes; Thermal water; Liquorice for pharmaceutical purposes; Alkaloids for medical purposes; Medicinal alcohol; Alcohol for pharmaceutical purposes; Formic aldehyde for pharmaceutical purposes; Aldehydes for pharmaceutical purposes; Algicides; Alginates for pharmaceutical purposes; Antiseptic cotton; Aseptic cotton; Wadding for medical purposes; Absorbent cotton; Cotton for medical purposes; Albuminous foodstuffs for medical purposes; Dietetic foods adapted for medical purposes; Food for babies; Dental amalgams; Dental amalgams of gold; Starch for dietetic or pharmaceutical purposes; Amino acids for medical purposes; Amino acids for veterinary purposes; Analgesics; Anti-rheumatism rings; Corn rings for the feet; Anaesthetics; Antibiotics; Antiseptics; Articles for headache; Dressings, medical; Frostbite salve for pharmaceutical purposes; Gurjun [gurjon, gurjan] balsam for medical purposes; Balms for medical purposes; Oxygen baths; Bath preparations, medicated; Vaginal washes; Dietetic beverages adapted for medical purposes; Bicarbonate of soda for pharmaceutical purposes; Biocides; Bromine for pharmaceutical purposes; Cachou for pharmaceutical purposes; Medicine cases, portable, filled; First-aid boxes, filled; Bacteriological culture mediums; Corn remedies; Calomel; Camphor for medical purposes; Capsules for medicines; Carbolineum [parasiticide]; Charcoal for pharmaceutical purposes; Angostura bark for medical purposes; Condurango bark for medical purposes; Croton bark; Mangrove bark for pharmaceutical purposes; Myrobalan bark for pharmaceutical purposes; Barks for pharmaceutical purposes; Poultices; Rubber for dental purposes; Stem cells for medical purposes; Stem cells for veterinary purposes; Ergot for pharmaceutical purposes; Molding wax for dentists; Asthmatic tea; Medicinal tea; Tobacco-free cigarettes for medical purposes; Bone cement for surgical and orthopaedic purposes; Cement for animal hooves; Dental cements; Belts for sanitary napkins [towels]; Hydrated chloral for pharmaceutical purposes; Chloroform; Cocaine; Antiparasitic collars for animals; Collyrium; Collodion for pharmaceutical purposes; Compresses; Cachets for pharmaceutical purposes; Chemical conductors for electrocardiograph electrodes; Candy, medicated; Chemical contraceptives; Cream of tartar for pharmaceutical purposes; Creosote for pharmaceutical purposes; Sanitary pants; Pants, absorbent, for incontinents; Cultures of microorganisms for medical and veterinary use; Biological tissue cultures for medical purposes; Biological tissue cultures for veterinary purposes; Curare; Decoctions for pharmaceutical purposes; Depuratives; Disinfectants for hygiene purposes; Disinfectants for chemical toilets; Deodorants for clothing and textiles; Deodorants, other than for human beings or for animals; Detergents for medical purposes; Diastase for medical purposes; Digestives for pharmaceutical purposes; Digitalin; Breast-nursing pads; Candy for medical purposes; Drugs for medical purposes; Elixirs [pharmaceutical preparations]; Mustard plasters; Enzymes for medical purposes; Enzymes for veterinary purposes; Medicinal herbs; Smoking herbs for medical purposes; Scapulars for surgical purposes; Adhesive plasters; Vulnerary sponges; Dill oil for medical purposes; Cellulose esters for pharmaceutical purposes; Esters for pharmaceutical purposes; Steroids; Styptic preparations; Strychnine; Cellulose ethers for pharmaceutical purposes; Ethers for pharmaceutical purposes; Eucalyptus for pharmaceutical purposes; Eucalyptol for pharmaceutical purposes; Extracts of hops for pharmaceutical purposes; Tobacco extracts [insecticides]; Linseed meal for pharmaceutical purposes; Fish meal for pharmaceutical purposes; Lacteal flour for babies; Meal for pharmaceutical purposes; Febrifuges; Phenol for pharmaceutical purposes; Milk ferments for pharmaceutical purposes; Ferments for pharmaceutical purposes; Dietary fiber; Adhesive bands for medical purposes; Flowers of sulphur for pharmaceutical purposes; Panty liners [sanitary]; Phosphates for pharmaceutical purposes; Babies' diaper-pants; Babies' napkins [diapers]; Napkins for incontinents; Diapers for pets; Fennel for medical purposes; Fungicides; Gases for medical purposes; Gauze for dressings; Lint for medical purposes; Gelatine for medical purposes; Petroleum jelly for medical purposes; Royal jelly for pharmaceutical purposes; Gentian for pharmaceutical purposes; Germicides; Glycerine for medical purposes; Glycerophosphates; Glucose for medical purposes; Chewing gum for medical purposes; Gamboge for medical purposes; Gum for medical purposes; Milking grease; Greases for medical purposes; Greases for veterinary purposes; Linseed for pharmaceutical purposes; Guaiacol for pharmaceutical purposes; Hemoglobin; Hydrastine; Hydrastinine; Hormones for medical purposes; Mint for pharmaceutical purposes; Surgical implants [living tissues]; Insect repellent incense; Medicinal infusions; Insecticides; Insect repellents; Alkaline iodides for pharmaceutical purposes; Iodides for pharmaceutical purposes; Iodine for pharmaceutical purposes; Iodoform; Isotopes for medical purposes; Jalap; Dental lacquer; Lactose for pharmaceutical purposes; Medicinal mud; Mud for baths; Wart pencils; Caustic pencils; Stick liquorice for pharmaceutical purposes; Hemostatic pencils; Headache pencils; Laxatives; Lecithin for medical purposes; Milk of almonds for pharmaceutical purposes; Malted milk beverages for medical purposes; Tissues impregnated with pharmaceutical lotions; Yeast for pharmaceutical purposes; Bandages for dressings; Alloys of precious metals for dental purposes; Liniments; Dog lotions; Lotions for pharmaceutical purposes; Lotions for veterinary purposes; Personal sexual lubricants; Lupulin for pharmaceutical purposes; Cedar wood for use as an insect repellent; Magnesia for pharmaceutical purposes; Malt for pharmaceutical purposes; Jujube, medicated; Dental mastics; Teeth filling material; Dental impression materials; Medicines for human purposes; Medicines for dental purposes; Medicines for veterinary purposes; Serotherapeutic medicines; Menthol; Mustard for pharmaceutical purposes; Irish moss for medical purposes; Narcotics; Nervines; Camphor oil for medical purposes; Cod liver oil; Mustard oil for medical purposes; Castor oil for medical purposes; Oil of turpentine for pharmaceutical purposes; Medicinal oils; Opiates; Opium; Opodeldoc; Oxygen for medical purposes; Eyepatches for medical purposes; Diabetic bread adapted for medical use; Mothproof paper; Fly catching paper; Paper for mustard plasters; Reagent paper for medical or veterinary purposes; Parasiticides; Lozenges for pharmaceutical purposes; Pectin for pharmaceutical purposes; Sanitary pads; Bunion pads; Pepsins for pharmaceutical purposes; Peptones for pharmaceutical purposes; Pesticides; Antioxidant pills; Tanning pills; Slimming pills; Appetite suppressant pills; Blood plasma; Powder of cantharides; Pearl powder for medical purposes; Pyrethrum powder; Medicinal drinks; Pomades for medical purposes; Porcelain for dental prostheses; Albuminous preparations for medical purposes; Bacterial preparations for medical and veterinary use; Bacteriological preparations for medical and veterinary use; Balsamic preparations for medical purposes; Aloe vera preparations for pharmaceutical purposes; Bismuth preparations for pharmaceutical purposes; Douching preparations for medical purposes; Vitamin preparations; Air deodorising preparations; Medical preparations for slimming purposes; Medicinal hair growth preparations; Preparations for destroying dry rot fungus; Bronchodilating preparations; Preparations to facilitate teething; Eye-washes; Preparations for reducing sexual activity; Therapeutic preparations for the bath; Preparations of lime for pharmaceutical purposes; Hemorrhoid preparations; Antiparasitic preparations; Sunburn ointments; Mothproofing preparations; Anti-uric preparations; Anticryptogamic preparations; Biological preparations for medical purposes; Biological preparations for veterinary purposes; Caustics for pharmaceutical purposes; Chilblain preparations; Sunburn preparations for pharmaceutical purposes; Preparations for callouses; Diagnostic preparations for medical purposes; Fumigation preparations for medical purposes; Preparations of trace elements for human and animal use; Enzyme preparations for medical purposes; Enzyme preparations for veterinary purposes; Soil-sterilising preparations; Pharmaceutical preparations; Pharmaceutical preparations for treating dandruff; Pharmaceutical preparations for skin care; Hematogen; Fly destroying preparations; Opotherapy preparations; Herbicides; Preparations for destroying noxious animals; Sterilising preparations; Contact lens cleaning preparations; Air purifying preparations; Larvae exterminating preparations; Slug exterminating preparations; Vermin destroying preparations; Preparations for destroying mice; Mouthwashes for medical purposes; Animal washes; Dog washes; Cattle washes; Preparations for the treatment of burns; Chemico-pharmaceutical preparations; Chemical preparations for the diagnosis of pregnancy; Chemical preparations for treating phylloxera; Chemical preparations to treat wheat smut; Vine disease treating chemicals; Chemical preparations to treat mildew; Chemical preparations for pharmaceutical purposes; Chemical preparations for medical purposes; Chemical preparations for veterinary purposes; Radioactive substances for medical purposes; Veterinary preparations; Propolis for pharmaceutical purposes; Anti-rheumatism bracelets; Bracelets for medical purposes; Evacuants; Quassia for medical purposes; Quebracho for medical purposes; Quinine for medical purposes; Chinoline for medical purposes; Cinchona for medical purposes; Radium for medical purposes; Rhubarb roots for pharmaceutical purposes; Medicinal roots; Chemical reagents for medical or veterinary purposes; Tonics [medicines]; Medicines for alleviating constipation; Remedies for perspiration; Remedies for foot perspiration; Repellents for dogs; By-products of the processing of cereals for dietetic or medical purposes; Smelling salts; Mineral water salts; Bath salts for medical purposes; Potassium salts for medical purposes; Sodium salts for medical purposes; Salts for mineral water baths; Salts for medical purposes; Sarsaparilla for medical purposes; Blood for medical purposes; Leeches for medical purposes; Siccatives [drying agents] for medical purposes; Sedatives; Semen for artificial insemination; Solutions for contact lenses; Solvents for removing adhesive plasters; Soporifics; Serums; Cooling sprays for medical purposes; Bismuth subnitrate for pharmaceutical purposes; Radiological contrast substances for medical purposes; Dietetic substances adapted for medical use; Nutritive substances for microorganisms; Sulphonamides [medicines]; Albumin dietary supplements; Wheat germ dietary supplements; Mineral food supplements; Protein supplements for animals; Alginate dietary supplements; Casein dietary supplements; Enzyme dietary supplements; Royal jelly dietary supplements; Glucose dietary supplements; Lecithin dietary supplements; Yeast dietary supplements; Linseed dietary supplements; Linseed oil dietary supplements; Pollen dietary supplements; Propolis dietary supplements; Protein dietary supplements; Dietary supplements for animals; Nutritional supplements; Suppositories; Appetite suppressants for medical purposes; Sanitary tampons; Tartar for pharmaceutical purposes; Moleskin for medical purposes; Surgical tissues; Surgical dressings; Turpentine for pharmaceutical purposes; Thymol for pharmaceutical purposes; Tincture of iodine; Tinctures for medical purposes; Herbal teas for medicinal purposes; Sanitary towels; Mercurial ointments; Ointments for pharmaceutical purposes; Vaccines; Sulphur sticks [disinfectants]; Fumigating sticks; Rat poison; Poisons; Bacterial poisons; Vermifuges; Vesicants; Syrups for pharmaceutical purposes.

Class  41: Education; Providing of training; Entertainment; Sporting and cultural activities; Academies [education]; Animal training; Rental of lighting apparatus for theatrical sets or television studios; Rental of radio and television sets; Toy rental; Rental of camcorders; Rental of tennis courts; Rental of sports grounds; Rental of videotapes; Rental of show scenery; Rental of stage scenery; Rental of audio equipment; Rental of sports equipment, except vehicles; Games equipment rental; Rental of skin diving equipment; Rental of stadium facilities; Rental of cine-films; Rental of sound recordings; Rental of movie projectors and accessories; Rental of video cassette recorders; Lending libraries; Circuses; Night clubs; Coaching [training]; Nursery schools; Timing of sports events; Correspondence courses; Providing casino facilities [gambling]; Entertainment; Radio entertainment; Television entertainment; Dubbing; Videotape editing; Electronic desktop publishing; Education; Physical education; Religious education; Gymnastic instruction; Music-halls; Movie studios; Educational examination; Presentation of live performances; Cinema presentations; Providing golf facilities; Providing sports facilities; Providing recreation facilities; Zoological garden services; Providing amusement arcade services; Practical training [demonstration]; Photography; Videotaping; Recreation information; Education information; Entertainment information; Boarding schools; Sign language interpretation; Subtitling; Microfilming; Modelling for artists; Organization of balls; Organization of sports competitions; Organization of competitions [education or entertainment]; Arranging of beauty contests; Organization of fashion shows for entertainment purposes; Organization of shows [impresario services]; Organization of exhibitions for cultural or educational purposes; Party planning [entertainment]; Operating lotteries; Arranging and conducting of concerts; Arranging and conducting of colloquiums; Arranging and conducting of conferences; Arranging and conducting of congresses; Arranging and conducting of seminars; Arranging and conducting of symposiums; Arranging and conducting of workshops [training]; Vocational guidance [education or training advice]; Amusement parks; Production of shows; Film production, other than advertising films; Videotape film production; Production of music; Production of radio and television programmes; Theatre productions; Publication of books; Publication of electronic books and journals on-line; Publication of texts, other than publicity texts; Conducting fitness classes; Vocational retraining; Writing of texts, other than publicity texts; Photographic reporting; Booking of seats for shows; Holiday camp services [entertainment]; Entertainer services; Bookmobile services; Ticket agency services [entertainment]; Calligraphy services; Sport camp services; Club services [entertainment or education]; Music composition services; Disc jockey services; Discotheque services; Services of schools [education]; Recording studio services; Health club services [health and fitness training]; Language interpreter services; Game services provided on-line from a computer network; Gambling; Providing karaoke services; Layout services, other than for advertising purposes; Providing museum facilities [presentation, exhibitions]; Orchestra services; Personal trainer services [fitness training]; Scriptwriting services; News reporters services; Translation; Providing on-line electronic publications, not downloadable.

Class 44: Medical services; Veterinary services; Hygienic and beauty care for human beings or animals; Agriculture, horticulture and forestry services; Pharmacy advice; Health counseling; Medical equipment rental; Rental of sanitation facilities; Farming equipment rental; Medical assistance; Veterinary assistance; Public baths for hygiene purposes; Turkish baths; Hairdressing salons; Rest homes; Health centers; Tree surgery; Plastic surgery; Medical clinic services; Wreath making; Animal breeding; Weed killing; Nursing, medical; Vermin exterminating for agriculture, horticulture and forestry; Physiotherapy; Horticulture; Hospices; Hospitals; Gardening; Landscape gardening; Nursing homes; Lawn care; Massage; Dentistry; Landscape design; Tree planting for carbon offsetting purposes; Aerial and surface spreading of fertilizers and other agricultural chemicals; Chiropractics; Beauty salons; Sanatoriums; Aquaculture services; Aromatherapy services; Flower arranging; Blood bank services; Pet grooming; Health care; Health spa services; Pharmacists' services to make up prescriptions; In vitro fertilization services; Hair implantation; Artificial insemination services; Manicuring; Alternative medicine services; Opticians' services; Midwife services; Services of a psychologist; Rehabilitation for substance abuse patients; Sauna services; Solarium services; Tattooing; Telemedicine services; Therapy services; Speech therapy services; Visagists' services; Plant nurseries; Animal grooming.

The applicant invoked Article 52(1)(a) EUTMR in conjunction with Article  7(1)(b) and (c) EUTMR.

SUMMARY OF THE PARTIES’ ARGUMENTS

The applicant argues that the element “WHITE” of the EUTM merely describes the colour of the goods and services, furthermore, that the additional, barely readable elements will be understood as describing feeding/food designed by professional engineers. The sign being a purely descriptive indication, it is also devoid of distinctive character. The applicant furthermore cites four previous EUTM application refusals of the Office, notably in relation to marks consisting of the words “STAY WHITE” (EUTMA No 3 847 944), “HEALTHY WHITE” (EUTMA 12 305 678), “megawhite” (EUTMA No 13154034), “OFF-WHITE” (EUTMA No 13263124).

The EUTM proprietor did not submit any observations in reply.

ABSOLUTE GROUNDS FOR INVALIDITY – ARTICLE 52(1)(a) EUTMR IN CONJUNCTION WITH ARTICLE 7 EUTMR

According to Article 52(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 and 43).

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 service’ are not to be registered.

By prohibiting the registration as European Union trade marks of the signs and indications to which it refers, Article 7(1)(c) EUTMR

pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks.

(23/10/2003, C‑191/01 P, Doublemint, EU:C:2003:579, § 31).

‘The signs and indications referred to in Article 7(1)(c) [EUTMR] are those which may serve in normal usage from the point of view of the target public to designate, either directly or by reference to one of their essential characteristics, the goods or service in respect of which registration is sought’ (26/11/2003, T‑222/02, Robotunits, EU:T:2003:315, § 34).

The distinctive character and descriptiveness of a trade mark must be assessed, first, in relation to the goods or services in respect of which registration of the sign is sought and, second, in relation to the perception of the section of the public targeted, which is composed of the consumers of those goods or services (27/11/2003, T‑348/02, Quick, EU:T:2003:318, § 29).

In the present case, the goods and services at hand, pharmaceutical, veterinary, sanitary preparations, education, training, entertainment, sporting, cultural activities, medical, veterinary hygienic, beauty, agriculture, horticulture and forestry services are mainly aimed at the public at large, although the medical professionals or an expert public may also be targeted by goods in Class 5 or services in the fields or agriculture, horticulture, forestry. The attentiveness of the relevant public will vary from average to high. Since the EUTM consists of English words, the relevant public with reference to which the absolute ground for refusal must be examined is the English-speaking consumer in the Union (22/06/1999, C‑342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26; and 27/11/2003, T‑348/02, Quick, EU:T:2003:318, § 30).

When assessing the distinctive character of a trade mark consisting of a combination of elements, the mark needs to be considered as a whole. However, that does not preclude prior examination of each of the trade mark’s individual features (09/07/2003, T‑234/01, Orange und Grau, EU:T:2003:202, § 32).

In the present case, the EUTM is a figurative sign composed of the words “WHITE ENGINEERED NUTRITION” written in white stylised fonts against a black background.

As to the meanings of the words in the sign, the applicant refers to entries from the online Collins English Dictionary, notably:

• WHITE: the colour white

• Engineered: designed, planned or constructed by a professional engineer

• Nutrition: a process in animals and plants involving the intake of nutrient materials and their subsequent assimilation into tissues

It is true that the word “WHITE” may be seen as describing the characteristics of some of the goods at hand, notably their colour. This may be the case for pharmaceutical, sanitary and dental preparations, dressings, cottons, etc. Nevertheless, the application covers many goods which usually appear in colours other than white, iodine, menthol, mustard, cod liver oil, castor oil for medical purposes, just to name a few. As for the contested services, the applicant did not give any arguments as to how a service could be associated with the colour white; services being intangible, they in principle are not inherently characterised by one or more colours.

As regards the intended purpose of some of the dentistry goods or hygienic, beauty care services, there may be a link to teeth or skin whitening products and procedures, and thus the term “WHITE” might be seen as giving indications regarding the intended purpose of the goods and services.

Nonetheless, even if a link exists between some of the goods and services and the term “WHITE”, this is not the only element of the contested EUTM.

Since the trade mark at issue is made up of several components (a compound mark), for the purposes of assessing its distinctive character it must be considered as a whole.

The individual components of the term “WHITE ENGINEERED NUTRITION” may have several connotations, “WHITE” can refer to the colour or intended purpose of the goods, “ENGINEERED” can point to the scientific process of creating them, and “NUTRITION” may be seen to refer to specific application in the field of dietetics or alimentation, although it should already be pointed out that the majority of the goods and services at hand are specified by the EUTM proprietor in a way to make clear that they have nothing to do with nutrition.

Taken as a whole, the term “WHITE ENGINEERED NUTRITION” carries no apparent meaning, and especially not one clearly descriptive of characteristics of the goods and services. A mental effort would be required from the consumers to interpret any possible message behind the combination of the words. “NUTRITION”, i.e. the intake of nutrient materials may be “ENGINEERED”, i.e. designed by a professional engineer, but this is already uncommon as engineers are not usually involved in designing diets. Furthermore, it is unclear how nutrition itself, i.e. the intake of nutrient materials, can be of white colour. Taken as a whole, these components will leave the relevant public, even professionals, wondering what the products or services can be and what possible purpose they could serve.

Given the ambiguous message conveyed by the mark as a whole, the Cancellation Division is of the view that the combination of the verbal elements of the EUTM creates a vague impression, an unclear meaning which is far removed from the meanings of the sum of the parts. Taken as a whole, the term “WHITE ENGINEERED NUTRITION” does not provide any obvious and direct information regarding the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods and services, or other characteristics of the goods and services in question.

Thus the EUTM does not fall within the scope of the prohibition laid down by Article 7(1)(c) EUTMR and Article 7(2) EUTMR. In other words, it is considered that at the time of filing of the application for the contested mark, it was not descriptive for the relevant goods and services in classes 5, 41 and 44.

As regards the applicant’s argument that a number of similar marks have been refused by the EUIPO, according to settled case‑law, ‘decisions concerning registration of a sign as a European Union trade mark … are adopted in the exercise of circumscribed powers and are not a matter of discretion’. Accordingly, the registrability of a sign as a European Union trade mark must be assessed solely on the basis of the EUTMR, as interpreted by the Union judicature, and not on the basis of previous Office practice (15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 47; and 09/10/2002, T‑36/01, Glass pattern, EU:T:2002:245, § 35).

Bearing this in mind, it should furthermore be noted that these refusals concerned mainly word marks, and/or marks containing only the term “white” with minimal additional elements which were considered insufficient to confer distinctive character upon the term in the context of the goods and services at hand. As the above assessment shows, this is not the case here.

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

Apart from claiming that the EUTM is descriptive and thus is also devoid of distinctive character, the applicant did not provide any further arguments regarding the non-distinctiveness of the EUTM.

It has been established above that the EUTM is not descriptive of the goods and services at hand. Furthermore, the EUTM being a figurative mark, its particular stylisation should also be taken into account.

The EUTM is written in two lines against a black background, in two different white fonts, “WHITE” in capital letters and “ENGINEERED NUTRITION” in handwritten style. Despite the applicant’s argument, this latter term, although being smaller in size than “WHITE”, is a clearly visible component of the mark. As for the element “WHITE”, its letters are presented in a quite particular design: while the letters “W”, “T” and “E” are capital letters, the letter “H” is in fact broken down to present a lower-case “h”, stylised in such a way that it also depicts a lower-case letter “i”.

This particular stylisation and the creative use of letters even on its own would be sufficient to enable the relevant public to memorise the sign easily and instantly as a distinctive trade mark for the goods and services in question.

Taking into account the above, it is considered that, at the time of filing of the application for the contested mark, it was fully distinctive for the relevant goods and services in Classes 5, 41 and 44.

Conclusion

In the light of the above, the Cancellation Division concludes that the application is not successful and that the European Union trade mark was rightfully accepted for registration.

COSTS

According to Article 85(1) EUTMR, the losing party in cancellation proceedings must bear the fees and costs incurred by the other party.

Since the applicant is the losing party, it must bear the costs incurred by the EUTM proprietor in the course of these proceedings.

According to Rule 94(3) EUTMIR and Rule 94(7)(d)(iv) EUTMIR, the costs to be paid to the EUTM proprietor are the representation costs, which are to be fixed on the basis of the maximum rate set therein.

The Cancellation Division

Richard THEWLIS

Marianna KONDAS

Solveiga BIEZA

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 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 Rule 94(4) EUTMIR, such a request must be filed within one month from 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.