The General court ruled in case T‑476/15 where Société des produits Nestlé SA tried to register a trademark FITNESS for the following goods:
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’.
This mark had been refused by OHIM. After that the applicant submited additional evidences but the Board of Appeal refused them as belated.
According to the court, the Board of Appeal erred with this decision because Article 76 of EUTMR, read in conjunction with Rule 37(b)(iv) of the IR, does not imply that evidence submitted for the first time before the Boards must be regarded as belated by the BOA in invalidity proceedings based on an absolute ground for refusal.
Source: Marques Class 46.