Judgment of the General Court (Ninth Chamber) 16 September 2026

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

16 September 2026 ( * )

( EU trade mark – Invalidity proceedings – EU word mark FITNESS – Absolute grounds for invalidity – Descriptive character – Article 7(1)(c) and Article 51(1)(a) of Regulation (EC) No 40/94 – Evidence submitted for the first time before the Board of Appeal – Article 76(2) of Regulation (EC) No 207/2009 )

In Case T‑509/25,

Société des produits Nestlé SA, established in Vevey (Switzerland), represented by A. Lambrecht, C. Elkemann and J. Thomsen, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

European Food SA, established in Păntășești (Romania), represented by I. Speciac, lawyer,

THE GENERAL COURT (Ninth Chamber),

composed of S. Kingston, President, P. Zilgalvis (Rapporteur) and J. Hettne, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1 By its action under Article 263 TFEU, the applicant, Société des produits Nestlé SA, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 May 2025 (Case R 894/2020-5) (‘the contested decision’).

I. Background to the dispute

2 On 2 September 2011, the intervener, European Food SA, filed an application with EUIPO for a declaration of invalidity of the EU trade mark registered on 30 May 2005 under number 2470326 following an application filed on 20 November 2001 for the word sign FITNESS.

3 The goods covered by the contested mark in respect of which the declaration of invalidity was sought were in Classes 29, 30 and 32 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, corresponding, for each of those classes, to the following description:

– Class 29: ‘Milk, cream, butter, cheese, yoghurts and other milk-based food preparations, substitutes for dairy products, eggs, jellies, fruit, vegetables, protein preparations for human consumption’;

– Class 30: ‘Cereals and cereal preparations; ready-to-eat cereals; breakfast cereals; foodstuffs based on rice or flour’;

– Class 32: ‘Still water, aerated or carbonated water, spring water, mineral water, flavoured water, fruit drinks, fruit juices, nectars, lemonades, sodas and other non-alcoholic drinks, syrups and other preparations for making syrups and other preparations for making beverages’.

4 The grounds relied on in support of the application for a declaration of invalidity were those set out in Article 52(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)), read in conjunction with Article 7(1)(b) and (c) of that regulation.

5 On 18 October 2013, the Cancellation Division dismissed the application for a declaration of invalidity.

6 On 16 December 2013, the intervener filed a notice of appeal with EUIPO against the decision of the Cancellation Division. During the appeal proceedings, in support of its argument that the term ‘fitness’ was descriptive of the goods at issue, it submitted the following evidence (‘the evidence submitted before the Fourth Board of Appeal’):

– Exhibit 1: extracts from websites concerning the book by Wilkins, F.E., DIETMINDER Personal Food & Fitness Journal – A Food and Exercise Diary , MemoryMinder Journals, 2000;

– Exhibit 2: an extract from a website concerning the book by Kent, M., Food and Fitness: A Dictionary of Diet and Exercise , Oxford University Press, 1997, published online in 2003;

– Exhibit 3: an extract from a website concerning the book by Carmichael, C., et al., Chris Carmichael’s Food for Fitness , 2005;

– Exhibit 4: extracts from websites concerning the book by Bean, A., Food for Fitness , 2nd edition, 2002;

– Exhibit 5: an extract from a website concerning the book by Sheehan, T., Fitness Food Cookbook and inspirational Nutrition Guide , 2005;

– Exhibits 6 and 7: extracts from the website ‘fitnessista.com’, containing publications dating from August 2010;

– Exhibit 8: extracts from a blog dating from 2005 on diet and weight loss;

– Exhibit 9: an extract from an internet forum about ‘fitness’ recipes;

– Exhibits 10, 11 and 12: references to websites about healthy nutrition dating from the period between 2001 and 2005;

– Exhibit 13: an extract from a Welsh Government website on promoting healthy eating and physical activity;

– Exhibits 14 and 17: extracts from issues of the magazine Men’s Fitness dating from 1996 to 2002;

– Exhibits 15, 16 and 18 to 22: various references to websites on diets and calories.

7 By decision of 19 June 2015 in Case R 2542/2013-4, the Fourth Board of Appeal of EUIPO dismissed the appeal. In particular, it rejected the evidence submitted for the first time before it as having been submitted late, without taking that evidence into consideration.

8 By application lodged at the Registry of the General Court on 19 August 2015, the intervener brought an action against the decision of the Fourth Board of Appeal of 19 June 2015.

9 By judgment of 28 September 2016, European Food v EUIPO – Société des produits Nestlé (FITNESS) (T‑476/15, EU:T:2016:568), the General Court annulled the decision of the Fourth Board of Appeal of 19 June 2015. It held that that Board of Appeal had erred in law in finding that the evidence submitted by the intervener for the first time at the appeal stage was not to be taken into consideration because that evidence had been submitted late.

10 EUIPO brought an appeal against the judgment of 28 September 2016, FITNESS (T‑476/15, EU:T:2016:568). By judgment of 24 January 2018, EUIPO v European Food (C‑634/16 P, ‘the judgment on appeal’, EU:C:2018:30), the Court of Justice dismissed the appeal.

11 By decision of 6 June 2018 in Case R 755/2018-2, the Second Board of Appeal annulled the Cancellation Division’s decision referred to in paragraph 5 above. In particular, it found that it followed from the judgment of 28 September 2016, FITNESS (T‑476/15, EU:T:2016:568) and from the judgment on appeal, that it was obliged to examine the appeal lodged before it taking into account the evidence submitted before the Fourth Board of Appeal. Taking account of that evidence, the Second Board of Appeal found that the contested mark was descriptive and devoid of any distinctive character.

12 By application lodged at the Registry of the General Court on 11 September 2018, the applicant brought an action against the decision of the Second Board of Appeal of 6 June 2018.

13 By judgment of 10 October 2019, Société des produits Nestlé v EUIPO – European Food (FITNESS) (T‑536/18, not published, EU:T:2019:737), the General Court annulled the decision of the Second Board of Appeal of 6 June 2018. In particular, it held that that Board of Appeal had incorrectly found that it followed from the judgment of 28 September 2016, FITNESS (T‑476/15, EU:T:2016:568) and from the judgment on appeal, that it was required to take into account the evidence submitted before the Fourth Board of Appeal.

14 The intervener brought an appeal against the judgment of 10 October 2019, FITNESS (T‑536/18, not published, EU:T:2019:737). By order of 18 March 2020, European Food v EUIPO (C‑908/19 P, not published, EU:C:2020:212), the Court of Justice did not allow the appeal to proceed.

15 By decision of 12 October 2021 in Case R 894/2020-1 (‘the decision of 12 October 2021’), the First Board of Appeal dismissed the appeal against the decision of the Cancellation Division referred to in paragraph 5 above. As regards the evidence submitted before the Fourth Board of Appeal, it found that the intervener had not adequately justified the late submission of that evidence and that, consequently, it was obliged to exercise its discretion negatively and not accept it.

16 By application lodged at the Registry of the General Court on 24 December 2021, the intervener brought an action against the decision of the First Board of Appeal of 12 October 2021.

17 By decision of 27 June 2022, the First Board of Appeal revoked its decision of 12 October 2021.

18 By application lodged at the Registry of the General Court on 29 August 2022, the applicant brought an action against the revocation decision of 27 June 2022.

19 By judgment of 7 June 2023, Société des produits Nestlé v EUIPO – European Food (FITNESS) (T‑519/22, EU:T:2023:314), the Court annulled the revocation decision of 27 June 2022, holding, in essence, that none of the errors identified by the Board of Appeal in that decision could constitute an obvious error within the meaning of Article 103(1) of Regulation 2017/1001 relating to the revocation of EUIPO decisions.

20 By judgment of 27 November 2024, European Food v EUIPO – Société des produits Nestlé (FITNESS) (T‑799/21, not published, ‘the 2024 annulment judgment’, EU:T:2024:865), the Court annulled the decision of 12 October 2021. In essence, it held that the Board of Appeal had not put forward valid reasons for disregarding the evidence submitted before the Fourth Board of Appeal. In particular, the Court held that the only ground put forward by the First Board of Appeal for finding that the intervener had not submitted a ‘new factor’ justifying the submission of additional evidence was vitiated by an error of law.

21 By the contested decision, the Fifth Board of Appeal upheld the appeal brought by the intervener, first, annulling the Cancellation Division’s decision and, second, declaring the contested mark invalid in its entirety. In essence, first, it accepted the evidence submitted before the Fourth Board of Appeal and, second, it found that the contested mark had been registered in breach of Article 7(1)(c) of Regulation No 207/2009. According to the Fifth Board of Appeal, the intervener had sufficiently demonstrated that there was a direct relationship between the meaning of the contested mark and the goods at issue, that, at the relevant date of filing of the application for registration of the contested mark, it was very likely that that sign would be used in the near future as an indication to describe the intrinsic qualities or intended purpose of those goods and that that descriptive use of the term ‘fitness’ in connection with general foodstuffs had indeed occurred in the years following the filing of the contested mark.

II. Forms of order sought

22 The applicant claims that the Court should:

– annul the contested decision;

– order EUIPO and the intervener to pay the costs.

23 EUIPO contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened.

24 The intervener contends, in essence, that the Court should dismiss the action.

III. Law

A. The applicable law ratione temporis

25 The applicant claims that, in order to assess the admissibility of the evidence submitted out of time, the Fifth Board of Appeal referred to Article 76(2) of Regulation No 207/2009, whereas it is apparent from settled case-law that, for the purposes of identifying the applicable procedural law, account should be taken of the date on which the contested decision was adopted. Thus, the applicant refers to Article 95(2) of Regulation 2017/1001.

26 Given the date on which the application for registration at issue was filed, namely 20 November 2001, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (see, to that effect, order of 5 October 2004, Alcon v OHIM , C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO , C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

27 Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain , C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001 and Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1).

28 However, in the present case, as regards the admissibility of the evidence submitted before the Fourth Board of Appeal, that question should be assessed in the light of the procedural provisions applicable to actions brought before 1 October 2017, in accordance with Article 82(2)(j) of Delegated Regulation 2018/625. In accordance with the latter provision, Title V of Delegated Regulation 2018/625, which includes Article 27(4) relating to evidence submitted for the first time before the Board of Appeal, does not apply to appeals brought before 1 October 2017. Accordingly, in the present case, it is the provisions of Regulation No 207/2009 and Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) which are applicable to the evidence submitted before the Fourth Board of Appeal.

29 It follows that, as regards the procedural provisions applicable to the evidence submitted before the Fourth Board of Appeal, the references made by the applicant and the intervener to Article 95(2) of Regulation 2017/1001 must be understood as referring to Article 76(2) of Regulation No 207/2009, which is identical in content (see, to that effect, the 2024 annulment judgment, paragraphs 25 and 27).

B. Substance

30 In support of its action, the applicant relies on two pleas in law, alleging, first, infringement of Article 76(2) of Regulation No 207/2009 and, second, infringement of Article 51(1)(a) of Regulation No 40/94, read in conjunction with Article 7(1)(c) of that regulation.

1. The first plea in law, alleging infringement of Article 76 (2) of Regulation No 2 07/2009

31 By its first plea, the applicant submits, in essence, that the Fifth Board of Appeal did not exercise its discretion under Article 76(2) of Regulation No 207/2009 in an objective and reasoned manner. It relies, in that regard, on four complaints, alleging, first, an error concerning the interpretation of the judgment on appeal, second, the irrelevance of the evidence submitted before the Fourth Board of Appeal, third, that that evidence was not supplementary and, fourth, the lack of sufficient justification for the late submission of that evidence.

32 EUIPO and the intervener dispute the applicant’s arguments.

(a) Preliminary observations

33 Under Article 76(2) of Regulation No 207/2009, EUIPO ‘may disregard facts or evidence which are not submitted in due time by the parties concerned’.

34 It follows from the wording of that provision that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time limits to which such submission is subject under the provisions of Regulation No 207/2009 and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted or produced out of time (see judgment of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions , C‑610/11 P, EU:C:2013:593, paragraph 77 and the case-law cited).

35 However, it is equally apparent from that wording that a party has no unconditional right to have facts and evidence submitted out of time taken into consideration by EUIPO. In stating that EUIPO ‘may’ decide to disregard facts and evidence, that provision grants it a wide discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account (see, to that effect, judgment of 13 March 2007, OHIM v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 43).

36 Thus, where EUIPO is called upon to give judgment in the context of invalidity proceedings, taking facts or evidence into account which have been produced out of time is particularly likely to be justified where EUIPO considers, first, that the material which has been produced late is, on the face of it, likely to be relevant to the outcome of the application for a declaration of invalidity brought before it and, second, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not argue against such matters being taken into account (see judgment of 28 February 2018, mobile.de v EUIPO , C‑418/16 P, EU:C:2018:128, paragraph 63 and the case-law cited).

37 Therefore, any taking into account by EUIPO of that additional evidence is in no way a ‘favour’ granted to one party or the other, but rather must result from an objective, reasoned exercise of the discretion conferred on EUIPO by Article 76(2) (see, to that effect, judgment of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions , C‑610/11 P, EU:C:2013:593, paragraph 111).

38 Thus, the case-law balances the possibility for the parties to submit additional or new evidence, the legal certainty of the proprietors of EU trade marks and the discretion of EUIPO, and in particular of the Boards of Appeal, as to the admissibility of such evidence (the 2024 annulment judgment, paragraph 60).

39 As regards the present case, the Court of Justice has already stated, in paragraph 42 of the judgment on appeal, that it is always possible to submit evidence in due time for the first time before the Board of Appeal in so far as that evidence is intended to challenge the grounds relied on by the Cancellation Division in the contested decision. That evidence is, therefore, either evidence supplementary to that submitted in the proceedings before the Cancellation Division or evidence concerning a new matter which could not be raised during those proceedings. It added, in paragraph 43 of that judgment, that, in the context of the application of Regulation No 207/2009, it is for the party submitting the evidence for the first time before the Board of Appeal to provide reasons why that evidence is being submitted at that stage of the proceedings and to demonstrate that such submission was impossible during the proceedings before the Cancellation Division (the 2024 annulment judgment, paragraph 61).

40 The present plea in law must be examined in the light of those considerations.

(b) The first complaint, alleging misinterpretation of the judgment on appeal

41 The applicant submits that the finding of the Fifth Board of Appeal, in paragraph 100 of the contested decision, that it was appropriate to use its broad discretion ‘in favour of accepting the belated evidence’ is inconsistent with the judgment on appeal, from which it is apparent that the taking into account of evidence submitted out of time was not in any way a ‘favour’ granted to either party, but had to reflect the result of an objective and reasoned exercise of its discretion. In any event, the Fifth Board of Appeal did not exercise its discretion in an objective and reasoned manner. It erred in law at each of the stages of its assessment.

42 EUIPO and the intervener dispute the applicant’s arguments.

43 In the present case, it must be held, as EUIPO and the intervener have argued, that the applicant’s line of argument stems from a misreading of the contested decision. Admittedly, it is true that, in paragraph 100 of the contested decision, the Fifth Board of Appeal stated that, in the light of the reasoning and explanations provided by the intervener and having regard to the facts and findings set out earlier in that decision, it had exercised its broad discretion ‘in favour of accepting the belated evidence filed by [the intervener] at appeal stage’. However, it should be noted that that is a conclusion which that Board of Appeal drew from its assessment of all the relevant factors and the exercise of its broad discretion, and not a ‘favour’ within the meaning of the case-law cited in paragraph 37 above, contrary to the applicant’s arguments. The use of the expression ‘in favour’ means in this case solely that the Fifth Board of Appeal decided, after examining all the relevant circumstances of the case, to accept the evidence submitted before the Fourth Board of Appeal. Accordingly, the applicant’s argument must be rejected as unfounded.

(c) The second complaint, alleging that the evidence submitted before the Fourth Board of Appeal is irrelevant

44 First, the applicant claims that the Fifth Board of Appeal carried out an insufficient and incorrect assessment of the criterion relating to the relevance of the evidence submitted out of time. In order to find that that evidence had to be regarded as relevant, it referred to paragraphs 53 and 83 of the 2024 annulment judgment instead of carrying out its own assessment and complying with its obligation to state reasons. According to the applicant, the reference to that judgment cannot replace an independent and reasoned assessment. Moreover, in the paragraphs cited by the Fifth Board of Appeal, the Court merely summarised the paragraphs of the decision annulled by the judgment in question. By referring to the assessments contained in a decision retroactively removed from the EU legal order, the Fifth Board of Appeal erred in law.

45 Second, the applicant submits that the intervener has not proved that the evidence submitted out of time was, prima facie, likely to be relevant to the outcome of the appeal. The intervener acknowledged that the evidence submitted out of time had been gathered in order to prove that the alleged link between healthy nutrition and fitness already existed at the time of registration of the contested mark. The only relevant date is the date on which the application for registration of the contested mark was filed, with the result that the evidence submitted out of time relates to an irrelevant period.

46 Third, the applicant submits that it demonstrated, point by point, before the Fourth Board of Appeal that the content of the evidence submitted out of time was also not relevant to the outcome of the proceedings and cannot support the intervener’s claims. In that regard, it refers to the observations made before that Board of Appeal.

47 EUIPO and the intervener dispute the applicant’s arguments.

48 In the present case, it must be noted that, in paragraphs 51 to 53 of the contested decision, the Fifth Board of Appeal examined the question of the relevance of the evidence submitted before the Fourth Board of Appeal and concluded, inter alia, in paragraph 53 of that decision that that evidence was capable of affecting the outcome of the appeal. In particular, in paragraph 52 of the contested decision, it referred to paragraphs 139 to 166 of that decision, which contain a detailed assessment of that evidence and from which it is apparent that it related to the perception, understanding and use of the term ‘fitness’ at the date of filing of the application for registration of the contested mark, and to the close link between foodstuffs and physical fitness, understood as being in good health. Similarly, in paragraph 102 of the contested decision, the Fifth Board of Appeal found that the evidence submitted before the Fourth Board of Appeal strengthened and clarified the evidence initially submitted before the Cancellation Division and was therefore relevant to the outcome of the appeal.

49 First, as regards the applicant’s claim that the Fifth Board of Appeal did not carry out an independent and reasoned assessment in concluding that the evidence submitted before the Fourth Board of Appeal was relevant, the following should be noted. Admittedly, as the applicant claims, in paragraph 51 of the contested decision, the Fifth Board of Appeal merely cited paragraphs 53 and 83 of the 2024 annulment judgment and, in paragraph 52 of that decision, it stated that the evidence submitted before the Fourth Board of Appeal would be analysed in detail in paragraphs 139 to 166 of that decision. However, in paragraph 102 of that decision, as stated in paragraph 48 above, it found that the evidence submitted before the Fourth Board of Appeal was relevant to the outcome of the appeal in so far as it strengthened and clarified the initial evidence. Consequently, the applicant is not justified in criticising the Fifth Board of Appeal for not having carried out its own assessment. Similarly, it should be noted that paragraph 102 and paragraphs 139 to 166 of the contested decision enable the applicant to ascertain the reasons which led to the adoption of that decision and the Court to exercise its power of review, with the result that the complaint alleging a failure to state reasons is also unfounded.

50 Second, as regards the argument that the evidence submitted before the Fourth Board of Appeal was not, prima facie, relevant, or that the intervener had not demonstrated that relevance, it is not such as to call into question the finding of the Fifth Board of Appeal that that evidence strengthened and clarified the evidence initially submitted before the Cancellation Division and was therefore relevant to the outcome of the appeal, for the reasons set out in paragraphs 139 to 166 of the contested decision (see paragraph 48 above).

51 In that regard, it must be borne in mind, as observed by EUIPO, that, in accordance with the case-law cited in paragraph 35 above, the Board of Appeal enjoys a broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take into account evidence submitted out of time. It is also apparent from the case-law that the exercise by the Board of Appeal of a broad discretion does not have the effect of removing that assessment from review by the Courts of the European Union, but of restricting that review as to the substance to ascertaining that there has been no manifest error of assessment or misuse of powers (see, to that effect and by analogy, judgment of 4 May 2017, Kasztantowicz v EUIPO – Gbb Group (GEOTEK) , T‑97/16, not published, EU:T:2017:298, paragraph 58 and the case-law cited). The applicant, by merely claiming that the prima facie relevance of the evidence submitted before the Fourth Board of Appeal has not been established, has not demonstrated the existence of such a manifest error or misuse of powers.

52 Third, in so far as the applicant refers, in general terms, to its observations made before the Fourth Board of Appeal, it must be borne in mind that, although the text of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents cannot make up for the absence of the essential arguments in law which must appear in the application (see judgment of 19 October 2006, Bitburger Brauerei v OHIM – Anheuser-Busch (BUD, American Bud and Anheuser-Busch Bud) , T‑350/04 to T‑352/04, EU:T:2006:330, paragraph 33 and the case-law cited; see also, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission , C‑382/12 P, EU:C:2014:2201, paragraph 41 and the case-law cited). Such a general reference is therefore inadmissible.

53 Fourth and lastly, as regards the argument that the intervener, in the statement of grounds of its appeal before the Fourth Board of Appeal, stated that the additional evidence had been submitted in order to demonstrate that the link between healthy nutrition and good physical shape already existed at the time of registration of the contested mark, it is sufficient to note that that assertion does not call into question the relevance of that evidence. Even if the evidence relates to a period subsequent to the date of the application for registration, in accordance with the case-law, it cannot be ruled out that the adjudicating bodies of EUIPO may take into account, where appropriate, evidence subsequent to that date, provided that that evidence enables conclusions to be drawn regarding the situation as it was on that date (see judgment of 13 May 2020, SolNova v EUIPO – Canina Pharma (BIO-INSECT Shocker) , T‑86/19, EU:T:2020:199, paragraph 59 and the case-law cited).

54 It follows that the Fifth Board of Appeal did not err in law or make a manifest error of assessment in finding that the evidence submitted before the Fourth Board of Appeal was, prima facie, relevant to the outcome of the dispute.

(d) The third complaint, alleging that the evidence submitted before the Fourth Board of Appeal was not supplementary

55 The applicant claims that the Fifth Board of Appeal’s finding that the evidence submitted before the Fourth Board of Appeal was supplementary to that submitted in due time before the Cancellation Division, in so far as, according to the Fifth Board of Appeal, it also sought to strengthen the alleged descriptive link between the meaning of the term ‘fitness’ and the goods at issue, infringes Article 76(2) of Regulation No 207/2009.

56 According to the applicant, the supplementary nature of an item of evidence must be analysed in the light of the specific evidence submitted in due time and cannot be inferred simply from the intention of a party to prove the same argument or legal concept. Rather, the relevant item of evidence should be limited to the factual content of the evidence already on file. According to the applicant, should the Cancellation Division find that certain facts or evidence submitted before it are irrelevant or insufficient to rebut the presumption of validity of a registered mark, it would not be possible to prove that the Cancellation Division’s conclusion is incorrect by referring, at the appeal stage, to different facts or evidence, that is to say, to content which was never submitted before the Cancellation Division. The applicant infers from that that the concept of ‘supplementariness’ for the purposes of Article 76(2) of Regulation No 207/2009 must be interpreted strictly. By failing to carry out the necessary analysis, point by point, in order to determine whether there was a factual and substantive link between the specific items of evidence, the Fifth Board of Appeal erred in law.

57 The applicant claims that a correct analysis, in the present case, would have shown that there was no such factual link. The evidence submitted out of time was gathered and submitted for the specific purpose of proving the descriptive link and use at the time of registration, while almost all the documents submitted before the Cancellation Division concerned the year 2011 and thereafter. Thus, there is no factual link between the various items of evidence and, therefore, the evidence submitted before the Fourth Board of Appeal cannot be regarded as supplementary.

58 Lastly, according to the applicant, the Fifth Board of Appeal made further errors of law in finding that the applicant had neither explained why it considered that the evidence submitted out of time was not supplementary but new, nor set out valid reasons capable of calling into question the findings that that evidence was supplementary. The applicant submits that it was for the intervener to prove that that evidence was supplementary and that it had explained, in detail, in its observations of 12 May 2014 and 17 December 2020, why it was ‘first time evidence’ and not merely supplementary evidence.

59 EUIPO and the intervener dispute the applicant’s arguments.

60 It should be noted that, in the present case, the Fifth Board of Appeal found that the evidence submitted before the Fourth Board of Appeal supplemented that submitted before the Cancellation Division in so far as it clarified the descriptive link between the meaning of the term ‘fitness’ and the goods at issue, on the relevant date of filing of the application for registration of the contested mark.

61 In particular, the Fifth Board of Appeal stated, in paragraph 57 of the contested decision, that, in view of the grounds set out in the decision of the Cancellation Division, namely that the evidence submitted by the intervener before it, although relevant, was not sufficient to demonstrate the descriptive link between the meaning of the term ‘fitness’ and the goods at issue, it appeared that the evidence submitted for the first time at the appeal stage, which contained more examples of the meaning and understanding of the term in question in relation to the goods at issue, had to be regarded as merely supplementary and intended to support the content of the documents initially submitted.

62 Furthermore, in response to the applicant’s claim that the evidence submitted before the Fourth Board of Appeal was not supplementary in so far as it sought to demonstrate the descriptive character of the contested mark at a period different from that referred to in the initial evidence, the Fifth Board of Appeal stated that the application for a declaration of invalidity had been rejected by the Cancellation Division, not because of the failure to demonstrate the descriptive character of the contested mark at the relevant date, but because the intervener had not explained or established that the public perceived the term ‘fitness’ as having a direct and immediate descriptive link with the goods at issue. It added that, even if the intervener’s intention was to establish the existence of the alleged descriptive character on the relevant date, that evidence had to continue to be regarded as supplementary and not new.

63 In that regard, it should be noted, first, that the approach advocated by the applicant, according to which, in order to be classified as supplementary evidence, that evidence must have a factual link with the evidence submitted before the Cancellation Division, is based on a strict interpretation of Article 76(2) of Regulation No 207/2009 which is not supported by the case-law. Supplementary evidence is characterised by a link with other evidence previously submitted in due time which it supplements (see judgment of 19 January 2022, Masterbuilders, Heiermann, Schmidtmann v EUIPO – Cirillo (POMODORO) , T‑76/21, not published, EU:T:2022:16, paragraph 40 and the case-law cited).

64 Similarly, the case-law only requires that evidence submitted after the time limit set by the Cancellation Division should not be the first and only evidence concerning the meaning of a term and its perception in relation to the goods or services at issue, as such evidence may be qualified as ‘supplementary’ or ‘additional’ evidence supplementing relevant evidence submitted within the prescribed time limit (see, to that effect, judgments of 18 July 2013, New Yorker SHK Jeans v OHIM , C‑621/11 P, EU:C:2013:484, paragraph 30, and of 9 September 2020, Kludi v EUIPO – Adlon Brand (ADLON) , T‑144/19, not published, EU:T:2020:404, paragraph 59 and the case-law cited).

65 In the present case, it must be noted that the evidence submitted by the intervener before the Cancellation Division related to the meaning and perception of the term ‘fitness’ in connection with the goods at issue. However, that evidence was found by the Cancellation Division to be, admittedly, relevant but insufficient to demonstrate that there was a sufficiently direct link between the meaning of the term ‘fitness’, in the sense of good physical shape, and the goods at issue. The evidence submitted before the Fourth Board of Appeal, consisting of other examples of the meaning and understanding of the term ‘fitness’ in connection with the goods at issue, was, as the Fifth Board of Appeal found, supplementary to that submitted before the Cancellation Division.

66 Second, as regards the applicant’s claim that the Fifth Board of Appeal reversed the burden of proof, it must be pointed out that that is the result of a partial and incorrect reading of the contested decision. Although it is true that that Board of Appeal found, in paragraph 60 of the contested decision, that the applicant had not explained why it considered that the additional evidence was not supplementary but new, and, in paragraph 66 of that decision, that the applicant had not set out valid reasons capable of calling into question that Board of Appeal’s findings, those assessments were intended solely to show that the arguments put forward by the applicant were not such as to invalidate the conclusion that the evidence submitted before the Fourth Board of Appeal was supplementary. A fortiori, it should be noted, as the intervener has pointed out, that the latter stated, in its statement setting out the grounds of appeal, why, in its view, that evidence was supplementary.

67 Third, as regards the applicant’s general reference to the documents submitted before the various Boards of Appeal, it should be borne in mind that, in accordance with the case-law cited in paragraph 52 above, that reference is inadmissible.

68 It follows that the applicant has not demonstrated that the Fifth Board of Appeal erred in law or made a manifest error of assessment in the light of Article 76(2) of Regulation No 207/2009 in finding that the evidence submitted before the Fourth Board of Appeal was supplementary to that submitted before the Cancellation Division.

(e) The fourth complaint, alleging that there were no grounds justifying the late submission of the evidence submitted before the Fourth Board of Appeal

69 The applicant claims that the characterisation by the Fifth Board of Appeal of the Cancellation Division’s decision as a new factor justifying the late submission of evidence is vitiated by a distortion of the facts and errors of law. According to the applicant, it does not follow from the 2024 annulment judgment that that decision had to be regarded as sufficient justification. Therefore, the applicant claims that the Fifth Board of Appeal erred in law by completely ignoring the fact that the intervener had not proved that it was impossible to produce the evidence submitted out of time before the Fourth Board of Appeal. The mere statement that the evidence submitted before the Fourth Board of Appeal corresponded to ‘supplementary evidence’ cannot justify its late submission.

70 According to the applicant, the circumstances surrounding the filing of that evidence militate against its being taken into consideration. In that regard, it claims that it maintained throughout the proceedings before the Cancellation Division that the evidence submitted by the intervener did not relate to the relevant period and that its content was insufficient, with the result that the Cancellation Division’s decision was a direct and foreseeable consequence of the arguments exchanged before it. Thus, according to the applicant, the intervener had multiple opportunities to remedy the deficiencies in its application for a declaration of invalidity and the evidence submitted out of time could have been gathered before that application was filed or at any time during the proceedings before the Cancellation Division. Therefore, according to the applicant, the Fifth Board of Appeal wrongly assumed that it was ‘reasonable’ for the intervener to rely on the evidence submitted at first instance, since that alleged ‘reasonableness’ is contradicted by the fact that, in the contested decision, the Fifth Board of Appeal relied almost exclusively on the evidence submitted out of time. Furthermore, the Fifth Board of Appeal was also wrong to state that there was also not ‘any negligence’ on the part of the intervener. According to the applicant, a reasonably prudent applicant for a declaration of invalidity would have sought to remedy the obvious and controversial deficiencies in the evidence submitted before the Cancellation Division, even as a subsidiary argument.

71 Moreover, according to the applicant, it is not apparent from the judgment on appeal that the existence of a ‘new factor’ in itself justifies the late submission of evidence. The Fifth Board of Appeal relied on the incorrect premiss that the intervener had already proved that the term ‘fitness’ had been used descriptively for goods before the Cancellation Division. However, that was not the case. Although that aspect was pointed out by the applicant before the Cancellation Division, the intervener deliberately chose not to submit further evidence in its final observations before the Cancellation division.

72 Furthermore, the applicant submits that the Fifth Board of Appeal was wrong to base its reasoning on the judgment of 16 November 2011, Buffalo Milke Automotive Polishing Products v OHIM – Werner & Mertz (BUFFALO MILKE Automotive Polishing Products) (T‑308/06, EU:T:2011:675), which concerns a completely different set of facts and legal considerations.

73 Lastly, according to the applicant, the Fifth Board of Appeal completely ignored the weight, value and content of the applicant’s observations and arguments.

74 EUIPO and the intervener dispute the applicant’s arguments.

75 As regards, in the first place, the existence of a new factor in the present case, justifying the production of the evidence submitted before the Fourth Board of Appeal, it should be borne in mind that the General Court, in paragraph 77 of the 2024 annulment judgment, held that the First Board of Appeal had erred in law in its decision of 12 October 2021 in finding, in that decision, by reference to the judgment of 22 September 2011, Cesea Group v OHIM – Mangini & C. (Mangiami) (T‑250/09, not published, EU:T:2011:516), that the Cancellation Division’s decision was not a ‘new factor’ which could justify the late submission of evidence during the appeal proceedings. Similarly, in paragraph 83 of the 2024 annulment judgment, the General Court held that the only ground put forward by the First Board of Appeal for finding that the applicant had not submitted a ‘new factor’ justifying the submission of supplementary evidence was vitiated by an error of law and that, therefore, the First Board of Appeal had not put forward valid reasons for disregarding the evidence submitted for the first time at the appeal stage.

76 In the contested decision, referring in particular to the 2024 annulment judgment, the Fifth Board of Appeal endorsed the intervener’s justifications that the purpose of the evidence submitted before the Fourth Board of Appeal was to challenge the findings of the Cancellation Division’s decision, in particular as regards the allegedly insufficient evidence of a direct descriptive link between the meaning of the term ‘fitness’ and the goods at issue. It added, inter alia, that the evidence submitted before the Cancellation Division was already ‘quite substantial’ and contained references to the meaning of the term ‘fitness’ at the date of filing of the application for registration of the contested mark.

77 Therefore, in view of the explanations provided by the intervener, the evidence already submitted before the Cancellation Division and the purpose and public interest of proceedings based on absolute grounds, the Fifth Board of Appeal concluded that the Cancellation Division’s decision constituted a ‘new factor’ as established in the relevant case-law, thus justifying the late submission of supplementary evidence.

78 In that regard, it should be noted that the Fifth Board of Appeal complied with the grounds of the 2024 annulment judgment, which was not the subject of an appeal and has thus become final, and from which it is apparent, in essence, that the Cancellation Division’s decision was a new factor capable of justifying the submission of supplementary evidence (see paragraph 75 above). Furthermore, contrary to the applicant’s claims, while relying on the 2024 annulment judgment, the Fifth Board of Appeal did not find that it was apparent from that judgment that the Cancellation Division’s decision must necessarily, and without further assessment, be qualified as sufficient justification for the production of the evidence submitted before the Fourth Board of Appeal. As is apparent from paragraphs 67 to 82 of the contested decision, the Board of Appeal carried out its own assessment of the justification put forward by the intervener in order to find that the Cancellation Division’s decision constituted a new factor justifying the production of the evidence submitted before the Fourth Board of Appeal. Those considerations are not effectively called into question by the applicant’s various arguments by which it seeks, in essence, to dispute the prima facie relevance and supplementary nature of that evidence, since those arguments have already been rejected in paragraphs 54 and 68 above.

79 In the second place, as regards the claim that the intervener has not demonstrated why it was impossible for it to produce the evidence submitted out of time before the Cancellation Division, it must be noted that the intervener justified its late submission by the Cancellation Division’s findings that the evidence initially submitted was inadequate and insufficient. That line of argument, in the circumstances of the present case, must be regarded as equivalent to demonstrating that it was impossible to submit that evidence within the prescribed period. The intervener could not know the Cancellation Division’s position before it had adopted its decision, even though the applicant maintained during the proceedings before the Cancellation Division that the evidence initially submitted was insufficient.

80 In that context, it must be added that the Fifth Board of Appeal responded to the claim that the Cancellation Division’s rejection of the application for a declaration of invalidity was foreseeable and that, therefore, the intervener had acted negligently. That Board of Appeal found that, given that the intervener had submitted the supplementary evidence before the Fourth Board of Appeal at the earliest possible opportunity, it had not resorted to any delaying tactics, nor had it acted negligently. It added that the stage of the proceedings and the other circumstances relied on by the applicant cannot counteract or counterbalance the reasons for accepting that evidence. Those findings of the Fifth Board of Appeal are not vitiated by any manifest error of assessment.

81 In the third place, as regards the judgment of 16 November 2011, BUFFALO MILKE Automotive Polishing Products (T‑308/06, EU:T:2011:675), the Fifth Board of Appeal referred to it, in paragraphs 79 and 80 of the contested decision, merely to illustrate the fact that the Court had already classified a decision of an Opposition Division as a new factor justifying the submission of supplementary evidence at the appeal stage. It follows that the applicant’s argument that the supplementary evidence in the case which gave rise to that judgment was of a different nature must be rejected.

82 In the fourth place, lastly, as regards the argument that the Fifth Board of Appeal completely ignored the weight, value and content of the applicant’s observations and arguments, it is sufficient to note, first, that that Board of Appeal responded to the applicant’s observations in paragraphs 83 to 98 of the contested decision and, second, that the applicant does not refer to any specific argument that was ignored by that Board of Appeal.

83 In the light of all the foregoing, it must be concluded that the Fifth Board of Appeal did not err in law or make a manifest error of assessment in finding that the Cancellation Division’s decision constituted a new factor justifying the production of the evidence submitted before the Fourth Board of Appeal and that the circumstances of the case did not preclude that evidence from being taken into account.

84 Accordingly, the first plea in law must be rejected as unfounded.

2. The second plea in law, alleging infringement of Article 51 (1)(a) of Regulation No 4 0/94, read in conjunction with Article 7 (1)(c) of that regulation

85 By its second plea, the applicant alleges infringement of Article 7(1)(c) of Regulation No 40/94 by claiming that it has not been demonstrated that the contested mark was descriptive of the goods at issue.

86 EUIPO and the intervener dispute the applicant’s arguments.

87 In that regard, pursuant to Article 51(1)(a) of Regulation No 40/94, an EU trade mark is to be declared invalid on application to EUIPO or on the basis of a counterclaim in infringement proceedings where that trade mark has been registered contrary to the provisions of Article 7 of that regulation.

88 Article 7(1)(c) of Regulation No 40/94 provides that 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 must not be registered. Article 7(2) of that regulation provides that Article 7(1) of Regulation No 40/94 is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union.

89 Those signs or indications are regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services (judgments of 23 October 2003, OHIM v Wrigley , C‑191/01 P, EU:C:2003:579, paragraph 30, and of 27 February 2002, Eurocool Logistik v OHIM (EUROCOOL) , T‑34/00, EU:T:2002:41, paragraph 37).

90 For a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation No 40/94, there must be a relationship between the sign and the goods or services in question that is sufficiently direct and specific to enable the relevant public immediately to perceive, without further thought, a description of the goods and services in question or of one of their characteristics (see judgments of 12 January 2005, Deutsche Post EURO EXPRESS v OHIM (EUROPREMIUM) , T‑334/03, EU:T:2005:4, paragraph 25 and the case-law cited, and of 22 June 2005, Metso Paper Automation v OHIM (PAPERLAB) , T‑19/04, EU:T:2005:247, paragraph 25 and the case-law cited).

91 In that regard, it should be borne in mind that, by using the terms ‘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’ in Article 7(1)(c) of Regulation No 40/94, the EU legislature made it clear, first, that those terms must all be regarded as corresponding to characteristics of goods or services and, second, that that list is not exhaustive, since any other characteristics of goods or services may also be taken into account (see judgment of 7 May 2019, Fissler v EUIPO (vita) , T‑423/18, EU:T:2019:291, paragraph 42 and the case-law cited).

92 The fact that the EU legislature chose to use the word ‘characteristic’ highlights the fact that the signs referred to in Article 7(1)(c) of Regulation No 40/94 are solely those which serve to designate a property, easily recognisable by the relevant public, of the goods or the services in respect of which registration is sought. Consequently, a sign can be refused registration on the basis of that provision only if it is reasonable to believe that it will actually be recognised by the relevant public as a description of one of those characteristics (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraph 50, and of 3 July 2013, Airbus v OHIM (NEO) , T‑236/12, EU:T:2013:343, paragraph 32).

93 Furthermore, although it is irrelevant whether such a characteristic is commercially essential or ancillary, a characteristic, within the meaning of Article 7(1)(c) of Regulation No 40/94, must nevertheless be objective and inherent to the nature of that product or service and intrinsic and permanent with regard to that product or service (see judgment of 7 May 2019, vita , T‑423/18, EU:T:2019:291, paragraph 44 and the case-law cited).

94 In addition, it should be borne in mind that, according to the case-law, when considering whether the absolute grounds referred to in Article 7(1) of Regulation No 40/94 preclude the registration of a mark or must give rise to a declaration that a previously registered mark is invalid, the adjudicating bodies of EUIPO must take the date of filing of the application for registration as the material date (see judgment of 13 May 2020, BIO-INSECT Shocker , T‑86/19, EU:T:2020:199, paragraph 23 and the case-law cited). However, for the purpose of examining such an application for a declaration of invalidity, it is possible, in accordance with the case-law cited in paragraph 53 above, to take into account evidence which, although subsequent to that date, allows conclusions to be drawn regarding the situation as it was at that time (see order of 23 April 2010, OHIM v Frosch Touristik , C‑332/09 P, not published, EU:C:2010:225, paragraph 43, and judgment of 2 February 2022, Maternus v EUIPO – adp Gauselmann (WILD) , T‑116/21, not published, EU:T:2022:47, paragraph 38 and the case-law cited).

95 Moreover, it is not necessary that the signs and indications composing the mark that are referred to in Article 7(1)(c) of Regulation No 40/94 actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes. A word sign must therefore be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned (see, to that effect, judgments of 23 October 2003, OHIM v Wrigley , C‑191/01 P, EU:C:2003:579, paragraph 32, and of 10 March 2011, Agencja Wydawnicza Technopol v OHIM , C‑51/10 P, EU:C:2011:139, paragraph 38 and the case-law cited).

96 Lastly, in invalidity proceedings based on an absolute ground for refusal, as the registered EU trade mark is presumed to be valid, it is for the person who has filed the application for a declaration of invalidity to invoke before EUIPO the specific facts which call the validity of that trade mark into question (judgment of 13 September 2013, Fürstlich Castell’sches Domänenamt v OHIM – Castel Frères (CASTEL) , T‑320/10, EU:T:2013:424, paragraph 28).

97 It is in the light of the abovementioned principles that the complaints put forward in the context of the present plea must be examined.

98 In the present case, as a preliminary point, it should be noted that the applicant does not dispute the definition of the relevant public adopted by the Fifth Board of Appeal in paragraphs 125 to 127 of the contested decision, according to which that public consisted of the general public in the Member States in which English was the official language on the date of the application for registration of the contested mark, that is, 20 November 2001, namely Ireland and the United Kingdom.

(a) The examination of the evidence

99 In addition to the arguments put forward in the context of the first plea, the applicant claims that the examination of the evidence by the Fifth Board of Appeal is vitiated by material inaccuracies and it challenges the grounds put forward by that Board of Appeal.

(1) The meaning of the term ‘fitness’ and the relevance of the evidence submitted before the Cancellation Division

100 The applicant submits that the term ‘fitness’ is commonly understood, first of all, as referring to the ‘suitableness of things for their use’ or ‘the ability to perform a function’. None of the dictionary extracts in the file provides for an indication about an actual or conceivable perception of the descriptive use of the word ‘fitness’ by the relevant public in relation to general foodstuffs. The applicant submits that even the most narrow meaning adopted by the Fifth Board of Appeal, according to which ‘fitness’ means ‘a good physical and/or healthy shape which may be gained in particular by exercise and healthy nutrition’ is not apparent from the evidence in the file.

101 Similarly, according to the applicant, Exhibit 20, submitted by the intervener and apparently containing pages from two Romanian dictionaries, to which the Fifth Board of Appeal referred, is not relevant in so far as it does not concern the relevant public or the date of filing of the application for registration of the relevant contested mark. In any event, those extracts do not refer to exercise or nutrition and do not support the concept of healthy nutrition as a necessary means of achieving a good physical shape, or the fact that the term ‘nutrition’ is equivalent to ‘food’ or ‘drinks’.

102 Furthermore, the applicant submits that the narrower meaning of the term ‘fitness’ adopted by the Fifth Board of Appeal is specific to the sports sector and thus is not relevant for consumers who purchase everyday foodstuffs. Those goods are not purchased with the intention of improving sports performance as are certain food supplements or with the aim of improving health or providing the intake of specific nutrients, since they do not pursue that purpose.

103 Lastly, the applicant submits that the Fifth Board of Appeal’s assessment of the other evidence submitted before the Cancellation Division is also incorrect. According to the applicant, that evidence does not support the use of the term ‘fitness’ in a descriptive manner ‘on products’.

104 EUIPO and the intervener dispute the applicant’s arguments.

105 As regards the meaning of the term ‘fitness’, the Fifth Board of Appeal found that it was apparent from Exhibit 20 that that term referred, already at the date of filing of the application for registration of the relevant contested mark, to a good physical or healthy shape which may be gained in particular by exercise and healthy nutrition. According to the Fifth Board of Appeal, that definition is supported by the evidence submitted before the Fourth Board of Appeal, from which it is apparent that end consumers in the Member States in which English is the official language would understand the contested mark as a reference to a good physical or healthy shape which may be gained in particular by exercise and healthy nutrition.

106 As regards the applicant’s claim that Exhibit 20 corresponds to extracts from Romanian dictionaries and, therefore, is irrelevant to the relevant public identified by the Fifth Board of Appeal, it must be held that that is indeed the case and that that Board of Appeal appears to have adopted the erroneous numbering of the evidence used by the Cancellation Division.

107 However, despite that clerical error, it should be noted that an extract from the website ‘The Free Dictionary’, referring to the dictionaries American Heritage® Dictionary of the English Language and Collins English Dictionary , described as ‘Exhibit 20’ by the Cancellation Division and containing the definition reproduced by the Fifth Board of Appeal in paragraph 129 of the contested decision, is among the evidence submitted by the intervener before the Cancellation Division. The applicant’s argument therefore cannot succeed.

108 The relevance of the definition adopted by the Fifth Board of Appeal cannot be called into question by the applicant’s other arguments.

109 First, as regards the argument that the term ‘fitness’ will be understood by the English-speaking public, first and foremost, as meaning ‘the suitableness of things for their use’ or ‘the ability to perform a function’, it must be borne in mind that, according to the case-law cited in paragraph 95 above, a word sign must be refused registration under Article 7(1)(c) of Regulation 2017/1001 if at least one of its possible meanings designates a characteristic of the goods or services concerned. Consequently, the fact that the term constituting the contested mark may also be understood in the sense alleged by the applicant is irrelevant in the present case.

110 Second, as regards the argument that the term ‘fitness’, in so far as it means ‘good physical shape’, is specific to the sports sector, it should be noted that that argument is not substantiated and that that characteristic is not apparent from the definition of the term ‘fitness’ adopted by the Fifth Board of Appeal (see paragraph 105 above). Moreover, that argument has already been rejected, in essence, by the Fifth Board of Appeal (see paragraphs 131 to 133 and 169 of the contested decision) without the applicant putting forward specific arguments to call into question that Board of Appeal’s position.

111 Lastly, the applicant’s claims regarding the relevance of the other evidence submitted before the Cancellation Division are in no way substantiated and, for that reason, must be rejected.

(2) The relevance of the evidence submitted before the Fourth Board of Appeal

112 The applicant submits that the Fifth Board of Appeal incorrectly assessed the evidence submitted out of time by the intervener. That evidence did not establish that, shortly after the date on which the application for registration of the contested mark was filed, the term ‘fitness’ was used in a descriptive manner by indicating the purpose of healthy foodstuffs which promote and contribute to maintaining or achieving good physical health. According to the applicant, the evidence submitted by the intervener rather points to a mere conceptual and suggestive connection between the concept of good physical shape and the general importance of proper nutrition.

113 EUIPO and the intervener dispute the applicant’s arguments.

114 In the present case, the Fifth Board of Appeal found that, on the basis of the evidence submitted before the Fourth Board of Appeal, the intervener had demonstrated that good physical shape or being in good health, which corresponds to the concept of ‘fitness’, was very closely linked to, and dependent on, nutrition, amongst other factors.

115 First, as regards Exhibits 1 to 3, it must be stated that the applicant’s argument that those works did not deal with the quality which food should possess in order to promote physical fitness are not such as to call into question the Fifth Board of Appeal’s finding that they establish that the concepts of food and physical fitness were closely linked in the perception of the relevant consumers (see paragraphs 139, 140 and 144 of the contested decision).

116 Second, as regards Exhibit 4, the applicant’s argument that that book does not deal with the characteristics or purpose of everyday foodstuffs and also that the two concepts of ‘food’ and ‘exercise’ are treated separately, cannot contradict the Fifth Board of Appeal’s finding that that book shows that, at the time in question, namely in 2002, the state of being fit was strongly dependent on a sane and balanced intake of the appropriate foodstuffs (see paragraph 147 of the contested decision).

117 Third, as regards Exhibits 8 to 11, the applicant merely claimed that the web pages contained therein are obscure and irrelevant, since they are aimed at a different public and, consequently, cannot substantiate the alleged direct relationship. Those claims are not, however, such as to call into question the findings of the Fifth Board of Appeal that it is apparent from those websites that physical fitness and health may be gained or favoured by a diet containing bread or cereals. As regards the fact that those websites were not aimed at the relevant public, the Fifth Board of Appeal stated that, in so far as they are written in English, they could be consulted by the English-speaking public of the European Union and, in any event, also reflect the understanding of the term ‘fitness’ in Europe (see paragraphs 148 to 151 of the contested decision).

118 Fourth, as regards Exhibit 13, the applicant submits that the Fifth Board of Appeal, which paid particular attention to that item of evidence, wrongly found that it was apparent from that document that the terms ‘fitness’ and ‘health’ were synonymous. According to the applicant, that document is not about the characteristics or purpose of everyday foodstuffs and treats the concepts of diet and physical activity separately.

119 In that regard, the Fifth Board of Appeal noted that that document contained in Exhibit 13 corresponded to a full programme designed to promote healthy eating and physical activity for children and young people in Wales. According to that Board of Appeal, that programme raises awareness of the importance of a sane and balanced intake of foodstuffs for physical well-being in particular for children, and proposes an action plan including measures highlighting the close link between healthy food and physical fitness, in the sense of being in good health and good physical shape. Similarly, the Fifth Board of Appeal inferred from that plan that a balanced diet and appropriate levels of physical activity were important for good health or, in other words, fitness.

120 It must be held that the applicant’s claims are entirely unfounded. The clarification ‘in other words fitness’ contained in the Fifth Board of Appeal’s statement, in paragraph 157 of the contested decision, according to which a balanced diet and appropriate levels of physical activity are important for good health or, in other words, fitness, does not come from Exhibit 13, but from the definition of the term ‘fitness’ used (see paragraph 105 above) as meaning good physical or healthy shape. Similarly, the Fifth Board of Appeal did not find that the document related to the characteristics or purpose of everyday foodstuffs. Lastly, the fact that diet and physical activity are treated separately in that document does not preclude the possibility that both aspects may improve health.

121 Fifth, as regards Exhibits 14 to 22, the applicant submits that, although the American magazine Men’s Fitness features articles in the ‘Food and Nutrition’ category, that does not, however, demonstrate that the term ‘fitness’, as used in the title of the magazine, is descriptive of the expression ‘food and nutrition’.

122 Although the Fifth Board of Appeal found that some of the articles submitted by the intervener addressed the important relationship between ‘food’ and ‘fitness’, it nevertheless did not find, contrary to the applicant’s claims, that the term ‘fitness’, used in the title of the magazine, is, as a result of that use, descriptive of the expression ‘food and nutrition’. Consequently, the assessments of the Fifth Board of Appeal are not called into question by the applicant’s arguments.

123 It follows that all of the arguments put forward by the applicant seeking to call into question the assessments of the evidence by the Fifth Board of Appeal must be rejected as unfounded.

(b) The misapplication of the concept of ‘descriptive character ’ and the absence of a direct link with the intrinsic characteristics or intended use of the goods at issue

124 The applicant submits that, as regards the concept of ‘descriptive character’, the Fifth Board of Appeal ‘imposed a too strict standard that is not supported by law’. Thus, that Board of Appeal, in its summary of the essential principles of the concept of descriptive character, adopted a biased view, resulting in a manifestly incorrect application of that concept in that the Board of Appeal disregarded the distinction between descriptive marks and evocative marks. According to the applicant, the Fifth Board of Appeal did not place sufficient emphasis on the fact that the finding of descriptiveness required an easily recognisable, direct and specific relationship enabling the relevant public immediately to perceive a clear description of the product or service or of one of its intrinsic and permanent characteristics.

125 The applicant claims that the Fifth Board of Appeal erred in law in finding that, at the date of filing of the application for registration of the contested mark, it was very likely that the term ‘fitness’ would be used in the future as an indication to describe the intrinsic qualities or purpose of the goods at issue. It submits that the considerations in paragraphs 176 and 191 of the contested decision, relating to the existence of a direct and specific link between the sign and those goods, are not supported by the evidence submitted by the intervener, are based on an incorrect examination of that evidence, and also cannot support the finding of descriptiveness in the present case. The findings of the Fifth Board of Appeal are the result of an extensive extrapolation, centred on unsupported and, in any event, unspecific assumptions, ‘all of which are commingled in a complex multi-step analysis’.

126 Those steps consist, first, in the selection of a meaning of the word ‘fitness’, specific to the sports sector, second, in the assumption that good physical shape will be perceived as equivalent to ‘good health’, third, that that good physical shape is not linked solely to general intake of food, fourth, that it is directly linked to a particular quality of the food and, fifth, that that quality makes it possible to draw a clear distinction between, on the one hand, basic foods perceived as ‘good’ and, on the other hand, processed or tinned foods which are not ‘good’ or ‘healthy’. The applicant contests those assumptions made by the Fifth Board of Appeal and argues that, in any event, the complexity of the analysis as a whole proves that a cognitive process is required in order to reach the conclusions of the contested decision.

127 Referring to the case-law, the applicant submits that the concept of ‘fitness’ is by no means an intrinsic and permanent characteristic of the goods at issue. There is no direct relationship between those goods and the concept of ‘fitness’, even where the latter is understood as being in ‘good physical shape’. That concept does not correspond to a function or purpose of the goods as such. It is only in combination with other activities such as exercise or a specific diet that food can be linked to and may contribute to physical fitness. According to the applicant, the contested mark is at most evocative or suggestive of the goods at issue.

128 EUIPO and the intervener dispute the applicant’s arguments.

129 In the present case, the Fifth Board of Appeal found that the term ‘fitness’ was understood, at the very least, in the sense of being ‘healthy/in good physical condition’ and that the intervener had demonstrated that that state of being fit or in good shape are very closely linked to, and dependent on, nutrition, amongst other factors.

130 In particular, the Fifth Board of Appeal found that the evidence submitted by the parties clearly established that the term ‘fitness’, referring to being in good physical shape and good health, was used in connection with the consumption of foodstuffs which did not contain excessive quantities of certain unhealthy ingredients, possessed nutritional qualities, and were low in calories or fat, and that that characteristic could apply to almost all types of food. Consequently, according to that Board of Appeal, it was apparent from the evidence submitted by the parties that, shortly after the date on which the application for registration of the contested mark was filed, the term ‘fitness’ had been used descriptively by indicating the purpose of healthy foodstuffs which fostered and helped to maintain or achieve a good and healthy physical state. According to the Fifth Board of Appeal, that fact confirmed and demonstrated precisely that, on the date on which the application for registration of the contested mark was filed, it could reasonably be assumed that the concept of ‘fitness’ would be used, in the near future, to describe certain qualities of almost all kinds of foodstuffs as well as their intended purpose to allow the achievement or preservation of a healthy and good physical shape.

131 Thus, the Fifth Board of Appeal reached the conclusion that, on the date on which the application for registration of the contested mark was filed, it was very likely that, in the near future, the sign FITNESS would enable consumers to establish immediately and without further reflection a concrete and direct association with the goods at issue, namely, as regards their nutritional qualities, the fact that they are low in calories or fat, or that they enable consumers to get fit or to maintain physical fitness or good health. It added that it was well-known, on the date on which the application for registration of the contested mark was filed, that the consumption of healthy, quality food and drinks, containing certain elements such as vitamins, proteins and trace elements, promoted health in terms of immunologic protection, resistance, physical and mental performance and well-being. Thus, according to the Fifth Board of Appeal, the evidence submitted both before the Cancellation Division and at the appeal stage showed unequivocally that, in the general foodstuff and beverage sectors, the term ‘fitness’ had always been used to indicate that goods were of good quality and that, consequently, their intake would have positive effects on the state of being and on health.

132 First of all, as regards the concept of descriptive character, it should be noted that, contrary to the applicant’s claims, the Fifth Board of Appeal neither imposed criteria that were too strict, nor disregarded the distinction between descriptive and evocative character, nor did it merely require ‘some sort of connection’ between the sign and the goods at issue. Prior to its analysis, in paragraph 172 of the contested decision, the Board of Appeal expressly recalled the applicable principles, cited in paragraph 95 above, according to which, in order to assess whether a mark is descriptive, it is necessary to determine whether, in the mind of the category of persons concerned, the sign at issue describes a characteristic of the goods or services concerned or whether it is reasonable to assume that that might be the case in the future. In so doing, the Fifth Board of Appeal neither distorted that case-law nor attempted to introduce new criteria for the assessment of the descriptive character of the contested mark.

133 Next, it should be noted that, in accordance with those principles, as well as those recalled in paragraphs 89 to 96 above, the Fifth Board of Appeal concluded that there was a direct link between the meaning of the contested mark and the goods at issue and that, on the date on which the application for registration of that mark was filed, it was very likely that the sign FITNESS would be used in the near future as an indication to describe the intrinsic qualities or intended purpose of the goods at issue (see paragraphs 130 and 131 above).

134 In that regard, it must be held that, contrary to the applicant’s claims, the Fifth Board of Appeal did not carry out an ‘extensive extrapolation’ of unsupported assumptions or a complex multi-step analysis. On the contrary, as is apparent from the contested decision, the link between the contested mark and the goods at issue is directly descriptive, given that the use of the term ‘fitness’, which means a good physical or healthy shape which may be gained in particular by exercise and healthy nutrition (see paragraph 105 above), indicates the quality and purpose of the goods at issue in that they enable the attainment or maintenance of physical fitness and good health.

135 Lastly, as regards the judgments to which the applicant referred in order to claim that the concept of ‘fitness’ does not correspond to an intrinsic and permanent characteristic of the goods at issue, it should be noted that the circumstances of the cases which gave rise to those judgments are different from those of the present case and that the line of argument relied on by the applicant was rejected by the Fifth Board of Appeal (see paragraph 193 of the contested decision) without the applicant putting forward arguments capable of calling into question that Board of Appeal’s reasoning.

136 It follows that the present complaint must be rejected as unfounded.

(c) The descriptive character of the contested mark with regard to all the goods covered by it

137 The applicant submits that the Fifth Board of Appeal made a ‘fundamental’ error in finding that all the goods covered by the contested mark comprised basic, healthy and traditional foodstuffs which are undeniably good or even indispensable for healthy living. It submits that those assumptions are unfounded and are not supported by any of the evidence submitted by the intervener. The Fifth Board of Appeal thus infringed Article 95(1) of Regulation 2017/1001 by making those assumptions the centre of its analysis. Even if the Fifth Board of Appeal had relied on well-known facts, it infringed Article 94(1) of Regulation 2017/1001 in that the parties were not given an opportunity to present their comments on those assumptions.

138 In any event, the applicant submits that the Fifth Board of Appeal’s assumptions could not be applied to all the goods at issue, in particular, substitutes for dairy products, jellies, flavoured water, fruit drinks, lemonades, sodas and other non-alcoholic drinks, syrups and other preparations for making syrups and other preparations for making beverages which are neither ‘healthy’ nor ‘good’, but rather fall within the category of ‘processed or tinned foods’.

139 Lastly, the applicant claims that the contested decision infringes the first sentence of Article 95(1) of Regulation 2017/1001 in so far as the reasoning given by the Fifth Board of Appeal concerning the descriptive character of the contested mark does not apply to each of the goods at issue. According to the applicant, since those goods were not homogeneous and did not all have the same characteristic, it was for the Fifth Board of Appeal to provide precise grounds for the alleged descriptive nature of the contested mark in respect of each of the goods covered by that mark.

140 EUIPO and the intervener dispute the applicant’s arguments.

141 In the first place, as regards the considerations set out in paragraphs 188 to 193 and 213 of the contested decision, the applicant’s line of argument seeks, first, to challenge the merits of the findings of the Fifth Board of Appeal and, second, to maintain that they are not supported by evidence.

142 In that regard, it must be noted that, after identifying the nutritional qualities of certain goods covered by the contested mark, such as milk and dairy products, fruit juice, cereals and mineral water, the Fifth Board of Appeal stated, in paragraph 191 of the contested decision, that all the goods covered by the contested mark included basic, healthy and traditional foodstuffs which, unlike, for example, processed or tinned foods, were undeniably good, or even indispensable, for healthy living and for a good level of fitness. Similarly, as the applicant submits, in paragraph 213 of the contested decision, the Fifth Board of Appeal set out specific considerations as regards milk or dairy products, cereals or different kinds of non-alcoholic beverages, which contain proteins and fibres, are often enriched with vitamins and trace elements, and thereby are intended to provide a nutritional intake with the aim of preserving a healthy physical and also mental state.

143 As regards, first, the merits of the contested decision, it must be stated that the considerations of that decision, reproduced in paragraph 142 above, cannot be read in isolation, but must be read in the light of the other assessments set out in that decision. Thus, in paragraph 173 of the contested decision, the Fifth Board of Appeal stated that it was apparent from the evidence that the term ‘fitness’ was used in relation to the intake of foodstuffs which did not contain certain unhealthy ingredients in excessive quantities, had nutritional qualities and were low in calories or fats. Similarly, in paragraph 207 of that decision, it was found that the term ‘fitness’ served directly to designate the quality and healthy ingredients of the goods in Classes 29, 30 and 32. It must be held that those considerations also apply to foodstuffs which are not inherently good and healthy or which are processed, such as those mentioned by the applicant, namely substitutes for dairy products, jellies, flavoured water or other processed beverages. Those goods may contain quality ingredients or, conversely, may not contain certain unhealthy ingredients in excessive quantities.

144 In addition, in paragraph 195 of the contested decision, the Fifth Board of Appeal found that, upon seeing the term ‘fitness’ on the goods covered by the contested mark, consumers would conclude that those goods were especially formulated to promote health or that they were natural or organic foodstuffs and beverages free from additives, and that their consumption, along with other lifestyle changes, such as sufficient exercise, would lead to improved physical fitness or better health. It should be noted that, in so doing, the Fifth Board of Appeal found, in essence, that the affixing of the contested mark to the goods at issue was likely to be perceived by the relevant public as indicating that those goods might have certain nutritional qualities contributing to achieving, maintaining or improving physical fitness or good health. Since that is the perception of the relevant public which, in accordance with the case-law cited in paragraph 90 above, is decisive in the present case, it is irrelevant that certain goods such as those referred to by the applicant are not healthy or beneficial to health. On account of the presence of the term ‘fitness’ on those goods, the public might believe that those goods have certain nutritional qualities which may contribute to improving physical fitness or good health, as EUIPO and the intervener in essence submit.

145 It follows that the Fifth Board of Appeal did not err in its assessment of the various characteristics of the goods at issue.

146 Second, it is necessary to examine the claim that the statements of the Fifth Board of Appeal in paragraphs 188 to 191 and 213 of the contested decision are not apparent from the parties’ pleadings in breach of Article 95(1) of Regulation 2017/1001 and, if they are based on well-known facts, that Board of Appeal infringed Article 94(1) of that regulation in so far as the parties did not have the opportunity to comment on those well-known facts.

147 Given that paragraphs 188 to 191 and 213 of the contested decision do not contain any references to the parties’ pleadings, the considerations set out therein relating to the various nutritional qualities of certain foodstuffs necessarily come from well-known facts, as EUIPO moreover acknowledged.

148 In that regard, it is apparent from settled case-law that, first, the bodies of EUIPO may base their decisions on well-known facts which have not been relied on before them, without having to establish their accuracy (see judgment of 10 September 2019, Oakley v EUIPO – Xuebo Ye (Representation of a discontinuous ellipse) , T‑744/18, not published, EU:T:2019:568, paragraphs 57 and 58 and the case-law cited), and that, second, an applicant against whom EUIPO relies on such well-known facts is in a position to challenge in detail their accuracy before the Court (see judgment of 9 July 2025, AirPlus International v EUIPO – Alpian (+a) , T‑407/24, not published, EU:T:2025:685, paragraph 29 and the case-law cited).

149 In the present case, the applicant has not provided evidence in support of its challenge. Similarly, in any event, its claims as to the merits of the findings of the Fifth Board of Appeal relating to the assessment of the various characteristics of the goods at issue have already been rejected (see paragraph 145 above). In those circumstances, the present complaint must be rejected.

150 In the second place, as regards the statement of reasons for the assessment of the descriptive character of the contested mark for the goods at issue, it must be borne in mind that, according to the case-law, where the same ground for refusal is given for a category or group of goods or services, the competent authority may use only general reasoning for all the goods or services concerned. However, such a power extends only to goods and services which are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogeneous category or group of goods or services (see judgment of 17 May 2017, EUIPO v Deluxe Entertainment Services Group , C‑437/15 P, EU:C:2017:380, paragraphs 30 and 31 and the case-law cited).

151 In the present case, the Fifth Board of Appeal found that the term ‘fitness’ would be used to describe certain qualities of all kinds of foodstuffs, as well as their intended purpose to allow the achievement or preservation of a healthy and good physical shape. Similarly, it stated, inter alia, that the goods covered by the contested mark were intended to provide a nutritional intake with the aim of preserving a healthy physical and also mental state. It must be stated that the Fifth Board of Appeal identified a common characteristic which, in accordance with the case-law cited in paragraph 150 above, enabled it to put forward general reasoning. It follows that the Board of Appeal gave reasons to the requisite legal standard for its assessment that the descriptive character of the contested mark applied to all of the goods at issue.

152 Accordingly, the applicant’s complaint must be rejected as unfounded.

153 Having regard to all of the foregoing, the present plea in law must be rejected and the action must be dismissed in its entirety.

IV. Costs

154 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

155 It is true that the applicant has been unsuccessful in the present case. However, since the intervener has not applied for costs and EUIPO has applied for the applicant to be ordered to pay the costs only in the event that the parties are summoned to attend a hearing, it is appropriate, in the absence of such a hearing, to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1. Dismisses the action;

2. Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 16 September 2026.

* Language of the case: English.