Earle Beauty v OHIM (NATURALLY ACTIVE) (Intellectual property) [2010] EUECJ T-307/09 (09 December 2010)

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(Community trade mark – Application for the Community word mark NATURALLY ACTIVE – Absolute ground for refusal – Lack of inherent distinctive character – Lack of distinctive character acquired by use − Article 7(1)(b) and (3) of Regulation (EC) No 207/2009 )

Liz Earle Beauty Co. Ltd, established in Ryde, Isle of Wight (United Kingdom), represented initially by M. Cover, and subsequently by K. O’Rourke, Solicitors,

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

1 On 20 December 2007, the applicant, Liz Earle Beauty Co. Ltd, filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

3 After the restriction made during the course of the proceedings before OHIM, the goods and services in respect of which registration was sought are in Classes 3, 5, 16, 18, 35 and 44 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

4 By decision of 4 November 2008, pursuant to Article 38 of Regulation No 40/94 (now Article 37 of Regulation No 207/2009), the examiner refused the application for registration as a Community trade mark in respect of all of the goods and services listed in the above paragraph, on the basis of Article 7(1)(b) in conjunction with Article 7(2) of Regulation No 40/94 (now, respectively, Article 7(1)(b) and Article 7(2) of Regulation No 207/2009), on the ground that the mark applied for was devoid of any inherent distinctive character. Furthermore, the examiner considered that proof of distinctive character acquired through use, pursuant to Article 7(3) of Regulation No 40/94 (now Article 7(3) of Regulation No 207/2009) had not been furnished.

5 On 23 December 2008, the applicant lodged an appeal against that decision at OHIM pursuant to Articles 58 to 64 of Regulation No 40/94 (now Articles 59 to 66 of Regulation No 207/2009).

6 By decision of 11 May 2009 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal.

7 The Board of Appeal essentially found that the word sign NATURALLY ACTIVE was a mere promotional indication of a laudatory nature. The fact that the mark applied for was not descriptive within the meaning of Article 7(1)(c) of Regulation No 207/2009 did not mean that that mark had distinctive character within the meaning of Article 7(1)(b) of that regulation. With regard to supposed distinctive character acquired through use, the Board of Appeal took the view that the applicant should have demonstrated that the word sign at issue had acquired such distinctiveness not only in the United Kingdom and in Ireland, but also in all the other Member States. However, the applicant furnished no such evidence. Consequently, the Board of Appeal found that the absolute ground for refusal set out in Article 7(1)(b) of Regulation No 207/2009 was applicable in the case and that it had not been established that the mark applied for had acquired, in accordance with Article 7(3) of that regulation, distinctive character in consequence of the use which had been made of it.

10 The applicant raises two pleas alleging, respectively, infringement of Article 7(1)(b) and Article 7(3) of Regulation No 207/2009.

11 OHIM submits that the applicant’s pleas are unfounded. It further submits that the first head of claim is inadmissible in so far as it seeks a declaration from the Court that the mark applied for should be published and registered. Finally, OHIM challenges the admissibility of certain Annexes.

12 In Annex A.5 to the application, the applicant submitted evidence on the readership and circulation of the magazines in which the awards made to its goods were announced. In Annex A.8, the applicant provided information on the company QVC from the website www.qvcuk.com. Those documents, produced for the first time before the General Court, cannot be taken into consideration. The purpose of actions before the General Court is to review the legality of decisions of the Boards of Appeal of OHIM for the purposes of Article 65 of Regulation No 207/2009, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, the abovementioned documents must be excluded, without it being necessary to assess their probative value (see, to that effect, Case T-346/04 Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE) [2005] ECR II-4891, paragraph 19 and the case-law cited).

13 By its first head of claim, the applicant requests the Court not only to annul the contested decision, but also to declare that the mark applied for should be published and registered. According to settled case-law, pursuant to Article 65(6) of Regulation No 207/2009, OHIM is required to take the measures necessary to comply with the judgments of the General Court. Accordingly, the General Court is not entitled to make such a declaration, which, in view of its content, would be tantamount in the present case, in essence, to issuing directions to OHIM. It is for OHIM to draw the appropriate inferences from the operative part of this judgment and the grounds on which it is based (see, to that effect, Case T-331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform) [2001] ECR II-433, paragraph 33, and Case T-34/00 Eurocool Logistik v OHIM (EUROCOOL) [2002] ECR II-683, paragraph 12).

14 Therefore, the first head of claim must be rejected as inadmissible in so far as it seeks a declaration from the Court that the mark applied for should be published and registered.

15 First, the applicant submits that the phrase ‘naturally active’ is an unusual combination of two English words and not one that is ordinarily used in the English language. In order to reach the conclusion contained in the contested decision that the goods concerned are ‘something which acts or works in a not artificial way’, further explanation is necessary for the consumer. The use of the term ‘naturally active’ is a result of the fact that the benefits of the goods derive from the natural ingredients used. The average user could not be expected to know that, in many beauty products, even when predominantly natural ingredients are used, artificial additives are often needed in order to extract the benefits from these natural ingredients. Consequently, the phrase ‘naturally active’ is not a promotional indication.

16 Second, the applicant states that the phrase ‘naturally active’ is unusual in the English language, because it is not a meaningful expression in itself and the consumer needs further explanation as to what it means and the context in which it is applied. The applicant argues that, this means that it is both striking and memorable to the consumer. The phrase is not in any way laudatory and does not encourage consumers to purchase the goods for any reason other than the fact that the phrase ‘naturally active’ is a recognised mark of the applicant’s goods.

17 Third, the applicant maintains that the phrase cannot be understood when it appears merely in the word sign NATURALLY ACTIVE. It is only through describing the context of the goods that the general public could have any understanding of the phrase. As a result, the phrase cannot be regarded as banal. The general public sees the word sign in question as an indication that the goods specifically originate from the applicant’s cosmetic and beauty business. According to the applicant, this can be demonstrated by the multitude of awards made to goods bearing the word sign NATURALLY ACTIVE by the newspapers and magazines listed in the Annex to the application.

18 OHIM challenges the applicant’s argument. It claims, in substance, that the mark applied for is devoid of any distinctive character, and that the phrase ‘naturally active’ is so general that this ground for refusal could apply to all the goods and services concerned.

19 According to Article 7(1)(b) of Regulation No 207/2009, ‘trade marks which are devoid of any distinctive character’ are not to be registered. Furthermore, Article 7(2) thereof provides that ‘[p]aragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the Community’.

20 According to the case-law, for a trade mark to possess distinctive character, for the purposes of Article 7(1)(b) of Regulation No 207/2009, it must serve to identify the product for which registration is applied for as originating from a particular undertaking, and thus to distinguish that product from those of other undertakings (Joined Cases C-456/01 P and C-457/01 P Henkel v OHIM [2004] ECR I-5089, paragraph 34 and the case-law cited).

21 Accordingly, the signs referred to in that article are signs which are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the origin of the goods, thus 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 (Case T-79/00 Rewe-Zentral v OHIM (LITE) [2002] ECR II-705, paragraph 26, and Case T-281/02 Norma Lebensmittelfilialbetrieb v OHIM(Mehr für Ihr Geld) [2004] ECR II-1915, paragraph 24). That is true, in particular, for signs which are commonly used in connection with the marketing of the goods or services concerned (Case T-320/03 Citicorp v OHIM (LIVE RICHLY) [2005] ECR II-3411, paragraph 65) or those which are capable of being used in that manner (Case T-216/02 Fieldturf v OHIM (LOOKS LIKE GRASS … FEELS LIKE GRASS … PLAYS LIKE GRASS) [2004] ECR II-1023, paragraph 34).

22 Distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been sought and, second, by reference to the perception of the relevant public, which consists of average consumers of those goods or services (LITE, paragraph 21 above, paragraph 27, and EUROCOOL, paragraph 13 above, paragraph 38), in particular because the way in which the public concerned perceives a trade mark is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (Case T-194/01 Unilever v OHIM (ovoid tablet) [2003] ECR II-383, paragraph 42).

23 It is in the light of those considerations that the legality of the contested decision must be determined.

24 As regards, first, the determination of the relevant public, the Board of Appeal stated, without being contradicted by the applicant on that point, that the goods and services covered by the mark applied for are intended for the average consumer, who is reasonably well informed, observant and circumspect, and that since the word sign NATURALLY ACTIVE consists of two English words, the relevant consumers should be taken to be European English-speakers.

25 On the other hand, in the context of its second plea the applicant does not accept that the public consisting of European English-speakers includes persons with only a very rudimentary knowledge of English. Accordingly, it contests, by implication, the Board of Appeal’s assertion, in paragraph 33 of the contested decision, that that ground for refusal applies ‘in all the [other countries] where basic English words may be understood, these include all the countries of the European Union’.

26 It is not necessary for the General Court to determine, in the context of the first plea, the exact meaning of ‘European English-speakers’; it need merely be pointed out that the number of countries where basic English can be understood is greater than the number of countries where English is the native language. The Court has already confirmed that a basic understanding of the English language by the general public, in any event, in the Scandinavian countries, the Netherlands and Finland, is a well-known fact (judgment of 26 November 2008 in Case T-435/07 New Look v OHIM (NEW LOOK), not published in the ECR, paragraph 23). The same applies to Malta, where English is one of the official languages, and to Cyprus. Consequently, the relevant public includes, at the very least, the consumers of those countries.

27 The case-law shows, moreover, that a word sign consisting of words in the English language, the combination of which is grammatically correct, may have a meaning not only for the English-speaking public, but also for a public which has sufficient knowledge of the English language (LIVE RICHLY, paragraph 21 above, paragraph 76, and judgment of 12 March 2008 in Case T-128/07 Suez v OHIM (Delivering the essentials of life), not published in the ECR, paragraph 22).

28 It follows that the Board of Appeal did not err in including in the relevant public consumers in other countries other than those where English is the native language, and in particular consumers in countries where a knowledge of basic English is a matter of common knowledge.

29 As regards the meaning of the mark applied for, the Board of Appeal found, in paragraph 20 of the contested decision, that the mark, NATURALLY ACTIVE, consisted of English words which means ‘something which acts or works in a not artificial way’, and that, therefore, the mark conceptually represented a promotional indication, indicating to the consumer a desirable feature of the goods and services concerned.

30 In that regard, it should be noted that the trade mark applied for consists of two ordinary words which have a specific meaning. The adverb ‘naturally’ means ‘in a natural or normal manner’ and the adjective ‘active’ means ‘something which acts or causes a reaction’. Furthermore, the syntax of the word sign at issue is grammatically correct.

31 The applicant submits that the phrase ‘naturally active’ is an unusual combination of words, that it is not a meaningful expression in itself and that more detailed explanation is necessary if the consumer is to understand that the beneficial effect of the goods derives from natural ingredients or ingredients of plant origin. That assertion must be rejected. As the Board of Appeal rightly considered, the meaning of the word sign at issue is clear for all the goods and services consisting of cosmetics and beauty care.

32 The adverb ‘naturally’ will be understood as referring to natural ingredients. The documentary evidence provided by the applicant demonstrates that references to nature and natural substances are common in cosmetics. For example, the health magazine Natural Health presents awards called ‘Natural Health Beauty’. Similarly, the Beauty Awards 2007 presented by Harper’s magazine includes a specific category for ‘natural/organic’ cosmetic products. The adjective ‘active’ indicates that the skincare goods and services have an effect. Consequently, the combination of those two ordinary English words gives a clear meaning to the phrase ‘naturally active’. In the context of cosmetic goods and services, that phrase conveys the idea that they enable a result to be achieved that is generated by natural substances.

33 Contrary to the applicant’s assertion, the combination of words in the word sign NATURALLY ACTIVE will not therefore be perceived as unusual by consumers, but as a phrase having the meaning indicated by the Board of Appeal in paragraph 20 of the contested decision. The word sign at issue contains nothing that is memorable in terms of a play on words, a rhyme, a subliminal message or unusual syntax. Contrary to the applicant’s assertion, disputing the obvious literal meaning of the mark applied for, it merely contains information intended to encourage consumers to purchase the goods and services concerned.

34 That message is clear and will be understood by the relevant public without any particular mental exertion. The Court notes – as the Board of Appeal did – that the mark applied for is banal, as it is a mere promotional indication, the message of which is so general that it is applicable to all goods and services relating to cosmetics and beauty care. Generic laudatory terms may not be reserved for a single undertaking, since it is in the public interest not to unduly restrict their availability for competitors offering the same kind of goods or services as those in respect of which registration is sought (see, to that effect, Case T-242/02 Sunrider v OHIM (TOP) [2005] ECR II-2793, paragraphs 95 and 96).

35 Finally, that meaning of the word sign covered by the mark applied for is also confirmed by the manner in which the applicant uses it on its own goods, in phrases such as ‘naturally active ingredients’, ‘naturally active skincare’ or ‘naturally active bodycare’, which appear on inter alia some of the goods which received the awards mentioned by the applicant (see, for example, the representation of the applicant’s cosmetic products on pages 38, 39 and 43 of the Annex to the application, where such indications appear on the goods). In so far as the applicant itself often uses the words ‘naturally active’ in combination with a noun such as ‘ingredients’ or ‘skincare’, it is clear that the relevant public will perceive the semantic content of the word sign as an indication to the consumer of a characteristic of the goods and not as an indication of the commercial origin of the goods. The number of awards made to goods incorporating the word sign NATURALLY ACTIVE by English newspapers and magazines is, moreover, irrelevant to the question whether the trade mark applied for is distinctive.

36 Consequently, as regards the goods and services in Classes 3, 5, 35 and 44, the Board of Appeal was right to refuse the registration of the mark applied for on the basis of Article 7(1)(b) of Regulation No 207/2009.

37 The above considerations are not directly transposable to the goods in Classes 16 and 18, which do not contain or use any active ingredient. However, in the case of ‘printed matter, namely brochures, cards and vouchers; books and publications’, in Class 16, these must be regarded as covering, in particular, printed matter, books and other publications designed to ensure the promotion of cosmetic products and that, consequently, the phrase ‘naturally active’ will be understood as referring to a characteristic of cosmetic products which are often mentioned and represented therein. Such reasoning as regards ‘publications on such matters’ is set out in paragraph 25 of the contested decision. Therefore, the Board of Appeal was right to refuse registration of the mark applied for in respect of the goods in Class 16.

38 On the other hand, as regards the goods in Class 18, namely ‘wash bags, cosmetic bags and cases, beach bags, handbags, shoulder bags, draw string bags, purses, wallets, vanity cases, make-up bags, canvas bags, cases for mirrors’, it must be pointed out that the contested decision contains no reasoning to explain why the word sign at issue lacks distinctive character with respect to those goods as well. In particular, the mere assertion, in paragraph 25 of the contested decision, that ‘[s]uch a general promotional indication cannot constitute an indication of a given business origin and therefore the mark cannot be accepted for any of the goods and services applied for’ is too general and does not comply with the rule, set out in paragraph 22 above, that distinctive character must be assessed ‘by reference to the goods or services in respect of which registration has been sought’.

39 In that regard, the Court of Justice has stated, first, that the examination of the absolute grounds for refusal must be carried out in relation to each of the goods and services for which trade mark registration is sought and, second, that the decision by which OHIM refuses the registration of a mark must, in principle, state reasons in respect of each of those goods or services (see, order of 18 March 2010 in Case C-282/09 P CFCMCEE v OHIM [2010] ECR I-0000, paragraph 37 and the case-law cited).

40 It is true that, where the same ground for refusal is given for a category or group of goods or services, OHIM may use only general reasoning for all of the goods or services concerned (see, by analogy, Case C-239/05 BVBA Management, Training en Consultancy [2007] ECR I-1455, paragraph 37). However, that option cannot in particular undermine the essential requirement that any decision refusing the benefit of a right conferred by European Union law must be subject to judicial review which is designed to secure effective protection for that right and which, accordingly, must cover the legality of the reasons for the refusal. In particular, the Court of Justice has held that, even in the case where the goods and services concerned are in the same class under the Nice Agreement, that fact is not in itself sufficient to warrant the conclusion that there is sufficient homogeneity, since those classes often contain a wide range of goods and services between which there is not necessarily such a sufficiently direct and specific link (see CFCMCEE v OHIM, paragraph 39 above, paragraphs 39 and 40 and the case-law cited).

41 In the present case, the contested decision fails to meet those requirements, since no distinction was made between the categories of homogeneous goods covered by the application for registration. The Board of Appeal should at least have drawn a distinction between, on the one hand, goods and services which are directly related to cosmetics and, on the other hand, the goods in Class 18.

42 In its response and in its reply to a written question put by the Court concerning the reasoning on which the contested decision was based, OHIM also contends that, as regards goods in Class 18, the trade mark applied for, NATURALLY ACTIVE, will be understood either as a reference to the quality of the cosmetic products or as a message relating to the users thereof, and that the word sign at issue conveys the message that those goods are intended for ‘“naturally” or genuinely active people’. In the case of goods such as wash bags and cosmetic cases, it is not at all clear that the relevant public will perceive the phrase ‘naturally active’ to that effect. In particular, the goods in Class 18, especially, purses, wallets and cases for mirrors, can be used for things other than cosmetics. Furthermore, OHIM’s explanation would imply that only in respect of goods in Class 18 is reference made to those for whom the goods are intended and not to the goods themselves. In any event, the contested decision does not contain sufficient reasoning in this regard.

43 On this point, it should be recalled that a failure to state reasons involves a matter of public policy, so that the General Court must assess whether the Board of Appeal examined and provided an adequate statement of reasons in relation to the lack of distinctive character of the sign at issue by reference to the goods or services in respect of which registration of the sign as a Community trade mark was refused (Joined Cases T-405/07 and T-406/07 CFCMCEE v OHIM (P@YWEB CARD and PAYWEBCARD [2009] ECR II-1441, paragraph 56, upheld on appeal by order of the Court of Justice in CFCMCEE v OHIM, paragraph 39 above, paragraph 41).

44 It follows from all the foregoing that the contested decision must be annulled in so far as registration of the word sign NATURALLY ACTIVE as a Community trade mark was refused in respect of the goods concerned in Class 18.

45 The applicant accepts that, according to the case-law, the distinctiveness acquired through use must be shown in all the Member States in which the existence of the ground for refusal had been established. Accordingly, the relevant consumers are European English-speakers, as stated in paragraph 18 of the contested decision. The Board of Appeal did not, however, provide any evidence to justify its assertion that the ground for refusal applied in all the Member States. The applicant maintains that European English-speakers cannot include people with only a very rudimentary knowledge of English.

46 As regards proof of distinctiveness acquired through use, the applicant maintains that the letters from the company QVC, the women’s magazine She and the company Atelier are the objective opinions of large companies, which show that the latter consider the word sign NATURALLY ACTIVE to be linked to a trade mark of the applicant. Finally, the statement by Mr S.T., who works for the applicant, was not a personal opinion, but rather the submission of factual evidence regarding the company and its activities, particularly with regard to long-standing use of the word sign NATURALLY ACTIVE, geographical intensity and the amount invested in promoting the mark.

47 OHIM contends that the applicant’s arguments are unfounded and maintains that proof of distinctive character acquired through use has not been furnished.

48 Article 7(3) of Regulation No 207/2009 provides that ‘[p]aragraph 1 [(b) to (d)] shall not apply if the trade mark has become distinctive in relation to the goods or services for which registration is requested in consequence of the use which has been made of it.’

49 It is clear from the case-law that, in order to have the registration of a trade mark accepted under Article 7(3) of Regulation No 207/2009, the distinctive character acquired through the use of that trade mark must be demonstrated in the substantial part of the European Union where it was devoid of any such character under Article 7(1)(b) of the Regulation (Case T-91/99 Ford Motor v OHIM (OPTIONS) [2000] ECR II-1925, paragraph 27). The part of the Community referred to in Article 7(2) may be comprised of a single Member State (Case C-25/05 P Storck v OHIM [2006] ECR I-5719, paragraph 83). Consequently, distinctiveness acquired through use must be demonstrated in all the Member States in which the existence of the ground for refusal had been established (see, to that effect, Case C-108/05 Bovemij Verzekeringen [2006] ECR I-7605, paragraph 28).

50 In the present case, the Board of Appeal found, in paragraph 18 of the contested decision, that the relevant consumers were European English-speakers. Next, it considers, in paragraph 33 of the contested decision, that the applicant ought to have demonstrated that the word sign at issue had acquired distinctiveness not only in the English-speaking countries of the European Union, but also in all the other countries where basic English words could be understood, that it is to say in all the countries of the European Union.

51 The applicant challenges only that last assertion and claims that the public consisting of European English-speakers cannot include persons with a very rudimentary knowledge of English.

52 Even if the Board of Appeal construed the concept of ‘European English-speakers’ too broadly, it is clear, and the applicant has, moreover, never claimed the contrary, that the relevant public does not only consist of nationals of the United Kingdom and Ireland whose mother tongue is English.

53 It is settled case-law that a word sign consisting of English words the combination of which is grammatically correct may have a meaning not only for a public who are native English speakers, but also for a public which has sufficient knowledge of the English language (see NEW LOOK, paragraph 26 above, paragraph 20 and the case-law cited). As noted in paragraph 26 above, the General Court has previously confirmed that a basic understanding of the English language by the general public, in any event, in the Scandinavian countries, the Netherlands and Finland is a well-known fact (NEW LOOK, paragraph 26 above, paragraph 23). As pointed out in the same paragraph, this also applies to Malta, where English is one of the official languages, and to Cyprus.

54 With regard to all of those countries, the applicant never furnished the slightest proof that the mark applied for had become distinctive through use. In particular, the letters and statements mentioned in paragraph 46 above, and the evidence of use submitted to OHIM concern only the United Kingdom, Ireland and Germany.

56 In light of the conclusion reached in paragraph 44 above, the contested decision must be partially annulled and the remainder of the action must be dismissed.

57 Under Article 87(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared. In the present case, since the applicant’s action has been upheld only in respect of some of the goods and services concerned, the applicant must bear its own costs and pay two thirds of OHIM’s costs, and OHIM must bear one third of its costs.

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 May 2009 (Case R 27/2009-2) in so far as it refused registration as a Community trade mark of the word sign NATURALLY ACTIVE for wash bags, cosmetic bags and cases, beach bags, handbags, shoulder bags, draw string bags, purses, wallets, vanity cases, make-up bags, canvas bags, cases for mirrors in Class 18 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

3. Orders Liz Earle Beauty Co. Ltd to bear its own costs and to pay two thirds of OHIM’s costs. OHIM is ordered to bear one third of its costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Earle Beauty v OHIM (NATURALLY ACTIVE) (Intellectual property) [2010] EUECJ T-307/09 (09 December 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/T30709.html Cite as: EU:T:2010:509, [2010] EUECJ T-307/09, ECLI:EU:T:2010:509, [2010] EUECJ T-307/9, [2011] ETMR 16

Court of Justice of the European Communities (including Court of First Instance Decisions)