CANCELLATION No 15 665 C (INVALIDITY)

En Route International Ltd, Assurant House 6-12, Victoria Street, Windsor, United Kingdom (applicant), represented by Patent- Und Rechtsanwälte Ullrich & Naumann Partnerschaftsgesellschaft mbB, Schneidmühlstraße 21, 69115 Heidelberg, Germany (professional representative.

a g a i n s t

David Lloyd Leisure Limited, The Hangar, Mosquito Way, Hatfield Business Park, Hatfield, United Kingdom (EUTM proprietor), represented by Withers & Rogers LLP, 4 More London Riverside, London, United Kingdom (professional representative).

On 13/12/2018, the Cancellation Division takes the following

DECISION

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

2. European Union trade mark No 1 1019 817 is declared invalid for all the contested goods and services.

Class 29 Meat, fish, poultry and game; Meat extracts; Preserved, frozen, dried and cooked fruits and vegetables; Jellies, jams, compotes; Eggs; Milk and milk products; Edible oils and fats; Ajvar [preserved peppers]; Albumen for culinary purposes; Albumin milk; Alginates for culinary purposes; Almonds, ground; Aloe vera prepared for human consumption; Anchovy; Animal marrow for food; Apple purée; Bacon; Beans, preserved; Black pudding; Bone oil, edible; Bouillon (Preparations for making -); Broth; Broth concentrates; Butter; Buttercream; Caviar; Charcuterie; Cheese; Clams [not live]; Cocoa butter; Coconut butter; Coconut, desiccated; Coconut fat; Coconut oil; Corn oil; Cranberry sauce [compote]; Crayfish, not live; Cream [dairy products]; Croquettes; Crustaceans, not live; Curd; Dates; Edible birds' nests; Edible fats; Edible oils; Egg nog (Non-alcoholic -); Eggs; Fat-containing mixtures for bread slices; Fatty substances for the manufacture of edible fats; Fermented vegetable foods [kimchi]; Ferments (Milk -) for culinary purposes; Fish fillets; Fish meal for human consumption; Fish, not live; Fish, preserved; Fish spawn (Processed -); Fish, tinned [canned (Am)]; Foods prepared from fish; Frosted fruits; Frozen fruits; Fruit-based snack food; Fruit chips; Fruit jellies; Fruit peel; Fruit, preserved; Fruit preserved in alcohol; Fruit pulp; Fruit salads; Fruit, stewed; Fruits, tinned [canned (Am)]; Game, not live; Garlic (Preserved -); Gelatine; Gherkins; Ginger jam; Ham; Herrings; Hummus [chickpea paste]; Isinglass for food; Jams; Jellies for food; Kefir [milk beverage]; Kumys [kumyss] milk beverage; Lard for food; Lecithin for culinary purposes; Lentils, preserved; Linseed oil for culinary purposes; Liver; Liver pâté; Lobsters, not live; Low-fat potato chips; Margarine; Marmalade; Meat; Meat extracts; Meat jellies; Meat, preserved; Meat, tinned [canned (Am)]; Milk; Milk beverages, milk predominating; Milk products; Milk shakes; Mousses (Fish -); Mousses (Vegetable -); Mushrooms, preserved; Mussels, not live; Nuts, prepared; Olive oil for food; Olives, preserved; Onions, preserved; Oysters, not live; Palm kernel oil for food; Palm oil for food; Peanut butter; Peanuts, processed; Peas, preserved; Pectin for culinary purposes; Piccalilli; Pickles; Pollen prepared as foodstuff; Pork; Potato chips; Potato flakes; Potato fritters; Poultry, not live; Powdered eggs; Prawns, not live; Raisins; Rape oil for food; Rennet; Salmon; Salted fish; Salted meats; Sardines; Sauerkraut; Sausages; Sausages in batter; Sea-cucumbers, not live; Seeds (Processed -); Seeds (Processed sunflower -); Sesame oil; Shellfish, not live; Shrimps, not live; Silkworm chrysalis, for human consumption; Snail eggs for consumption; Soup (Preparations for making -); Soups; Soya beans, preserved, for food; Soya milk [milk substitute]; Spiny lobsters, not live; Suet for food; Sunflower oil for food; Tahini [sesame seed paste]; Toasted laver; Tofu; Tomato juice for cooking; Tomato purée; Tripe; Truffles, preserved; Tuna fish; Vegetable juices for cooking; Vegetable salads; Vegetable soup preparations; Vegetables, cooked; Vegetables, dried; Vegetables, preserved; Vegetables, tinned [canned (Am)]; Weed extracts for food; Whey; Whipped cream; White of eggs; Yogurt; Yolk of eggs.

Class 30 Coffee, tea, cocoa and artificial coffee; Rice; Tapioca and sago; Flour and preparations made from cereals; Bread, pastry and confectionery; Ices; Sugar, honey, treacle; Yeast, baking-powder; Salt; Mustard; Vinegar, sauces (condiments); Spices; Ice; Allspice; Almond confectionery; Almond paste; Aniseed; Aromatic preparations for food; Artificial coffee; Baking powder; Baking soda [bicarbonate of soda for cooking purposes]; Barley (Crushed -); Barley meal; Bean meal; Bee glue; Beer vinegar; Biscuits; Bread; Bread rolls; Breadcrumbs; Buns; Cake powder; Cakes; Candy; Capers; Caramels [candy]; Celery salt; Cereal-based snack food; Cereal preparations; Cheeseburgers [sandwiches]; Chewing gum; Chicory [coffee substitute]; Chips [cereal products]; Chocolate; Chocolate-based beverages; Chocolate beverages with milk; Chow-chow [condiment]; Chutneys [condiments]; Cinnamon [spice]; Cloves [spice]; Cocoa; Cocoa-based beverages; Cocoa beverages with milk; Cocoa products; Coffee; Coffee-based beverages; Coffee beverages with milk; Coffee flavorings [flavourings]; Coffee (Unroasted -); Condiments; Confectionery; Confectionery for decorating Christmas trees; Cookies; Cooking salt; Corn flakes; Corn meal; Corn, milled; Corn, roasted; Coulis (Fruit -) [sauces]; Couscous [semolina]; Crackers; Cream of tartar for cooking purposes; Cream of tartar for culinary purposes; Curry [spice]; Custard; Dressings for salad; Edible ices; Essences for foodstuffs, except etheric essences and essential oils; Farinaceous foods; Ferments for pastes; Flavorings, other than essential oils; Flavorings, other than essential oils, for cakes; Flavorings, other than essential oils, for beverages; Flour-milling products; Fondants [confectionery]; Frosting [icing] (Cake -); Frozen yogurt [confectionery ices]; Fruit jellies [confectionery]; Garden herbs, preserved [seasonings]; Ginger [spice]; Gingerbread; Glucose for culinary purposes; Gluten additives for culinary purposes; Gluten prepared as foodstuff; Golden syrup; Groats for human food; Gruel, with a milk base, for food; Halvah; Ham glaze; High-protein cereal bars; Hominy; Hominy grits; Honey; Husked barley; Husked oats; Ice cream; Ice cream (Binding agents for -); Ice for refreshment; Ice, natural or artificial; Iced tea; Infusions, not medicinal; Ketchup [sauce]; Leaven; Linseed for human consumption; Liquorice [confectionery]; Lozenges [confectionery]; Macaroni; Macaroons [pastry]; Malt biscuits; Malt extract for food; Malt for human consumption; Maltose; Marinades; Marzipan; Mayonnaise; Meal; Meat gravies; Meat pies; Meat tenderizers, for household purposes; Mint for confectionery; Molasses for food; Mousses (Chocolate -); Mousses (Dessert -) [confectionery]; Muesli; Mustard; Mustard meal; Noodle-based prepared meals; Noodles; Nutmegs; Oat-based food; Oat flakes; Oatmeal; Oats (Crushed -); Pancakes; Pasta; Pasties; Pastries; Pastry; Peanut confectionery; Pepper; Peppermint sweets; Peppers [seasonings]; Pesto [sauce]; Petit-beurre biscuits; Petits fours [cakes]; Pies; Pizzas; Popcorn; Potato flour for food; Powders for ice cream; Pralines; Puddings; Quiches; Ravioli; Relish [condiment]; Rice; Rice-based snack food; Rice cakes; Royal jelly; Rusks; Saffron [seasoning]; Sago; Salt for preserving foodstuffs; Sandwiches; Sauces [condiments]; Sausage binding materials; Sea water for cooking; Seasonings; Semolina; Sorbets [ices]; Soya bean paste [condiment]; Soya flour; Soya sauce; Spaghetti; Spices; Spring rolls; Star aniseed; Starch for food; Stick liquorice [confectionery]; Stiffening whipped cream (Preparations for -); Sugar; Sushi; Sweeteners (Natural -); Sweetmeats [candy]; Tabbouleh; Tacos; Tapioca; Tapioca flour for food; Tarts; Tea; Tea-based beverages; Thickening agents for cooking foodstuffs; Tomato sauce; Tortillas; Turmeric for food; Unleavened bread; Vanilla [flavoring] flavouring; Vanillin [vanilla substitute]; Vegetal preparations for use as coffee substitutes; Vermicelli [noodles]; Vinegar; Waffles; Weeds [condiment]; Wheat flour; Wheat germ for human consumption; Yeast.

Class 43 Services for providing food and drink; Temporary accommodation; Accommodation bureaux [hotels, boarding houses]; Accommodation reservations (Temporary -); Bar services; Boarding for animals; Boarding house bookings; Boarding houses; Cafés; Cafeterias; Canteens; Catering (Food and drink -); Day-nurseries [crèches]; Holiday camp services [lodging]; Hotel reservations; Hotels; Motels; Providing campground facilities; Rental of chairs, tables, table linen, glassware; Rental of cooking apparatus; Rental of drinking water dispensers; Rental of meeting rooms; Rental of temporary accommodation; Rental of tents; Rental of transportable buildings; Restaurants; Retirement homes; Self-service restaurants; Snack-bars; Tourist homes; Hotel services; cafe, bar and restaurant services; holiday camp services (accommodation); catering; rental of meeting rooms.

3. The European Union trade mark remains registered for all the uncontested goods and services namely:

Class 41: Provision and operation of recreation and sports facilities; provision of teaching and coaching facilities for sports and recreational activities; sports training and teaching academies; organisation of sporting competitions; sport camp services; rental of sports equipment; rental of sports facilities; training.

Class 44: Hygienic and beauty care services; hairdressing; beauty salons; Turkish baths; massage; physical therapy; physiotherapy; advisory and consultancy services relating to weight loss; advisory and consultancy services relating to nutrition.

4. The European Union trade mark 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 1 1019 817 (figurative mark) (the EUTM). The request is directed against some of the goods and services covered by the EUTM, namely all the goods in Classes 29 and 30, and all the services in Class 43:

Class 29 Meat, fish, poultry and game; Meat extracts; Preserved, frozen, dried and cooked fruits and vegetables; Jellies, jams, compotes; Eggs; Milk and milk products; Edible oils and fats; Ajvar [preserved peppers]; Albumen for culinary purposes; Albumin milk; Alginates for culinary purposes; Almonds, ground; Aloe vera prepared for human consumption; Anchovy; Animal marrow for food; Apple purée; Bacon; Beans, preserved; Black pudding; Bone oil, edible; Bouillon (Preparations for making -); Broth; Broth concentrates; Butter; Buttercream; Caviar; Charcuterie; Cheese; Clams [not live]; Cocoa butter; Coconut butter; Coconut, desiccated; Coconut fat; Coconut oil; Corn oil; Cranberry sauce [compote]; Crayfish, not live; Cream [dairy products]; Croquettes; Crustaceans, not live; Curd; Dates; Edible birds' nests; Edible fats; Edible oils; Egg nog (Non-alcoholic -); Eggs; Fat-containing mixtures for bread slices; Fatty substances for the manufacture of edible fats; Fermented vegetable foods [kimchi]; Ferments (Milk -) for culinary purposes; Fish fillets; Fish meal for human consumption; Fish, not live; Fish, preserved; Fish spawn (Processed -); Fish, tinned [canned (Am)]; Foods prepared from fish; Frosted fruits; Frozen fruits; Fruit-based snack food; Fruit chips; Fruit jellies; Fruit peel; Fruit, preserved; Fruit preserved in alcohol; Fruit pulp; Fruit salads; Fruit, stewed; Fruits, tinned [canned (Am)]; Game, not live; Garlic (Preserved -); Gelatine; Gherkins; Ginger jam; Ham; Herrings; Hummus [chickpea paste]; Isinglass for food; Jams; Jellies for food; Kefir [milk beverage]; Kumys [kumyss] milk beverage; Lard for food; Lecithin for culinary purposes; Lentils, preserved; Linseed oil for culinary purposes; Liver; Liver pâté; Lobsters, not live; Low-fat potato chips; Margarine; Marmalade; Meat; Meat extracts; Meat jellies; Meat, preserved; Meat, tinned [canned (Am)]; Milk; Milk beverages, milk predominating; Milk products; Milk shakes; Mousses (Fish -); Mousses (Vegetable -); Mushrooms, preserved; Mussels, not live; Nuts, prepared; Olive oil for food; Olives, preserved; Onions, preserved; Oysters, not live; Palm kernel oil for food; Palm oil for food; Peanut butter; Peanuts, processed; Peas, preserved; Pectin for culinary purposes; Piccalilli; Pickles; Pollen prepared as foodstuff; Pork; Potato chips; Potato flakes; Potato fritters; Poultry, not live; Powdered eggs; Prawns, not live; Raisins; Rape oil for food; Rennet; Salmon; Salted fish; Salted meats; Sardines; Sauerkraut; Sausages; Sausages in batter; Sea-cucumbers, not live; Seeds (Processed -); Seeds (Processed sunflower -); Sesame oil; Shellfish, not live; Shrimps, not live; Silkworm chrysalis, for human consumption; Snail eggs for consumption; Soup (Preparations for making -); Soups; Soya beans, preserved, for food; Soya milk [milk substitute]; Spiny lobsters, not live; Suet for food; Sunflower oil for food; Tahini [sesame seed paste]; Toasted laver; Tofu; Tomato juice for cooking; Tomato purée; Tripe; Truffles, preserved; Tuna fish; Vegetable juices for cooking; Vegetable salads; Vegetable soup preparations; Vegetables, cooked; Vegetables, dried; Vegetables, preserved; Vegetables, tinned [canned (Am)]; Weed extracts for food; Whey; Whipped cream; White of eggs; Yogurt; Yolk of eggs.

Class 30 Coffee, tea, cocoa and artificial coffee; Rice; Tapioca and sago; Flour and preparations made from cereals; Bread, pastry and confectionery; Ices; Sugar, honey, treacle; Yeast, baking-powder; Salt; Mustard; Vinegar, sauces (condiments); Spices; Ice; Allspice; Almond confectionery; Almond paste; Aniseed; Aromatic preparations for food; Artificial coffee; Baking powder; Baking soda [bicarbonate of soda for cooking purposes]; Barley (Crushed -); Barley meal; Bean meal; Bee glue; Beer vinegar; Biscuits; Bread; Bread rolls; Breadcrumbs; Buns; Cake powder; Cakes; Candy; Capers; Caramels [candy]; Celery salt; Cereal-based snack food; Cereal preparations; Cheeseburgers [sandwiches]; Chewing gum; Chicory [coffee substitute]; Chips [cereal products]; Chocolate; Chocolate-based beverages; Chocolate beverages with milk; Chow-chow [condiment]; Chutneys [condiments]; Cinnamon [spice]; Cloves [spice]; Cocoa; Cocoa-based beverages; Cocoa beverages with milk; Cocoa products; Coffee; Coffee-based beverages; Coffee beverages with milk; Coffee flavorings [flavourings]; Coffee (Unroasted -); Condiments; Confectionery; Confectionery for decorating Christmas trees; Cookies; Cooking salt; Corn flakes; Corn meal; Corn, milled; Corn, roasted; Coulis (Fruit -) [sauces]; Couscous [semolina]; Crackers; Cream of tartar for cooking purposes; Cream of tartar for culinary purposes; Curry [spice]; Custard; Dressings for salad; Edible ices; Essences for foodstuffs, except etheric essences and essential oils; Farinaceous foods; Ferments for pastes; Flavorings, other than essential oils; Flavorings, other than essential oils, for cakes; Flavorings, other than essential oils, for beverages; Flour-milling products; Fondants [confectionery]; Frosting [icing] (Cake -); Frozen yogurt [confectionery ices]; Fruit jellies [confectionery]; Garden herbs, preserved [seasonings]; Ginger [spice]; Gingerbread; Glucose for culinary purposes; Gluten additives for culinary purposes; Gluten prepared as foodstuff; Golden syrup; Groats for human food; Gruel, with a milk base, for food; Halvah; Ham glaze; High-protein cereal bars; Hominy; Hominy grits; Honey; Husked barley; Husked oats; Ice cream; Ice cream (Binding agents for -); Ice for refreshment; Ice, natural or artificial; Iced tea; Infusions, not medicinal; Ketchup [sauce]; Leaven; Linseed for human consumption; Liquorice [confectionery]; Lozenges [confectionery]; Macaroni; Macaroons [pastry]; Malt biscuits; Malt extract for food; Malt for human consumption; Maltose; Marinades; Marzipan; Mayonnaise; Meal; Meat gravies; Meat pies; Meat tenderizers, for household purposes; Mint for confectionery; Molasses for food; Mousses (Chocolate -); Mousses (Dessert -) [confectionery]; Muesli; Mustard; Mustard meal; Noodle-based prepared meals; Noodles; Nutmegs; Oat-based food; Oat flakes; Oatmeal; Oats (Crushed -); Pancakes; Pasta; Pasties; Pastries; Pastry; Peanut confectionery; Pepper; Peppermint sweets; Peppers [seasonings]; Pesto [sauce]; Petit-beurre biscuits; Petits fours [cakes]; Pies; Pizzas; Popcorn; Potato flour for food; Powders for ice cream; Pralines; Puddings; Quiches; Ravioli; Relish [condiment]; Rice; Rice-based snack food; Rice cakes; Royal jelly; Rusks; Saffron [seasoning]; Sago; Salt for preserving foodstuffs; Sandwiches; Sauces [condiments]; Sausage binding materials; Sea water for cooking; Seasonings; Semolina; Sorbets [ices]; Soya bean paste [condiment]; Soya flour; Soya sauce; Spaghetti; Spices; Spring rolls; Star aniseed; Starch for food; Stick liquorice [confectionery]; Stiffening whipped cream (Preparations for -); Sugar; Sushi; Sweeteners (Natural -); Sweetmeats [candy]; Tabbouleh; Tacos; Tapioca; Tapioca flour for food; Tarts; Tea; Tea-based beverages; Thickening agents for cooking foodstuffs; Tomato sauce; Tortillas; Turmeric for food; Unleavened bread; Vanilla [flavoring] flavouring; Vanillin [vanilla substitute]; Vegetal preparations for use as coffee substitutes; Vermicelli [noodles]; Vinegar; Waffles; Weeds [condiment]; Wheat flour; Wheat germ for human consumption; Yeast.

Class 43 Services for providing food and drink; Temporary accommodation; Accommodation bureaux [hotels, boarding houses]; Accommodation reservations (Temporary -); Bar services; Boarding for animals; Boarding house bookings; Boarding houses; Cafés; Cafeterias; Canteens; Catering (Food and drink -); Day-nurseries [crèches]; Holiday camp services [lodging]; Hotel reservations; Hotels; Motels; Providing campground facilities; Rental of chairs, tables, table linen, glassware; Rental of cooking apparatus; Rental of drinking water dispensers; Rental of meeting rooms; Rental of temporary accommodation; Rental of tents; Rental of transportable buildings; Restaurants; Retirement homes; Self-service restaurants; Snack-bars; Tourist homes; Hotel services; cafe, bar and restaurant services; holiday camp services (accommodation); catering; rental of meeting rooms.

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, citing case-law and previous refusals of the Office, that the imputed mark is descriptive and lacking in distinctive character with respect to the contested goods and services, from the point of view of the relevant public, English-speaking and otherwise. The verbal element DLICIOUS will be understood as a claim that the goods (produced or provided) are delicious. The misspelling will not be perceived as (syntactically) fanciful or striking in the sector concerned, and will not be perceived aurally. It will be clearly understood as descriptive and/or laudatory content. Misspellings are frequently used in a promotional way and the mark is insufficiently stylised to be considered distinctive. In this case, the mark is simply the word “delicious” without the letter “e” incorporating some simple graphic elements which are banal in the context of marketing food (whether produced or served). It cannot serve as a badge of origin.

In support of its observations, and in addition to some sample refusal decisions, the applicant filed inter alia the following relevant evidence:

• Enclosures showing that abbreviated spellings of the adjective “delicious” are in use in the market.

The EUTM proprietor argues, citing case-law, that the mark is distinctive. It is made up of a fanciful misspelling in a stylised font deploying two different colours, together with a figurative element depicting two leaves. The mass-consumption goods and services are related to food and drink and are aimed at the average consumer from English-speaking countries. A cognitive effort is required to fill in the missing vowel and to make sense of the word element. It is not phonetically identical to the word “delicious”, and is as sufficiently striking as the deliberately misspelt sign “d´licious”, which is expressly recognised as being non-descriptive

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 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.

‘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).

For the purposes of assessing descriptiveness, it must be determined whether the relevant public will make a sufficiently direct and specific association between the expression and the goods/services for which registration is sought (20/07/2004, T‑311/02, LIMO, §ECLI: EU:T:2004:245´§ 30).

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 reference base is the ordinary understanding of the relevant public of the words in question. That can be corroborated by examples of the use of the term in a descriptive manner, or it may clearly follow from the ordinary understanding of the term.

There is no issue between the parties as to the relevant public in question i.e that it includes or that it is the English-speaking public. Nor is it an issue that the complete word “delicious” would be descriptive in relation to food/food-related services. However, the proprietor maintains, in the first place, that the particular rendition of the verbal element in question is a distinctive one, whereas the applicant contends that it is an obvious abbreviation of the characteristic “delicious” and therefore descriptive.

Whether or not a particular misspelling or omission is distinctive depends on a case-by-case assessment. According to the proprietor, the mark “d’licious” is on a par with the present case. According to the section of the EUIPO Guidelines relied on by the proprietor in this regard, misspellings may endow a sign with a sufficient degree of distinctive character when:

• they are striking, surprising, unusual, arbitrary and/or;

• they are capable of changing the meaning of the word element or require some mental effort from the consumer in order to make an immediate and direct link with the term that they supposedly refer to.

The proprietor itself maintains that the relevant public is the English-speaking public. It is a known fact that, in English, an apostrophe is used to indicate an omission in a verbal contraction (e.g he´s), or to form the possessive together with the letter “s”. It is incorrect and grammatically incongruous to see an apostrophe after the letter “d” and before the letter “l” in any context, but even more so if the public recognises that it occurs as a substitute for the second letter of a known adjective. In this way, the example given in the guidelines is arbitrary/fanciful and comes within the first bullet point. It is capable of being distinguished from the verbal element in the present case, which is simply the word “delicious” truncated by one letter (the letter “e” as acknowledged by the proprietor). Neither the mark in the instant case nor the mark cited above is capable of changing the meaning of the word element. No mental effort is required of the consumer in order to make an immediate and direct link with the term “delicious” from the point of view of the agreed target public, even in abstracto. In this case, the meaning is immediate and direct when assessed against the food-related goods and services from the point of view of the average consumer in English-speaking countries.

The Cancellation Division accepts the point made by the proprietor that using a different colour for the first two letters of the verbal element sets them apart somewhat from the remaining letters. Nevertheless, a significant part of the relevant public will simply see an obvious misspelling of the word “delicious” using two separate colours, without attaching any particular significance to the letter combination itself. In the context of food-related goods and services, the use of the colour green and/or the use of a simple leaf device is a common way of denoting that the particular goods and services in question are produced or provided/served in a manner that is environmentally sound, an attractive characteristic for the modern consumer.

According to settled case-law, a figurative sign is descriptive if its graphical elements do not divert the relevant public´s attention from the descriptive message conveyed by the words or do not change the descriptive meaning of those words in relation to the goods concerned, or if they reinforce or stress the descriptive meaning of those words in relation to the goods or services concerned (11/07/2012, T-559/10, “Natural beauty” ECLI:EU:T:2012:362, § 25-27; 15/05/2014, T-366/12, “Yoghurt Gums”, ECLI:EU:T:2014:256 § 29-33; 14/01/2015, T-69/14, “melt water”, ECLI:EU:T:2015:8 § 36; 13/09/2016, T-563-15; “APOTEKE“ ECLI:EU:T:2016:467, § 47; 17/12/2015, T-79/15, “figurative mark 3D”, ECLI:EU:T:2015:999, §28).

In the context of comestibles including the service thereof, the graphic elements do not take from the descriptive message conveyed to the relevant consumer here. They do not give rise to a difference between the mark and the mere perception of the verbal element, such that would change its descriptive meaning in relation to the goods or food/drink-related services.

The proprietor cites a finding in an Opposition decision in support of its claim. However, opposition proceedings and decisions are subject to different criteria of assessment. The findings are not relevant to Cancellation proceedings based on absolute grounds (which inure to the benefit of the public).

It follows that the link between the sign and the goods referred to in the application for registration in Classes 29 and 30, which can be objectively generalised as food and beverages, is sufficiently close for the sign to fall within the scope of the prohibition laid down by Article 7(1)(c) and Article 7(2) EUTMR, regardless of whether or not it is pronounced in an identical way. The same applies to those services which are directly related to food and beverages in class 43, namely services for providing food and drink; bar services; cafés; cafeterias; canteens; catering (food and drink -); restaurants; self-service restaurants; snack-bars; cafe, bar and restaurant services; catering; In both cases, the relevant consumer immediately understands that the comestibles sold or served under the imputed mark are tasty and have regard for environmental practices (sustainability etc).

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.

According to settled case-law, the signs referred to in Article 7(1)(b) EUTMR are regarded as incapable of performing the essential function of a trade mark, namely of identifying the origin of the goods, thereby enabling the consumer who acquired the goods to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (see judgment of 27/02/2002, T 79/00, ‘LITE’, paragraph 26).

‘the distinctive character of a trade mark is determined on the basis of the fact that that mark can be immediately perceived by the relevant public as designating the commercial origin of the goods or services in question’ (judgment of 15/09/2005, T 320/03, ‘LIVE RICHLY’, paragraph 88).

The distinctive character 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 (judgment of 27/11/2003, T 348/02, ‘Quick’, paragraph 29).

Those contested services in class 43 which do not directly relate to comestibles (or the service thereof), namely temporary accommodation; accommodation bureaux [hotels, boarding houses]; accommodation reservations (Temporary -); boarding for animals; boarding house bookings; boarding houses; day-nurseries [crèches]; holiday camp services [lodging]; hotel reservations; hotels; motels; providing campground facilities; rental of chairs, tables, table linen, glassware; rental of cooking apparatus; rental of drinking water dispensers; rental of meeting rooms; rental of temporary accommodation; rental of tents; rental of transportable buildings; retirement homes; tourist homes; hotel services; holiday camp services (accommodation); rental of meeting rooms all concern accommodation services of various kinds (people or animals), or the rental of premises and goods which may be used for catering purposes.

Although it cannot be said that there is an unquestionably direct link between the mark and all these remaining services such that would definitively bring it within the ambit of Article 7(1)(c) EUTMR, the relevant public will be bound to conclude that it is not a badge of origin in relation to them. There is not enough clear, blue water between the mark and these services. Rather, the average consumer in (at least) the English-speaking part of the territory will infer that the food and/or beverages available in said premises (for people or animals), or their provision, as facilitated by services which are ancillary to catering, are tasty. This is a promise in marketing-speak, a laudatory commitment designed to attract consumers. As a consequence, the consumer would not consider the sign indicative of the commercial origin of these services. The mark is devoid of distinctive character in their regard pursuant to Article 7(1)(b) EUTMR.

Conclusion

As the mark the subject of the proceedings is absent distinctive character for the purpose of Article 7(1)(b) EUTMR in respect of all of the contested goods and services, it follows that it is not necessary or relevant to take other (different) registrations, decisions or refusals into account as cited by the parties.

In the present case, the mark is either capable of describing or ascribing characteristics of all of the goods and services registered to (at least) the English-language speaking, average consumer, or it will not be indicative of commercial origin in their regard. The message delivered by the expression is obvious to a significant part of the relevant public, and was capable of being grasped immediately and without further reflection at the material time.

Therefore, the cancellation request is well-founded pursuant to Article 59(1)(a) EUTMR in conjunction with Article 7(1)(c) and Article 7(1)(b) EUTMR, for the reasons stated. Therefore, the contested trade mark must be rejected 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.

The Cancellation Division

Martin LENZ

Keeva DOHERTY

Jessica LEWIS

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.