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In the judgment under appeal, the General Court summarised the factual background to the dispute before it as follows: ‘1 On 20 November 2001, the intervener, [Société des produits Nestlé], filed an application for registration of an EU trade mark with [EUIPO] pursuant to [Regulation No 207/2009]. 2 Registration as a mark was sought for the word sign FITNESS. 3 The goods in respect of which registration was sought are in Classes 29, 30 and 32 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description: – 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”. 4 On 30 May 2005, the mark applied for was registered as an EU trade mark under number 2470326 in respect of the goods referred to in paragraph 3 above (“the contested mark”). 5 On 2 September 2011, the applicant, [European Food], filed an application for a declaration that the contested mark was invalid under Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 7(1)(b) and (c) of that regulation. 6 On 18 October 2013, the Cancellation Division rejected the application for a declaration of invalidity in its entirety. 7 On 16 December 2013, the applicant filed a notice of appeal with EUIPO against the decision of the Cancellation Division. 8 By decision of 19 June 2015 (“the contested decision”), the Fourth Board of Appeal of EUIPO dismissed that appeal. 9 The Board of Appeal held that, in cancellation proceedings, the burden of proving that the contested mark was devoid of any distinctive character or was descriptive, for the purposes of Article 7(1)(b) and (c) of Regulation No 207/2009 lay on the cancellation applicant. It added that the relevant point in time to which the evidence had to refer was the date of filing of the contested mark, namely 20 November 2001. In addition, the Board of Appeal found that since the goods in question were low priced mass consumption goods, the attentiveness of the relevant public was below average. 10 As regards the alleged descriptiveness [of the contested mark], the Board of Appeal found that most of the evidence produced before the Cancellation Division post-dated the relevant point in time or concerned the territory of Romania before its accession to the European Union. As regards the copies from dictionaries concerning the term “fitness”, it found that that term did not designate an inherent characteristic of the goods concerned in the eyes of consumers in 2001. It considered that, in relation to the goods in question, that term was suggestive and “a vague evocation”. Therefore, according to the Board of Appeal, the evidence produced before the Cancellation Division was not sufficient to prove the descriptiveness of the contested mark. 11 Moreover, the Board of Appeal rejected as being belated, without taking it into consideration, some further evidence submitted for the first time before the Board of Appeal. It applied by analogy the third subparagraph of Rule 50(1) of [Regulation No 2868/95], read in conjunction with Rule 37(b)(iv) of that regulation. 12 The Board of Appeal also found that since the term “fitness” had an evocative and ambiguous content, it was capable of identifying the goods covered by the contested mark as coming from the intervener and therefore of distinguishing them from those of other undertakings. Therefore, it concluded that the applicant had not established that that mark lacked distinctive character.’