VITA descriptive for kitchen goods (although only in Sweden?)

The EUIPO refused to register the trade mark "VITA" in classes 9, 11 and 21 for a range of kitchen items (the Application) on the basis that they considered "VITA" to be descriptive and non-distinctive.

Descriptiveness

The EUIPO considered the mark to be descriptive, as "vit" in Swedish means "white", and many kitchen appliances are available in this colour.

Furthermore, white in relation to kitchen items is also considered to be descriptive in English as they are commonly referred to as "white goods". However, as "vita" is a Swedish word, the EUIPO considered that it was necessary to take into account the Swedish-speaking public within the EU.

Lack of distinctive character

As "vita" means white, the EUIPO considered that the relevant public would consider it to be a simple statement that the goods concerned are available in the colour white.

Further, that as other manufacturers could also provide white kitchen goods, the mark was not capable of distinguishing the applicant's goods from those of other undertakings.

The Applicant appealed to the Board of Appeal, which was dismissed. They then appealed to the General Court.

The General Court held that the Examiner and Board of Appeal were correct to consider the relevant public to be Swedish-speaking, as the term comes from Swedish.

The Applicant argued that the mark applied for is "VITA" not "VIT" and, in fact, whilst "vit" does mean "white" in Swedish, it never appears on its own, but rather always with a noun placed after it.

In fact, "vita" has no obvious meaning in Swedish. However, this argument was rejected by the General Court as "vita" is the plural for "vit", and whilst "vit" is the more commonly used version, Swedish speakers would recognise "VITA" as meaning "white".

The Applicant also argued the mark is not descriptive, as some of the items are not typically available in the colour white. The General Court agreed with this, because the colour white did not constitute an intrinsic characteristic of the nature of the goods concerned.

Furthermore, the Applicant argued that "VITA" was not descriptive of "white goods". The Swedish for "white goods" is "vitvaror". The General Court agreed that the link between "VITA" and "vitvaror" was indirect and required some interpretation and thought on the part of the relevant public.

The General Court dismissed this ground of refusal.

With regards to the second ground of refusal, the Applicant argued that there are a large number of colour marks on the EUIPO register, which demonstrates that a colour can be perceived as an indication of origin.

The General Court held the most important question to ask is whether the mark is capable of guaranteeing to the consumer the origin of the goods and services covered by the mark enabling him/her, without any possibility of confusion, to distinguish those goods or services from others which have another origin.

As "VITA" is not descriptive of the goods applied for, it could not then be held to be non-distinctive purely based on its descriptiveness.

The General Court annulled the decision in its entirety.

Case ref: T-423/18