GCEU decision in Case T-1072/23 on Nike’s SUPPORT-FIT EU trade mark application

On 23 October, the GCEU ruled in case T-1072/23 on a dispute concerning the EU trade mark SUPPORT-FIT owned by the US company Nike Innovate CV. 

In 2022, Nike applied to the European Union Intellectual Property Office (EUIPO) to register the EU mark SUPPORT-FIT as a word mark for footwear, clothing and headgear, all in Class 25 of the Nice Classification. However, the examiner rejected the application for all goods except those in the headgear category, considering that the mark lacked distinctiveness and was descriptive of the goods in question. 

Nike appealed the examiner's decision to the EUIPO’s Board of Appeal. However, the Board dismissed the appeal on the ground that the mark would be perceived as descriptive of the goods, in particular in relation to their function of supporting a part of the body. As a result, the Board also concluded that the mark was both descriptive under Article 7(1)(c) and devoid of any distinctive character under Article 7(1)(b) of the EUTMR, with regard to the goods in question.

Nike appealed the decision to the GCEU, which had to determine whether the mark was descriptive and lacked distinctiveness. The Court upheld the decision of the EUIPO’s  Board of Appeal to refuse registration of the mark "SUPPORT-FIT". The Court concluded that the term 'support' refers to items that provide support and 'fit' refers to the suitability of a clothing item, leading the relevant public (an English-speaking public with a moderate level of attention) to perceive the mark as a direct description of the intrinsic characteristics of the goods, which are to provide support and fit well to the body during physical activity. Although Nike claimed that the mark was an invented term that did not exist on the market, the Court stated that despite the fact that the term was not found in a dictionary or was grammatically incorrect, it did not prevent the public from perceiving it as clear and direct information about the products, thereby justifying the refusal of registration under Article 7(1)(c) of the EUTMR. Since the Court considered that the descriptiveness of the mark was sufficient to reject the application, it did not examine the second ground relating to lack of distinctiveness.