Style is what everyone hopes to have when it comes to clothing and bags. But is “FREE STYLE” descriptive in that context?

El Corte Ingles, the well-known Spanish department store chain, obtained an EU trade mark registration for the stylised FREE STYLE mark shown above, covering clothing and footwear (Class 25) and bags and leather goods (Class 18). The German company Elho attacked the registration, applying to have it declared invalid on the basis of being descriptive.

The EUIPO Cancellation Division did not agree with Elho and rejected their invalidity claim. The Board of Appeal upheld Elho’s appeal and declared the FREE STYLE registration invalid. El Corte Ingles appealed this and we now have the decision of the General Court.

El Corte Ingles argued first that the mark is a figurative mark in an orange colour and should therefore not be considered to be exclusively composed of descriptive elements. The Board of Appeal found that this was not a relevant factor, given that the words FREE STYLE stand out very clearly.

El Corte Ingles’ better argument was that “free style” does not have any direct meaning in relation to clothing and bags. The words did not refer to anything in particular, other than the literal meaning of a style where there is freedom of choice in a particular context, generally sport or art. There was a wide range of activities which have a “freestyle” version and the term is too vague for consumers to be able to make a connection between the words and the goods in question.

On this central point, according to the General Court, “free style” in relation to clothing and bags means a style which is casual, trendy or unconventional, not bound by the “prevailing rules of fashion”. This meaning would be understood by consumers and was sufficiently direct to mean that the term was in fact descriptive. In other words, the General Court confirmed the mark as invalid.

A black and white case or more a shade of grey?

Case Ref: T-212/16 and T-213/16