Decision on the inherent distinctiveness of an application for a European Union trade mark

(Article 7 EUTMR)

Alicante, 28/11/2018

GILL JENNINGS & EVERY LLP

The Broadgate Tower

20 Primrose Street

London EC2A 2ES

REINO UNIDO

Application No:	017589615
Your reference:	RGP15716EM
Trade mark:	WHOLE FOODS MARKET
Mark type:	Word mark
Applicant:	Amazon Technologies, Inc. Attn: Trademarks 410 Terry Ave N Seattle Washington 98109 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 13/04/2018 pursuant to Article 7(1)(b) and (c) and Article 7(2) EUTMR because it found that the trade mark applied for is descriptive and devoid of any distinctive character, for the reasons set out in the attached letter.

Preliminary remark

The Office has decided to waive the objection for the following goods and services:

Class 3 The objection is waived for all the goods for which registration is sought.

Class 5 The objection is waived for the following goods: Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides; absorbent cotton / absorbent wadding; acne treatment preparations; adhesive plasters / sticking plasters; adhesive tapes for medical purposes / adhesive bands for medical purposes; adhesives for dentures; adjuvants for medical purposes; air purifying preparations; air deodorising preparations; alcohol for pharmaceutical purposes; aloe vera preparations for pharmaceutical purposes; aluminium acetate for pharmaceutical purposes; amino acids for medical purposes; amino acids for veterinary purposes; antibacterial soap; antibacterial handwashes; antioxidant pills; antiparasitic preparations; antiparasitic collars for animals; antiseptic cotton; antiseptics; appetite suppressants for medical purposes; appetite suppressant pills; aseptic cotton; babies' diapers [napkins] / babies' napkins [diapers]; babies' napkin-pants [diaper-pants] / babies' diaper-pants / babies' napkin-pants; balms for medical purposes; bandages for dressings; bath salts for medical purposes; belts for sanitary napkins [towels]; breast-nursing pads; bunion pads; preparations for callouses; camphor oil for medical purposes; capsules for medicines; castor oil for medical purposes; charcoal for pharmaceutical purposes; cod liver oil; collagen for medical purposes; compresses; solutions for contact lenses / solutions for use with contact lenses; contact lens cleaning preparations; cooling sprays for medical purposes; corn rings for the feet; corn remedies; cotton for medical purposes; cotton swabs for medical purposes / cotton sticks for medical purposes; deodorants for clothing and textiles; detergents for medical purposes; diagnostic preparations for medical purposes; diapers for pets; disinfectant soap; disinfectants for hygiene purposes; dog washes [insecticides]; douching preparations for medical purposes; firstaid boxes, filled; fly catching paper; gauze for dressings; herbal extracts for medical purposes; herbicides / preparations for destroying noxious plants / weedkillers; hydrogen peroxide for medical purposes; infant formula; insect repellents; insect repellent incense; insecticidal animal shampoo; insecticidal veterinary washes; laxatives; lice treatment preparations [pediculicides]; lotions for pharmaceutical purposes; lotions for veterinary purposes; medicated eye-washes; medicated dentifrices; medicated after-shave lotions; medicated shampoos; medicated toiletry preparations; medicated hair lotions; medicated dry shampoos; medicated shampoos for pets; medicated soap; medicinal alcohol; medicinal mud / medicinal sediment [mud]; medicinal hair growth preparations; medicine cases, portable, filled; medicines for alleviating constipation; medicines for dental purposes; medicines for human purposes; medicines for veterinary purposes; menstruation bandages / sanitary pads; mineral water salts; mothproofing preparations; mothproofing paper / mothproof paper; mouthwashes for medical purposes; mud for baths; napkins for incontinents / diapers for incontinents; oil of turpentine for pharmaceutical purposes; ointments for pharmaceutical purposes; pants, absorbent, for incontinents; panty liners [sanitary]; pastilles for pharmaceutical purposes / lozenges for pharmaceutical purposes; pearl powder for medical purposes; pectin for pharmaceutical purposes; pesticides; petroleum jelly for medical purposes; pharmaceutical preparations; pharmaceutical preparations for treating sunburn; pharmaceutical preparations for skin care; pharmaceutical preparations for treating dandruff; pharmaceuticals; plant extracts for pharmaceutical purposes; pre-filled syringes for medical purposes; remedies for foot perspiration; remedies for perspiration; repellents for dogs; salts for mineral water baths; salts for medical purposes; sanitary panties / menstruation knickers / sanitary knickers / sanitary pants; sanitary tampons / menstruation tampons; sanitary towels / sanitary napkins; sea water for medicinal bathing; serums; slimming pills; smelling salts; sodium salts for medical purposes; sterilising preparations; sunburn ointments; tanning pills; therapeutic preparations for the bath; tissues impregnated with pharmaceutical lotions; tonics [medicines]; preparations for the treatment of burns; veterinary preparations; vine disease treating chemicals; wart pencils.

Class 8 The objection is waived for all the goods for which registration is sought.

Class 9 The objection is waived for the following goods: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; compact discs, DVDs and other digital recording media; mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment, computers; fire-extinguishing apparatus; portable and handheld electronic devices for transmitting, storing, manipulating, recording, and reviewing text, images, audio, video and data, including via global computer networks, wireless networks, and electronic communications networks and electronic and mechanical parts and fittings therefor; tablet computers, electronic book readers, audio and video players, electronic personal organizers, personal digital assistants, and global positioning system devices and electronic and mechanical parts and fittings therefor; computer peripheral devices; monitors, displays, wires, cables, modems, printers, disk drives, adapters, adapter cards, cable connectors, plug-in connectors, electrical power connectors, docking stations, and drivers; battery chargers; battery packs; memory cards and memory card readers; speakers, microphones, and headsets; cases, covers, and stands for computers; cases, covers, and stands for portable and handheld electronic devices for transmitting, storing, manipulating, recording, and reviewing text, images, sound, audio, video and data, including via global computer networks; cases, covers, and stands for tablet computers, electronic book readers, audio and video players, electronic personal organizers, personal digital assistants, and global positioning system devices and devices for the display of electronically published materials, namely, books, journals, newspapers, magazines, multimedia presentations; remote controls for portable and handheld electronic devices and computers; terminals for electronically processing credit card payments; apparatus for electronic payment processing; electronic payment terminal; power adapters; USB cables; electronic docking stations; electrical connectors, wires, cables, and adaptors; wireless remote controls for portable electronic devices and computers; headphones and earphones; data synchronization programs, and application development tool programs for personal and handheld computers; computer software for authoring, downloading, transmitting, receiving, editing, extracting, encoding, decoding, displaying, storing and organizing text, graphics, images, and electronic publications; downloadable templates for designing books, short stories, storyboards, screenplays, comics, audio and video files; computer software for the collection, editing, organizing, modifying, book marking, transmission, storage and sharing of data and information; software in the field of text, image and sound transmission and display; database management software; character recognition software; voice recognition software; electronic mail and messaging software; computer software for accessing, browsing and searching online databases; data synchronization software; application development software; parts and fittings for all the aforesaid goods; barcode scanners; a software program, namely an interactive software development tool and run-time environment used to create and develop software applications to provide access to corporate, business, leisure, local and central government, intergovernmental organisations, education, information, non-profit making organisations data and systems using internet and using other network technologies; apparatus and instruments for reproducing sound, images or data; television apparatus and instruments; interactive electronic apparatus in the nature of cameras, video cameras, televisions, mobile phones, tablet computers, laptop computers, computers, global positioning system devices, electronic book readers; remote control units for any of the aforesaid goods; cleaning apparatus for magnetic or optical data media; cleaning apparatus for use with apparatus for recording or reproducing audio, video or data; electrical power supplies; transformers; batteries; cases and cabinets adapted for the storage of magnetic or optical data media; magnetic or optical data media, pre-recorded computer software; pre-recorded software for use with interactive electronic apparatus, game apparatus or amusement apparatus; software, computer software, software products, software operating systems and computer programs, except an interactive software development tool and run-time environment used to create and develop software applications to provide access to corporate, business, leisure, local and central government, intergovernmental organisations, education, information, non-profit making organisations data and systems using internet and using other network technologies; computers, computer hardware, computer firmware, computer software, microcomputers; computer peripheral devices, printers, terminals, monitors, visual display units, keyboards; data storage apparatus, magnetic and optical discs and drives, tape drives; apparatus, products, programs and software for word, data and image processing, information collection, management, presentation and control, databases, database management, computer aided design, work management, telecommunication, datacommunication, radio, television, network communication and management, messaging, multimedia applications management, presentation and control; power cords, power chargers; battery charging devices for portable and handheld electronic devices; electrical, audio, and wires, printers, and connectors; Cases, covers, stands, skins, speakers, accessories, monitors, printers, displays, and keyboards for portable electronic devices; blank computer discs; blank digital storage media; blank electronic storage media; blank smart cards; computer cables; calculators; camera cases; camera tripods; computer mice; computer network routers and hubs; computer accessories, namely, computer leads for external computer cabling in the nature of firewire leads, USB leads; USB-HUBS; flash card readers; projectors, namely, sound projectors and amplifiers; DVD burners; DVD drives; computer peripherals in the nature of wireless cards; media players; media player components and accessories, namely, protective covers and cases for portable media players, chargers, electrical and power cables; video electronics components and accessories, namely, electrical and power cables and chargers; digital electronic components and accessories, namely, holsters, carrying cases, and fitted plastic films known as skins for covering and providing a scratch proof barrier or protection specifically designed for computers, digital audio and media players, MP3 players, mobile phones, personal digital assistants; video electronics and components and accessories therefore in the nature of cords, adapters, battery chargers, peripherals, and styluses; video cables; extension cables; electrical and power cables; converters; USB hardware; computer and memory storage devices, namely, blank flash drives, USB drives, digital USB storage cards and card readers; printer components and accessories, namely, cables; computer software for accessing movies, TV shows, videos and music; Computer game programs; Computer game software; Game software; Interactive game software; Interactive game programs; Computer software development tools; telephones, mobile phones, videophones, cameras; monitors for television receiver; television receivers [TV sets] and television transmitters; remote controllers for television receiver [TV set]; electronic notepads; magnetic data carriers; radio receivers; radio transmitters; video cameras; computer hardware and software; computer software and firmware, namely, operating system programs, data synchronization programs, in the nature of application development tool programs for personal and handheld computers and mobile digital electronic devices; telephony management software, mobile telephone, smartphone and tablet software; telephone-based information retrieval software and hardware; software for the redirection of messages; computer application software for mobile phones, smart phones and tablet devices featuring mobile phone functionality; computer application software and embedded computer application software for mobile phones, smart phones and tablet devices namely, software that enables photos and videos from cameras found on mobile phones, smart phones and tablet devices to be shared in social media for social networking purposes; computer programs for accessing, browsing and searching online databases; computer hardware and software for providing integrated telephone communication with computerized global information networks; parts and accessories for handheld and mobile digital electronic devices; parts and accessories for mobile telephones, smartphones and tablets in the nature of covers, cases, cases made of leather or imitations of leather, covers made of cloth or textile materials, batteries, rechargeable batteries, chargers, chargers for electric batteries, data cables, power cables, headphones, stereo headphones, inear headphones, stereo speakers, audio speakers, audio speakers for home, headsets for wireless communication apparatus; personal stereo speaker apparatus; microphones; car audio apparatus; apparatus for connecting and charging portable and handheld digital electronic devices; user manuals in electronically readable, machine readable or computer readable form for use with, and sold as a unit with, all the aforementioned goods; downloadable software for accessing and managing of computer applications over a global computer network; set-top boxes.

Class 16 The objection is waived for the following goods: Paper and cardboard; bookbinding material; stationery and office requisites, except furniture; adhesives for stationery or household purposes; artists' and drawing materials; paintbrushes; plastic sheets, films and bags for wrapping and packaging; printers' type, printing block; absorbent sheets of paper or plastic for foodstuff packaging; address stamps; address plates for addressing machines; addressing machines; adhesive tape dispensers [office requisites]; adhesive tapes for stationery or household purposes; adhesive bands for stationery or household purposes; adhesives [glues] for stationery or household purposes; advertisement boards of paper or cardboard; albums / scrapbooks; almanacs; announcement cards [stationery]; aquarelles / watercolors [paintings] / watercolours [paintings]; architects' models; arithmetical tables / calculating tables; artists' watercolour saucers / artists' watercolour saucers; atlases; bags [envelopes, pouches] of paper or plastics, for packaging; bags for microwave cooking; balls for ball-point pens; banknotes; banners of paper; bibs of paper; binding strips [bookbinding]; biological samples for use in microscopy [teaching materials]; blackboards; blotters; blueprints / plans; bookbinding apparatus and machines [office equipment]; bookends; bookmarkers; bottle envelopes of paper or cardboard; bottle wrappers of paper or cardboard; boxes of paper or cardboard; bunting of paper; cabinets for stationery [office requisites]; calendars; canvas for painting; carbon paper; cardboard; cardboard tubes; cards / charts; cases for stamps [seals]; chalk for lithography; chalk holders; charcoal pencils; chart pointers, non-electronic; cigar bands; clipboards; clips for offices / staples for offices; cloth for bookbinding / bookbinding cloth; coasters of paper; compasses for drawing; composing frames [printing]; composing sticks; conical paper bags; copying paper [stationery]; cords for bookbinding / bookbinding cords; correcting fluids [office requisites]; correcting ink [heliography]; correcting tapes [office requisites]; covers [stationery] / wrappers [stationery]; cream containers of paper; credit card imprinters, non-electric; desk mats; diagrams; document files [stationery]; document laminators for office use; document holders [stationery]; drawer liners of paper, perfumed or not; drawing pads; drawing pins / thumbtacks; drawing boards; drawing materials; drawing instruments; drawing sets; drawing pens; drawing rulers; duplicators; elastic bands for offices; electrocardiograph paper; electrotypes; embroidery designs [patterns]; engraving plates; engravings; envelope sealing machines for offices; envelopes [stationery]; erasing products; erasing shields; etching needles; etchings; fabrics for bookbinding; face towels of paper; figurines [statuettes] of papier mâché; files [office requisites]; filter paper; filtering materials [paper]; finger-stalls [office requisites]; flags of paper; flower-pot covers of paper / covers of paper for flower pots; folders for papers / jackets for papers; folders [stationery]; forms, printed; fountain pens; franking machines for office use / postage meters for office use; French curves; galley racks [printing]; garbage bags of paper or of plastics; geographical maps; glue for stationery or household purposes / pastes for stationery or household purposes; gluten [glue] for stationery or household purposes; graining combs; greeting cards; gummed tape [stationery]; gummed cloth for stationery purposes; gums [adhesives] for stationery or household purposes; hand labelling appliances; hand-rests for painters; handkerchiefs of paper; handwriting specimens for copying; hat boxes of cardboard; hectographs; histological sections for teaching purposes; holders for stamps [seals]; holders for checkbooks [cheque books]; house painters' rollers; humidity control sheets of paper or plastic for foodstuff packaging; index cards [stationery]; indexes; Indian inks; ink; ink sticks; ink stones [ink reservoirs]; inking pads; inking ribbons; inking sheets for duplicators; inking sheets for document reproducing machines; inking ribbons for computer printers; inkstands; inkwells; isinglass for stationery or household purposes; labels of paper or cardboard; ledgers [books]; letter trays; lithographic stones; loose-leaf binders; manifolds [stationery]; marking chalk; marking pens [stationery]; mats for beer glasses; mimeograph apparatus and machines; modelling clay; modelling wax, not for dental purposes; modelling materials; modelling paste; moisteners [office requisites]; moisteners for gummed surfaces [office requisites]; money clips; moulds for modelling clays [artists' materials] / molds for modelling clays [artists' materials]; apparatus for mounting photographs; musical greeting cards; nibs; nibs of gold; numbering apparatus; numbers [type]; obliterating stamps; office perforators; office requisites, except furniture; packaging material made of starches; packing [cushioning, stuffing] materials of paper or cardboard; pads [stationery]; page holders; paint boxes [articles for use in school]; paint trays; painters' brushes; painters' easels; palettes for painters; pantographs [drawing instruments]; paper; paper for recording machines; paper sheets [stationery]; paper clasps; luminous paper; paper tapes and cards for the recordal of computer programmes; paper for radiograms; paper ribbons; paper shredders for office use; paper knives [cutters] [office requisites] / paper cutters [office requisites] / paper knives [office requisites]; paper coffee filters; paper bows; paper-clips; paperweights; papier mâché; parchment paper; passport holders; pastels [crayons]; pen clips; pen cases / boxes for pens; pen wipers; pencil sharpening machines, electric or non-electric; pencil leads; pencil holders; pencil lead holders; pencil sharpeners, electric or non-electric; pencils; penholders; pens [office requisites]; perforated cards for Jacquard looms; photograph stands; place mats of paper; plastic film for wrapping; plastic bubble packs for wrapping or packaging; plastic cling film, extensible, for palletization; plastic bags for pet waste disposal; plastics for modelling; polymer modelling clay; portraits; postage stamps; printed sheet music; printers' blankets, not of textile; printers' reglets; printing blocks; printing type; printing sets, portable [office requisites]; punches [office requisites]; rice paper; rollers for typewriters; rubber erasers; school supplies [stationery]; scrapers [erasers] for offices; sealing stamps; sealing wax; sealing machines for offices; sealing compounds for stationery purposes; sealing wafers; seals [stamps]; self-adhesive tapes for stationery or household purposes; sewing patterns; sheets of reclaimed cellulose for wrapping; shields [paper seals]; signboards of paper or cardboard; silver paper; slate pencils; song books; spools for inking ribbons; spray chalk; square rulers for drawing; squares for drawing; stamp pads; stamp stands; stamps [seals]; stands for pens and pencils; stapling presses [office requisites]; starch paste [adhesive] for stationery or household purposes; stationery; steatite [tailor's chalk]; steel letters; steel pens; stencil cases; stencil plates; stencils [stationery]; stencils; stuffing of paper or cardboard; T-squares for drawing; table linen of paper; table napkins of paper; table runners of paper; tablecloths of paper; tablemats of paper; tags for index cards; tailors' chalk; terrestrial globes; tickets; tissues of paper for removing make-up; toilet paper / hygienic paper; towels of paper; tracing patterns; tracing paper; tracing cloth; tracing needles for drawing purposes; trading cards, other than for games; transfers [decalcomanias] / decalcomanias; trays for sorting and counting money; type [numerals and letters] / letters [type]; typewriter ribbons; typewriter keys; typewriters, electric or non-electric; vignetting apparatus; viscose sheets for wrapping; washi; waxed paper; wood pulp board [stationery]; wood pulp paper; wrapping paper / packing paper; wristbands for the retention of writing instruments; writing slates; writing or drawing books; writing chalk; writing materials; writing paper; writing cases [stationery]; writing cases [sets]; writing brushes; writing instruments; writing board erasers; Xuan paper for Chinese painting and calligraphy.

Class 21 The objection is waived for all the goods for which registration is sought.

Class 25 The objection is waived for all the goods for which registration is sought.

Class 31 Flowers, dried, for decoration; plants, dried, for decoration.

Class 35 The objection is waived for the following goods: Advertising; business management; business administration; office functions; import agency services; retail services and online retail services connected with the sale of flowers, dried, for decoration; retail services and online retail services connected with the sale of plants, dried, for decoration; retail store services in the field of cosmetics, cleaning supplies, beauty supplies, personal care products, tissues, toilet paper, napkins; customer loyalty rewards program for shoppers; information, advisory and consultancy services relating to the aforesaid.

Class 38 The objection is waived for all the services for which registration is sought.

Class 39 The objection is waived for all the services for which registration is sought, namely providing information in the fields of travel via global computer networks, previously listed in Class 41.

Class 41 The objection is waived for the following services: Sporting activities; conducting guided tours; providing recreational facilities; ticket agency services; educational and entertainment services, namely providing classes, seminars and workshops in the fields of medicine, science, travel, entertainment, sports activities; television programs on the subject of medicine, science, travel, entertainment, sports activities via global computer networks; providing information in the field of sports activities via a global computer network; providing online newsletters in the fields of medicine, science, travel, entertainment, sports activities; providing a website featuring non-downloadable publications in the nature of articles and videos in the fields of medicine, science, travel, entertainment, sports activities; motivational speaker services in the fields of medicine, science, travel, entertainment, sports activities; providing on-line portals for entertainment in the field of movies, television, audiovisual works, music, audio works, books, theatre, literary works, sporting events, recreational activities, leisure activities, tournaments, art, dance, musicals, exhibitions, sports instruction, clubs, radio, comedy, contests, visual works, games, gaming, festivals, museums, parks, cultural events, concerts, publishing, animation, current events, fashion shows, and multimedia presentations.

Class 42 The objection is waived for the following services: Providing online non-downloadable software for sharing digital content; Providing online non-downloadable software for users to participate in a loyalty program, access and manage user's loyalty account, and access discount offers and coupons; Providing online non-downloadable software for offering and distribution of coupons and discount offers downloaded to customers' loyalty card accounts or mobile device, for the purpose of promoting additional targeted savings and rewarding loyalty; Providing online non-downloadable software that enables users to access coupons, loyalty rewards, rebates, price-comparison information, product reviews, and discount information; Providing online non-downloadable software to enable users to access and interact with information in the fields of coupons, and special offerings; providing information in the fields of science via global computer networks.

Class 44 The objection is waived for the following services: Medical services; veterinary services; hygienic and beauty care for human beings or animals; alternative medicine services; animal grooming; aromatherapy services; beauty salon services; depilatory waxing; flower arranging; gardening; hairdressing; health spa services; health counselling / health counselling; hospice services; landscape gardening; landscape design; manicuring; massage; pet grooming; plant nursery services; rental of sanitation facilities; sauna services; tree planting for carbon offsetting purposes; Turkish bath services; veterinary assistance; wreath making; providing information in the fields of medicine via global computer networks.

Class 45 The objection is waived for all the services for which registration is sought.

The objection is maintained for the remaining goods and services (see below).

Assessment of the applicant’s arguments

The applicant submitted its observations on 13/06/2018, which may be summarised as follows.

1. ‘Wholefoods’ as a one word has a meaning in English. However, the sign applied for consists of two separate words, ‘Whole Foods’, which gives a different impression and is not used in common parlance.

2. The sign applied for was not properly assessed in relation to goods and services in Classes 3, 5, 8, 9, 16, 21, 25, 35, 38, (39), 41, 42, 44 and 45. It is not descriptive of such goods and services. In relation to goods in Classes 32 and 33 the sign cannot be descriptive since the goods in these classes are beverages and not foods.

3. The applicant claims acquired distinctiveness through use of the mark applied for pursuant Article 7(3) EUTMR as a subsidiary claim.

Pursuant to Article 94 EUTMR, it is up to the Office to take a decision based on reasons or evidence on which the applicant has had an opportunity to present its comments.

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).

1. The applicant argues that the space between the words of the sign creates a completely different impression from the word ‘wholefoods’ that appears in the dictionaries. However, a sign composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of the characteristics of those goods or services for the purposes of Article 7(1)(c) EUTMR, unless the sign creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, with the result that the word is more than the sum of its parts (12/01/2005, T‑367/02 - T‑369/02, SnTEM, SnPUR & SnMIX, EU:T:2005:3, § 32).

The space between the words ‘whole’ and ‘foods’ is not of such a nature as to create a different impression, indeed the space between these words will not be perceived aurally. Moreover, the Oxford English Dictionary cited in the notification letter, indicates that the word ‘wholefood’ was ‘formed within English, by compounding’ (whole adjective + food noun).

Therefore, the sign will be perceived as described in the notification letter: wholefoods, food that has been processed as little as possible.

2. In relation to the goods and services for which the objection is maintained in Classes 5, 9, 16, 29, 30, 31, 32, 33, 35, 41, 42, 43 and 44, the Office maintains that the sign is directly descriptive of the kind and quality of the goods and services or it describes their subject matter, informing consumers about what the goods and services relate to.

The goods in Class 5 are edible products which are, consist of, or are formulated with, wholefoods. These goods include any dietetic food, beverage and substance for medical use for humans or animals which have been processed or refined as little as possible.

The goods in Classes 29, 30 and 31 are edible products which are, consist of, or are formulated with, wholefoods. These goods include any food for humans or animals which have been processed or refined as little as possible. This applies not only to raw edible products, but also to processed foods in as much they have been processed as little as possible.

The goods in Classes 32 and 33 are beverages (alcoholic or not). Contrary to the applicant’s argument, beverages are also foods as it can be extracted from the dictionary definition of food: ‘Any nutritious substance that people or animals eat or drink in order to maintain life and growth; nourishment, provisions’ (extracted from Oxford English Dictionary on 23/11/2018 at http://www.oed.com/view/Entry/72632, emphasis added). Therefore, the Office maintains that the sign applied for describes the goods in these Classes as far as they can be considered foods in a broader sense which have been processed or refined as little as possible.

The services in Class 35 are directly linked to those goods for which the descriptive meaning pertains. They consist in the bringing together, for the benefit of others, of a variety of foodstuffs, enabling customers to purchase wholefoods in retail stores or by means of electronic networks. Therefore, the sign applied for equally describes these services (20/03/2002, T‑355/00, Tele Aid, EU:T:2002:79). Moreover, the fact that the sign incorporates the word ‘MARKET’ adds no distinctive character to the mark as a whole. This element simply describes where the services are provided.

The same reasoning applies for services in Class 43. They are directly linked to the foodstuffs described by the sign in Classes 29, 30, 32 and 33 as far as wholefoods would be offered in restaurants and bars. Furthermore, it is possible that establishments in which food is sold provide, at the same time, food and drink to their customers. It is certain that there is a strong link between the services such as the retail of food and the provision of food and drink. Moreover, account is taken of the fact that temporary accommodation establishments offer food and drink as part of their services.

In relation to the remaining goods and services objected to in Classes 9, 16, 41, 42 and 44 the objection is maintained. The sign applied for may be used in trade in relation to these goods and services in a manner that will be undoubtedly perceived by the relevant public as descriptive of the subject matter of the goods and services for which protection is sought. Indeed, it is not difficult to find in the market printed matter, such as books, magazines or pictures in Class 16 or application software and non-downloadable software in Classes 9 and 42, which subject matter are whole foods.

By means of example, a search performed at https://www.amazon.com (the applicant’s website) on 23/11/2018, shows ‘whole foods’ (with the space between the words as the sign applied for) as a category of books relating to nutrition and diet:

And several books listed under this category with the term ‘whole foods’ in their title, inter alia:

• The Whole Foods Cookbook: 120 Delicious and Healthy Plant-Centered Recipes by John Mackey and Alona Pulde;

• The Whole Foods Diet: The Lifesaving Plan for Health and Longevity by John Mackey and Alona Pulde;

• Healing With Whole Foods: Asian Traditions and Modern Nutrition (3rd Edition) by Paul Pitchford;

• Whole Foods: Plant-Based Whole Foods For Beginners: 30 Simple and Tasty Recipes for Exciting Meals and Healthy Weight Loss by J.S. West;

• Hidden Healing Powers of Super & Whole Foods: Plant Based Diet Proven To Prevent & Reverse Disease by CookNation

• At Home in the Whole Food Kitchen: Celebrating the Art of Eating Well by Amy Chaplin and Johnny Miller.

And many other titles, also available in electronic and audio formats (for example electronic publications; downloadable prerecorded audio content, information, and commentary; downloadable electronic books, magazines, periodicals, newsletters, newspapers, journals, and other publications; downloadable audiobooks and digital audio files; recording discs; sound recordings among other formats of audio and visual content applied for in Class 9).

The same applies for software:

• Whole Foods & Nutrition by Adka Apps, described as containing ‘a list of useful information to help you know all important about the nutritious food through several sections on health that address different queries you may have’ and ‘providing you with information on the Most Nutritious Foods, Understanding Whole Foods, Foods for Every Vitamin and Mineral, Foods for rapid weight loss, Foods for Healthy Eyes, Foods for pregnant, Whole Foods Nutrition Kids, Foods to Gain Muscle Mass’.

• Whole Food Secrets by Conduit Mobile, described as ‘traditional whole food nutrition & cookery school. Enjoy our free recipes & become inspired to eat the natural (& tasty) way!’

Therefore, the public will not perceive the sign applied for as an indication capable of distinguishing the goods and services for which registration is sought in those Classes from those of other undertakings; on the contrary, consumers will perceive it as an indication of their content, main theme or substance.

The same reasoning applies to those services which provide information about or consist of activities (education, training, culture, entertainment) related to food, health and healthy life, nutrition or life style in Classes 41 and 44 or are aimed at producing whole foods such as agriculture services in Class 44.

For the abovementioned reasons, and pursuant to Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR, the application for EUTM No 17 589 615, ‘WHOLE FOODS MARKET’ is declared to be descriptive and non-distinctive pursuant to Article 7(1)(b), (c), in Ireland, Malta and the United Kingdom for the following goods and services:

Class 5 Dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; albumin dietary supplements; albuminous foodstuffs for medical purposes; alginate dietary supplements; almond milk for pharmaceutical purposes; asthmatic tea; candy, medicated; casein dietary supplements; chewing gum for medical purposes; diabetic bread adapted for medical use; dietary fibre / dietary fiber; dietary supplements for animals; dietetic foods adapted for medical purposes; dietetic beverages adapted for medical purposes; dietetic substances adapted for medical use; digestives for pharmaceutical purposes; food for babies; herbal teas for medicinal purposes; linseed dietary supplements / flaxseed dietary supplements; linseed oil dietary supplements / flaxseed oil dietary supplements; malted milk beverages for medical purposes; medical preparations for slimming purposes; medicated animal feed; medicinal infusions; medicinal tea; medicinal oils; medicinal herbs; medicinal roots; medicinal drinks; mineral waters for medical purposes; mineral food supplements; nutritional supplements; powdered milk for babies; protein dietary supplements; protein supplements for animals; sugar for medical purposes; vitamin preparations; wheat germ dietary supplements; yeast dietary supplements.

Class 9 Computer software; software; electronic publications concerning goods and services offered to small business owners and shoppers; downloadable prerecorded audio and audiovisual content, information, and commentary; downloadable electronic books, magazines, periodicals, newsletters, newspapers, journals, and other publications; downloadable electronic publications in the nature of fiction, non-fiction, comics and screenplays via computer and communications networks; downloadable films and movies featuring fiction and non-fiction stories provided via computer and communications networks; downloadable audiobooks and digital audio files; electronic bulletin boards; recording discs; sound recordings; video recordings; cinematographic films; exposed photographic films or slides; electronic books; downloadable audio, video and audiovisual content provided via computer and communications networks featuring movies, TV shows, videos and music; downloadable digital audio files featuring music, news, voice and spoken word; Computer application software for mobile devices, internet browsers, set-top boxes, electronic readers, and tablet computers, namely, software for video games and general interest software applications for shopping, product comparison, entertainment, news, task management, personal management, music and videos.

Class 16 Printed matter; photographs; instructional and teaching materials; booklets; books; catalogues; chromolithographs [chromos] / chromos; comic books; flyers; graphic prints; graphic reproductions; graphic representations; lithographic works of art; lithographs; manuals [handbooks] / handbooks [manuals]; newsletters; newspapers; note books; oleographs; paintings [pictures], framed or unframed; pamphlets; periodicals; photo-engravings; photographs [printed]; pictures; placards of paper or cardboard; postcards; posters; printed timetables; printed publications; printed coupons; prints [engravings]; prospectuses; stickers [stationery]; teaching materials [except apparatus]; transparencies [stationery].

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 fat; ajvar [preserved peppers]; albumen for culinary purposes; albumin milk / protein milk; alginates for culinary purposes; almond milk for culinary purposes; almond milk; almond milk-based beverages; almonds, ground; aloe vera prepared for human consumption; anchovy, not live; animal marrow for food; apple purée; arrangements of processed fruit; artichokes, preserved; aubergine paste / eggplant paste; bacon; beans, preserved; berries, preserved; edible birds' nests; black pudding [blood sausage] / black pudding / blood sausage; bone oil, edible; preparations for making bouillon; broth / bouillon; broth concentrates / bouillon concentrates; bulgogi [Korean beef dish]; butter; buttercream; candied nuts; caviar; charcuterie; cheese; clams, not live; cocoa butter for food; coconut butter; coconut, desiccated; coconut fat; coconut oil for food; coconut milk; coconut milk for culinary purposes; coconut milk-based beverages; compotes; condensed milk; corn dogs; cranberry sauce [compote]; crayfish, not live; cream [dairy products]; croquettes; crustaceans, not live; crystallized fruits / frosted fruits; curd; dates; escamoles [edible ant larvae, prepared]; extra virgin olive oil; falafel; fat-containing mixtures for bread slices; edible fats; fatty substances for the manufacture of edible fats; fish fillets; fish, not live; fish, preserved; fish, tinned [canned (Am)]; fish meal for human consumption; fish mousses; fish roe, prepared; fish-based foodstuffs; flavoured nuts / flavored nuts; freeze-dried meat / lyophilised meat / lyophilized meat; freeze-dried vegetables / lyophilised vegetables / lyophilized vegetables; fruit, preserved; fruit, stewed; fruit jellies; fruit pulp; fruit salads; fruit peel; fruit chips; fruit preserved in alcohol; fruit-based snack food; frozen fruits; fruits, tinned [canned (Am)]; galbi [grilled meat dish]; game, not live; preserved garlic; gelatine; gherkins; ginger jam; guacamole [mashed avocado]; ham; hazelnuts, prepared; herrings, not live; hot dog sausages; hummus [chickpea paste]; edible insects, not live; isinglass for food; jams; jellies for food; kephir [milk beverage] / kefir [milk beverage]; kimchi [fermented vegetable dish]; kumys [kumyss] [milk beverage] / koumiss [kumiss] [milk beverage]; lard; lecithin for culinary purposes; lemon juice for culinary purposes; lentils, preserved; linseed oil for culinary purposes / flaxseed oil for culinary purposes; liver pâté / liver pastes; liver; lobsters, not live; low-fat potato crisps / low-fat potato chips; maize oil for food / corn oil for food; margarine; marmalade; meat; meat jellies; meat, preserved; meat, tinned [canned (Am)]; milk; milk beverages, milk predominating; milk products; milk shakes; milk ferments for culinary purposes; milk substitutes; mushrooms, preserved; mussels, not live; non-alcoholic eggnog; nut-based spreads; nuts, prepared; oat milk; oils for food; olive oil for food; olives, preserved; onion rings; onions, preserved; oysters, not live; palm kernel oil for food; palm oil for food; peanut butter; peanut milk for culinary purposes; peanut milk; peanut milk-based beverages; peanuts, prepared; peas, preserved; pectin for culinary purposes; pickles; pollen prepared as foodstuff; pork; potato crisps / potato chips; potato fritters; potato flakes; potato-based dumplings; poultry, not live; powdered eggs; powdered milk; prawns, not live; prostokvasha [soured milk]; raisins; rape oil for food / colza oil for food; rennet; rice milk; rice milk for culinary purposes; ryazhenka [fermented baked milk]; salmon, not live; salted meats; salted fish; sardines, not live; sauerkraut; sausage casings, natural or artificial; sausages; sausages in batter; sea-cucumbers, not live; seaweed extracts for food; seeds, prepared; sesame oil for food; shellfish, not live; shrimps, not live; silkworm chrysalis for human consumption; smetana [sour cream]; snail eggs for consumption; preparations for making soup; soups; soya beans, preserved, for food; soya milk; soya bean oil for food; spiny lobsters, not live; suet for food; sunflower oil for food; sunflower seeds, prepared; sweet corn, processed; tahini [sesame seed paste]; toasted laver; tofu; tomato purée; tomato juice for cooking; tomato paste; tripe; truffles, preserved; tuna, not live; vegetable soup preparations; vegetable juices for cooking; vegetable salads; vegetable mousses; vegetable marrow paste; vegetable-based cream; vegetables, preserved; vegetables, cooked; vegetables, dried; vegetables, tinned [canned (Am)]; whey; whipped cream; white of eggs; yakitori; yoghurt / yogurt; yolk of eggs.

Class 30 Coffee, tea, cocoa and artificial coffee; rice; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; edible ices; sugar, honey, treacle; yeast, baking-powder; salt; mustard; vinegar, sauces (condiments); spices; ice; agave syrup [natural sweetener]; allspice; almond paste; almond confectionery; aniseed; aromatic preparations for food; artificial coffee; baking powder; baking soda [bicarbonate of soda for cooking purposes] / bicarbonate of soda for cooking purposes [baking soda]; baozi [stuffed buns]; barley meal; batter mixes for okonomiyaki [Japanese savoury pancakes] / batter mixes for okonomiyaki [Japanese savory pancakes]; bean meal; beer vinegar; bibimbap [rice mixed with vegetables and beef]; binding agents for ice cream; biscuits / cookies; bread; bread rolls; breadcrumbs; buns; burritos; cake powder; cake batter / cake dough; cake frosting [icing]; cakes; candy; candy decorations for cakes; capers; caramels [candy]; celery salt; cereal preparations; cereal bars; cereal-based snack food; chamomile-based beverages; cheeseburgers [sandwiches]; chewing gum; chicory [coffee substitute]; chips [cereal products]; chocolate; chocolate beverages with milk; chocolate mousses; chocolate decorations for cakes; chocolate spreads containing nuts; chocolate-based beverages; chocolate-based spreads; chocolate-coated nuts; chow-chow [condiment]; chutneys [condiments]; cinnamon [spice]; cloves [spice]; cocoa; cocoa beverages with milk; cocoa-based beverages; coffee flavourings / coffee flavorings; coffee; coffee beverages with milk; coffee-based beverages; condiments; confectionery for decorating Christmas trees; confectionery / sugar confectionery; cooking salt; corn flakes / maize flakes; corn flour / corn meal / maize flour / maize meal; corn, milled / maize, milled; corn, roasted / maize, roasted; couscous [semolina]; crackers; cream of tartar for culinary purposes; crushed barley; crushed oats; curry [spice]; custard; dessert mousses [confectionery]; dough; dressings for salad; dulce de leche; essences for foodstuffs, except etheric essences and essential oils; ferments for pastes; flavourings, other than essential oils, for cakes / flavorings, other than essential oils, for cakes; flavourings, other than essential oils, for beverages / flavorings, other than essential oils, for beverages; flour-based dumplings; flowers or leaves for use as tea substitutes; fondants [confectionery]; food flavourings, other than essential oils / food flavorings, other than essential oils; freeze-dried dishes with main ingredient being rice / lyophilised dishes with main ingredient being rice / lyophilized dishes with main ingredient being rice; freeze-dried dishes with main ingredient being pasta / lyophilised dishes with main ingredient being pasta / lyophilized dishes with main ingredient being pasta; fruit jellies [confectionery]; fruit coulis [sauces]; garden herbs, preserved [seasonings]; gimbap [Korean rice dish]; ginger [spice]; gingerbread; glucose for culinary purposes; gluten prepared as foodstuff; gluten additives for culinary purposes; golden syrup; groats for human food; halvah; ham glaze; high-protein cereal bars; hominy; hominy grits; honey; hot dog sandwiches; husked barley; husked oats; ice cream; ice, natural or artificial; ice for refreshment; ice cubes; iced tea; infusions, not medicinal; instant rice; jiaozi [stuffed dumplings]; ketchup [sauce]; leaven; linseed for culinary purposes [seasoning] / flaxseed for culinary purposes [seasoning]; liquorice [confectionery]; lozenges [confectionery] / pastilles [confectionery]; macaroni; macaroons [pastry]; malt biscuits; malt extract for food; malt for human consumption; maltose; marinades; marzipan; mayonnaise; meal / flour; meat pies; meat tenderizers for household purposes; meat gravies; minced garlic [condiment]; mint for confectionery; mirror icing [mirror glaze]; molasses for food; muesli; mustard meal; natural sweeteners; noodle-based prepared meals; noodles / ribbon vermicelli; nut flours; nutmegs; oat flakes; oat-based food; oatmeal; okonomiyaki [Japanese savoury pancakes] / okonomiyaki [Japanese savory pancakes]; onigiri [rice balls]; palm sugar; pancakes; edible paper; pasta; pasta sauce; pastries; pastry dough; pâtés en croûte; peanut confectionery; pelmeni [dumplings stuffed with meat]; pepper; peppermint sweets; peppers [seasonings]; pesto [sauce]; petit-beurre biscuits; petits fours [cakes]; piccalilli; pies; pizzas; popcorn; potato flour; powders for making ice cream; pralines; propolis / bee glue; puddings; quiches; ramen [Japanese noodle-based dish]; ravioli; relish [condiment]; rice cakes; rice pudding; rice pulp for culinary purposes; edible rice paper; rice-based snack food; royal jelly; rusks; saffron [seasoning]; sago; salt for preserving foodstuffs; sandwiches; sauces [condiments]; sausage binding materials; sea water for cooking; seasonings; seaweed [condiment]; processed seeds for use as a seasoning; semolina; sesame seeds [seasonings]; sherbets [ices] / sorbets [ices]; soya flour; soya sauce; soya bean paste [condiment] / miso [condiment]; spaghetti; spring rolls; star aniseed; starch for food; stick liquorice [confectionery]; preparations for stiffening whipped cream; sugar; sushi; sweetmeats [candy]; tabbouleh; tacos; tapioca; tapioca flour; tarts; tea; tea-based beverages; thickening agents for cooking foodstuffs; tomato sauce; tortillas; turmeric; unleavened bread; unroasted coffee; vanilla flavourings for culinary purposes / vanilla flavorings for culinary purposes; vanillin [vanilla substitute]; vareniki [stuffed dumplings]; vegetal preparations for use as coffee substitutes; vermicelli [noodles]; vinegar; waffles; wheat flour; wheat germ for human consumption; yeast; frozen yoghurt [confectionery ices] / frozen yogurt [confectionery ices].

Class 31 Raw and unprocessed agricultural, aquacultural, horticultural and forestry products; raw and unprocessed grains and seeds; fresh fruits and vegetables, fresh herbs; natural plants and flowers; bulbs, seedlings and seeds for planting; live animals; foodstuffs and beverages for animals; malt; algae, unprocessed, for human or animal consumption / seaweed, unprocessed, for human or animal consumption; algarovilla for animal consumption; almonds [fruits]; aloe vera plants; anchovy, live; animal foodstuffs; animal fattening preparations / livestock fattening preparations; aromatic sand [litter] for pets; arrangements of fresh fruit; artichokes, fresh; bagasses of cane [raw material]; raw barks; barley; beans, fresh; beet, fresh; berries, fresh; beverages for pets; bird food; bran; bran mash for animal consumption; bred stock; by-products of the processing of cereals, for animal consumption / residual products of cereals for animal consumption; cereal seeds, unprocessed; chestnuts, fresh; edible chews for animals; chicory roots; chicory, fresh; Christmas trees; citrus fruit, fresh; cocoa beans, raw; coconut shell; coconuts; copra; crayfish, live; crustaceans, live; cucumbers, fresh; cuttle bone for birds; distillery waste for animal consumption; dog biscuits; draff; preparations for egg laying poultry; eggs for hatching, fertilized / eggs for hatching, fertilised; fish spawn; fish, live; fish meal for animal consumption; fishing bait, live; flax meal [fodder]; flower bulbs / bulbs; flowers, natural; fodder / cattle food / forage; fruit, fresh; fruit residue [marc] / marc; garden herbs, fresh; garlic, fresh; grains [cereals]; grains for animal consumption; grapes, fresh; groats for poultry; hay; hazelnuts, fresh; herrings, live; hop cones; hops; edible insects, live; juniper berries; kola nuts / cola nuts; leeks, fresh; lemons, fresh; lentils, fresh; lettuce, fresh; lime for animal forage; linseed for animal consumption / flaxseed for animal consumption; linseed meal for animal consumption / flaxseed meal for animal consumption; edible linseed, unprocessed / edible flaxseed, unprocessed; litter for animals; litter peat; lobsters, live; locust beans, raw; maize; maize cake for cattle; malt for brewing and distilling; mash for fattening livestock; meal for animals; menagerie animals; mushroom spawn for propagation; mushrooms, fresh; mussels, live; nettles; nuts [fruits]; oats; oil cake / cattle cake; olives, fresh; onions, fresh; oranges, fresh; oysters, live; palm trees; palms [leaves of the palm tree]; peanut meal for animals; peanut cake for animals; peanuts, fresh; peas, fresh; peppers [plants]; pet food; pine cones; plants; pollen [raw material]; potatoes, fresh; poultry, live; rape cake for cattle; residue in a still after distillation; rhubarb, fresh; rice meal for forage; rice, unprocessed; roots for animal consumption; rose bushes; rough cork; rye; salmon, live; salt for cattle; sanded paper [litter] for pets; sardines, live; sea-cucumbers, live; seed germ for botanical purposes; seedlings; seeds for planting / plant seeds; edible sesame, unprocessed; shellfish, live; shrubs / bushes; silkworm eggs; silkworms; spinach, fresh; spiny lobsters, live; squashes, fresh; stall food for animals; straw mulch; straw litter; straw [forage]; strengthening animal forage; sugarcane; unprocessed sweet corn ears [husked or unhusked]; trees; truffles, fresh; trunks of trees; tuna, live; turf, natural / sod; undressed timber; unsawn timber; vegetable marrows, fresh; vegetables, fresh; vine plants; wheat; wheat germ for animal consumption; wood chips for the manufacture of wood pulp; wreaths of natural flowers; yeast for animal consumption.

Class 32 Beers; mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages; preparations for making aerated water; aerated water; aloe vera drinks, non-alcoholic; aperitifs, non-alcoholic; beer; beer wort; beer-based cocktails; preparations for making beverages; cider, non-alcoholic; cocktails, non-alcoholic; essences for making beverages; extracts of hops for making beer; fruit juices / fruit juice; fruit nectars, non-alcoholic; ginger beer / ginger ale; grape must, unfermented; isotonic beverages; kvass [non-alcoholic beverage]; lemonades; preparations for making liqueurs; lithia water; malt beer; malt wort; mineral water [beverages]; preparations for making mineral water; must; non-alcoholic fruit extracts; non-alcoholic fruit juice beverages; non-alcoholic beverages; non-alcoholic honey-based beverages; non-alcoholic beverages flavoured with coffee / non-alcoholic beverages flavored with coffee; non-alcoholic beverages flavoured with tea / non-alcoholic beverages flavored with tea; orgeat; pastilles for effervescing beverages; powders for effervescing beverages; protein-enriched sports beverages; rice-based beverages, other than milk substitutes; sarsaparilla [non-alcoholic beverage]; seltzer water; sherbets [beverages] / sorbets [beverages]; smoothies; soda water; soft drinks; soya-based beverages, other than milk substitutes; syrups for beverages; syrups for lemonade; table waters; tomato juice [beverage]; vegetable juices [beverages]; waters [beverages]; whey beverages; sports drinks; energy drinks; concentrates, syrups and powders used in the preparation of energy drinks and fruit-flavored beverages.

Class 33 Alcoholic beverages (except beers); anise [liqueur]; anisette [liqueur]; aperitifs; arrack [arak] / arak [arrack]; baijiu [Chinese distilled alcoholic beverage]; alcoholic beverages, except beer; alcoholic beverages containing fruit; bitters; brandy; cider; cocktails; curacao; digesters [liqueurs and spirits]; distilled beverages; alcoholic essences; alcoholic extracts; fruit extracts, alcoholic; gin; hydromel [mead] / mead [hydromel]; kirsch; liqueurs; nira [sugarcane-based alcoholic beverage]; peppermint liqueurs; perry; piquette; pre-mixed alcoholic beverages, other than beer-based; rice alcohol; rum; sake; spirits [beverages]; vodka; whisky; wine.

Class 35 Retail services and online retail services connected with the sale of Ajvar [preserved peppers], Albumen for culinary purposes, Albumin milk, Alginates for culinary purposes, Almonds, ground, Aloe vera prepared for human consumption, Anchovy, Apple purée, Bacon, Beans, preserved, Black pudding, Bone oil, edible, Broth, Broth concentrates, Butter, Buttercream, Caviar, Charcuterie, Cheese, Clams [not live], Cocoa butter, Coconut butter, Coconut, desiccated, Coconut fat and Coconut oil; retail services and online retail services connected with the of sale Compotes, Condensed milk, Corn oil, Cranberry sauce [compote], Crayfish, not live, Cream [dairy products], Croquettes, Crustaceans, not live, Curd, Dates, Edible birds' nests, Edible fats, Edible oils, Eggs, Fat-containing mixtures for bread slices, Fatty substances for the manufacture of edible fats, Fish fillets, Fish meal for human consumption, Fish mousses, Fish, not live, Fish, preserved and Fish, tinned [canned (Am)]; retail services and online retail services connected with the sale of 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, Gelatine, Gherkins, Ginger jam, Ham, Herrings, Hummus [chickpea paste], Isinglass for food, Jams, Jellies for food, Kefir [milk beverage] and Kimchi [fermented vegetable dish]; retail services and online retail services connected with sale the of 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 ferments for culinary purposes, Milk products, Milk shakes and Mushrooms, preserved; retail services and online retail services connected with the sale of Mussels, not live, Non-alcoholic egg nog, 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 and Prawns, not live; retail services and online retail services connected with the sale of Preparations for making bouillon, Preparations for making soup, Preserved garlic, Processed fish spawn, Processed seeds, Processed sunflower seeds, Prostokvasha [soured milk], Raisins, Rape oil for food, Rennet, Ryazhenka [fermented baked milk], Salmon, Salted fish, Salted meats, Sardines, Sauerkraut, Sausages, Sausages in batter, Sea-cucumbers, not live, Seaweed extracts for food, Sesame oil, Shellfish, not live and Shrimps, not live; retail services and online retail services connected with the sale of Silkworm chrysalis, for human consumption, Smetana [sour cream], Snail eggs for consumption, 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 mousses and Vegetable salads; retail services and online retail services connected with the sale of Vegetable soup preparations, Vegetables, cooked, Vegetables, dried, Vegetables, preserved, Vegetables, tinned [canned (Am)], Whey, Whipped cream, White of eggs, Yogurt, Yolk of eggs, Allspice, Almond confectionery, Almond paste, Aniseed, Aromatic preparations for food, Artificial coffee, Baking powder, Baking soda [bicarbonate of soda for cooking purposes], Barley meal, Bean meal, Bee glue, Beer vinegar and Binding agents for ice cream; retail services and online retail services connected with the sale of Bread, Bread rolls, Breadcrumbs, Buns, Cake frosting [icing], Cake powder, Cakes, Candy, Capers, Caramels [candy], Celery salt, Cereal bars, Cereal-based snack food, Cereal preparations, Cheeseburgers [sandwiches], Chewing gum, Chicory [coffee substitute], Chips [cereal products], Chocolate, Chocolate-based beverages, Chocolate beverages with milk, Chocolate mousses, Chow-chow [condiment], Chutneys [condiments] and Cinnamon [spice]; retail services and online retail services connected with the sale of Cloves [spice], Cocoa, Cocoa-based beverages, Cocoa beverages with milk, Coffee, Coffee-based beverages, Coffee beverages with milk, Coffee flavorings [flavourings], Condiments, Confectionery, Confectionery for decorating Christmas trees, Cookies, Cooking salt, Corn flakes, Corn meal, Corn, milled, Corn, roasted, Couscous [semolina], s, Cream of tartar for culinary purposes, Crushed barley and Crushed oats; retail services and online retail services connected with the sale of Curry [spice], Custard, Dessert mousses [confectionery], Dough, 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 beverages, Flavorings, other than essential oils, for cakes, Flourmilling products, Fondants [confectionery] and Frozen yogurt [confectionery ices]; retail services and online retail services connected with the sale of Fruit coulis [sauces], 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 and Ice cream; retail services and online retail services connected with the sale of 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 and Mint for confectionery; retail services and online retail services connected with the sale of Molasses for food, Muesli, Mustard, Mustard meal, Natural sweeteners, Noodle-based prepared meals, Noodles, Nutmegs, Oat-based food, Oat flakes, Oatmeal, Palm sugar, Pancakes, Pasta, Pasta sauce, 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 and Pralines; retail services and online retail services connected with the sale of Preparations for stiffening whipped cream, 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, Seaweed [condiment], Semolina, Sorbets [ices], Soya bean paste [condiment], Soya flour, Soya sauce, Spaghetti, Spices and Spring rolls; retail services and online retail services connected with the sale of Star aniseed, Starch for food, Stick liquorice [confectionery], Sugar, Sushi, 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, Unroasted coffee, Vanilla [flavoring] [flavouring] and Vanillin [vanilla substitute]; retail services and online retail services connected with the sale of Vegetal preparations for use as coffee substitutes, Vermicelli [noodles], Vinegar, Waffles, Wheat flour, Wheat germ for human consumption, Yeast, Algae for human or animal consumption, Algarovilla for animal consumption, Almonds [fruits], Aloe vera plants, Animal fattening preparations, Animal foodstuffs, Aromatic sand for pets [litter], Bagasses of cane [raw material], Barley, Beans, fresh, Beet, Berries and fresh fruits; retail services and online retail services connected with the sale of Beverages for pets, Bird food, Bran, Bran mash for animal consumption, Bred stock, Bulbs, Bushes, Cereal seeds, unprocessed, Chestnuts, fresh, Chicory roots, Chicory [salad], Christmas trees, Citrus fruit, Cocoa beans, raw, Coconut shell, Coconuts, Cola nuts, Copra, Crayfish, live, Crustaceans, live, Cucumbers, fresh, Cuttle bone for birds, Dog biscuits, Draff, Edible chews for animals and Eggs for hatching, fertilised; retail services and online retail services connected with the sale of Fish, live, Fish meal for animal consumption, Flax meal [fodder], Flowers, natural, Fodder, Fruit, fresh, Garden herbs, fresh, Grains [cereals], Grains for animal consumption, Grapes, fresh, Groats for poultry, Hay, Hazelnuts, Hop cones, Hops, Juniper berries, Leeks, fresh, Lemons, fresh, Lentils, fresh, Lettuce, fresh, Lime for animal forage and Linseed for animal consumption; retail services and online retail services connected with the sale of Linseed meal for animal consumption, Lobsters, live, Locust beans, Maize, Maize cake for cattle, Malt for brewing and distilling, Marc, Marrows, Mash for fattening livestock, Meal for animals, Menagerie animals, Mushroom spawn for propagation, Mushrooms, fresh, Mussels, live, Nettles, Nuts [fruits], Oats, Oil cake, Olives, fresh, Onions, fresh vegetables, Oranges, Oysters, live, Palm trees and Palms [leaves of the palm tree]; retail services and online retail services connected with the sale of Peanut cake for animals, Peanut meal for animals, Peanuts, fresh, Peas, fresh, Peppers [plants], Pet food, Pine cones, Plant seeds, Plants, Pollen [raw material], Potatoes, fresh, Poultry, live, Residual products of cereals for animal consumption, Rhubarb, Rice meal for forage, Rice, unprocessed, Roots for food, Rose bushes, Rough cork, Rye, Sea-cucumbers, live and Seed germ for botanical purposes; retail services and online retail services connected with the sale of Seedlings, Sesame, Shellfish, live, Spinach, fresh, Spiny lobsters, live, Sugarcane, Truffles, fresh, Vegetables, fresh, Vine plants, Wheat, Wheat germ for animal consumption, Wreaths of natural flowers, Yeast for animal consumption, Aerated water, Aloe vera drinks, non-alcoholic, Aperitifs, non-alcoholic, Beer, Beer wort, Cider, nonalcoholic, Cocktails, non-alcoholic, Essences for making beverages and Extracts of hops for making beer; retail services and online retail services connected with the sale of Fruit juice, Fruit nectars, non-alcoholic, Ginger ale, Grape must, unfermented, Isotonic beverages, Kvass [non-alcoholic beverage], Lemonades, Lithia water, Malt beer, Malt wort, Milk of almonds [beverage], Mineral water [beverages], Must, Non-alcoholic beverages, Non-alcoholic fruit extracts, Non-alcoholic fruit juice beverages, Non-alcoholic honey-based beverages, Orgeat and Pastilles for effervescing beverages; retail services and online retail services connected with the sale of Peanut milk [non-alcoholic beverage], Powders for effervescing beverages, Preparations for making aerated water, Preparations for making beverages, Preparations for making liqueurs, Preparations for making mineral water, Sarsaparilla [non-alcoholic beverage], Seltzer water, Smoothies, Soda water, Sorbets [beverages], Syrups for beverages, Syrups for lemonade, Table waters, Tomato juice [beverage] and Vegetable juices [beverages]; retail services and online retail services connected with the sale of Waters [beverages], Whey beverages, Alcoholic beverages (except beers), Alcoholic beverages containing fruit, Alcoholic beverages, except beer, Alcoholic essences, Alcoholic extracts, Anise [liqueur], Anisette [liqueur], Aperitifs, Arak [arrack], Bitters, Brandy, Cider, Cocktails, Curacao, Digesters [liqueurs and spirits], Distilled beverages, Fruit extracts, alcoholic and Gin; retail services and online retail services connected with the sale of Hydromel [mead], Kirsch, Liqueurs, Nira [sugarcane-based alcoholic beverage], Peppermint liqueurs, Perry, Piquette, Pre-mixed alcoholic beverages, other than beer-based, Rice alcohol, Rum, Sake, Spirits [beverages], Vodka, Whisky, Wine; management of a retail store and or supermarket; Retail store services in the field of fresh and prepared foods, pet products, pet food; information, advisory and consultancy services relating to the aforesaid.

Class 41 Education; providing of training; entertainment; cultural activities; conducting fitness classes; health club services; publication of books and text; tutoring; vocational guidance; vocational training; providing classes, seminars and workshops; providing television programs; educational and entertainment services, namely providing classes, seminars and workshops in the fields of food, nutrition, cooking, health, wellness, fitness, lifestyle, personal improvement, alternative health, wellness, parenting, the environment, agriculture, restaurants, cultural activities; television programs on the subject of food, nutrition, cooking, health, wellness, fitness, lifestyle, personal improvement, alternative health, wellness, parenting, the environment, agriculture, restaurants, cultural activities via global computer networks; providing information in the field of entertainment, cultural activities via a global computer network; providing educational and training information in the fields of wellness, fitness, lifestyle, personal improvement and parenting via global computer networks; providing online newsletters in the fields of food, nutrition, cooking, health, wellness, fitness, lifestyle, personal improvement, alternative health, wellness, parenting, the environment, agriculture, restaurants, cultural activities; providing a website featuring non-downloadable publications in the nature of articles and videos in the fields of food, nutrition, cooking, health, wellness, fitness, lifestyle, personal improvement, alternative health, wellness, parenting, the environment, agriculture, restaurants, cultural activities; motivational speaker services in the fields of food, nutrition, cooking, health, wellness, fitness, lifestyle, personal improvement, alternative health, wellness, parenting, the environment, agriculture, restaurants, cultural activities.

Class 42 Providing online non-downloadable software for placing orders for pick-up or delivery service, enabling users to make purchases via mobile device, and enabling users to make electronic payments for purchases; providing online non-downloadable software for locating grocery stores, meal planning, menu planning, generating shopping lists, devising personalized nutrition programs; providing online non-downloadable software to enable users to access and interact with information in the fields of food, recipes, meal planning, nutrition, cooking, health, wellness, grocery shopping; providing information in the fields of the environment via global computer networks.

Class 43 Services for providing food and drink; temporary accommodation; cafés; cafeterias; canteens; food and drink catering; rental of cooking apparatus; rental of drinking water dispensers; restaurants; self-service restaurants; snack-bars; temporary accommodation reservations; restaurant services; snack bar, coffee bar and coffee house, carry out restaurant, and take out restaurant services; catering services; preparation of carry out foods and beverages; providing information online in the fields of cooking, food preparation, wine, wine and food pairings, ingredients and recipes; providing online information in the fields of restaurants and local food and drink.

Class 44 Agriculture, horticulture and forestry services; horticulture; providing information in the fields of nutrition, health, alternative health and agriculture via global computer networks.

According to Article 66(2) EUTMR, you have a right to appeal against this decision which does not terminate the examination proceedings. 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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.

Once this decision has become final, the proceedings will be resumed for the examination of the subsidiary claim based upon Article 7(3) EUTMR and Article 2(2) EUTMIR.

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Octavio MONGE GONZALVO