Not all Nike trademarks fit the same, according to a European Union court. The EU’s General Court ruled on Wednesday that Nike’s “Support-Fit” trademark lacks distinctiveness and is descriptive of the goods in question (footwear and clothing), upholding an earlier refusal from the European Union Intellectual Property Office (“EUIPO”)’s Fourth Board of Appeal, which refused to register the mark for the same reasons. In furtherance of its bid for registration for the trademark, Nike – which has been looking to register the mark “Support-Fit” in the EU since July 2022 – argued that since the EUIPO had registered multiple of the company’s marks bearing similar phrases then this one should pass, too.
Nike appealed the Board’s decision to the EU’s General Court in November 2023, taking issue with the Board’s determination reasoning that the trademark lacked distinctiveness. According to Nike, “Support-Fit” is an “invented term” and the expression requires a consumer to make “an interpretative effort” to determine its meaning since “it is not found in a dictionary and is grammatically incorrect.” The Board – which was not persuaded by Nike’s argument on the basis that “the hyphen between the words … clearly illustrates that the word ‘support’ simply qualifies the word ‘fit’” – got it wrong, per Nike.
Additionally, the Beaverton, Oregon-based sportswear titan pointed to similar marks, such as “Therma-Fit,” “Storm-Fit,” “Dri-Fit,” “Exact Fit,” and “Springy Support,” among others, that have been registered in the EU, as further support for its quest for registration. But the General Court did not buy the company’s reasoning, stating that the Board’s rejection could not be invalidated based on the fact that earlier, similar marks had passed EUIPO scrutiny.
The court signed off on the Board’s earlier determination that not only are Nike’s examples of similar, “Fit”-centric marks “not comparable,” as they feature “a brand name, a suggestive word, a misspelling, or an abbreviation,” but it also held that the Board could not base its decisions on previous regulatory practice or decisions made by lower-ranking EUIPO agencies.
Still yet, addressing Nike’s “invented term” argument, the General Court held that Nike’s Support-Fit label “is a simple combination of two English terms, which will be easily understood by the public to describe an article of clothing that ‘fits and supports a specific part of the body.’” And since the products at issue are footwear, sportswear and leisurewear, the court stated that “the support that those goods can provide relates to their practical purpose.” The mark simply conveys “specific information about the characteristics of the goods.” As such, the court held that the Board was correct to find that Nike’s Support-Fit mark “would be immediately perceived, and without further thought, as a description of the goods at issue.”
With the foregoing in mind, the General Court dismissed Nike’s appeal with regard to footwear and clothing. Not a total loss for Nike, though, the court held that the mark could still be registered for hats and other headwear.
The case is Nike Innovate CV v. EUIPO, T-1072/23, (EU General Court).
Share
