In judgment T-448/13, Bora Creations, SL (Spain) had registered Essence for the following goods: ‘Hair colorants and hair tinters, soaps, perfumery, essential oils, cosmetics, hair lotions, preparations for cleaning, care and beautification of the skin, scalp and hair, decorative cosmetics, false eyelashes, nail care products (included in Class 3), varnishes, nail varnish removers, products for modelling and making false fingernails (included in Class 3)

Beauté Prestige International brought an Action for invalidity which was rejected by the Cancellation division. However, the Fifth Board of Appeal partially annulled the decision of the Cancellation Division by declaring the invalidity of the mark for ‘hair colorants and hair tinters, soaps, perfumery, essential oils, cosmetics, hair lotions, preparations for cleaning, care and beautification of the skin, scalp and hair, decorative cosmetics, nail varnishes, nail varnish removers and nail care products’ included in Class 3.

By contrast, the Board of Appeal dismissed the appeal and declared the mark valid in respect of ‘false eyelashes’, and ‘products for modelling and making false fingernails’ included in Class 3.

The word ‘essence’, which is not rare or unusual, refers to plant extracts which can be used as a scent or perfume and can also refer to a concentrate of such an extract. As such, this word gives a clear and unequivocal message relating to an attribute of cosmetic products.

Next,   many of the goods could in fact be described by the word ‘essence’ so the mark at issue was purely descriptive in respect of the goods concerned, and it was not capable of identifying the origin of those goods. Accordingly, he mark at issue had been registered in breach of Article 7(1)( b) and (c) of CTMR.

The General Court dismissed the appeal.