Nike Loses the Most Recent Round of the EU Trademark Litigation

Published: June 14, 2024
Author: Fashion Value Chain

Nike is currently addressing the most recent wave of legal objections as part of its ongoing efforts to get trademark registrations for the phrase FOOTWEAR for use on equipment and software that could be related to shoes. Nike’s 2019 registration for the FOOTWEAR word mark was deemed invalid by the Board of Appeal for the European Union Intellectual Property Office (“EUIPO”) due to the mark’s “descriptive” nature when used in connection with the products and services mentioned in Nike’s registration.

The General Court’s decision is the result of invalidation procedures that Puma initiated when it requested a declaration of invalidity for Nike’s FOOTWEAR registration from the EUIPO in March 2020. Nike’s mark is “descriptive with regard to the goods and services at issue,” the EUIPO’s Fifth Board of Appeal ruled in January 2023, sided with Puma.

In support of its “descriptiveness” conclusion, the Board also determined that the “relevant public,” which included “average consumers and the professional public,” was likely to “perceive the sign FOOTWARE as meaning ‘footwear,'” with a level of attention that “could vary from average to high.”

Nike was not happy with the Board’s decision and on June 12 filed an appeal with the General Court. In a roundabout way, the General Court’s decision supported Puma and the EUIPO. Nike challenged the Board’s interpretation of “footwear” in their appeal for a number of reasons.

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