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Apple can’t be compared to pears

February 2019. Apple has been told it can’t compare apples to pears. The ruling was served up to the electronics giant by the European General Court on 31 January, when after four years of struggle, Apple finally lost its opposition against Chinese software company Pear Technology. This leaves the way clear for the Chinese to register their pear logo with the word ‘Pear’ as a trademark for mobile phones and tablets in the European Union.

Opposition

When Pear Technology applied for an EU trademark for its pear logo at the end of 2014, Apple immediately filed an opposition on the grounds that the pear was too similar to its own worldwide famous apple logo.

Infringement

In 2016, the European Trademark Office initially found in Apple’s favour. This decision was confirmed by the EUIPO Board of Appeal a year later when it concluded that the pear logo was too close in appearance to that of the famous Apple and that it would take unfair advantage of the distinctive character or the repute of the Apple mark. The pear was consequently refused trademark registration.

Appeal

The Chinese, however, refused to give up and took their case to the European General Court, which finally found in their favour. Unlike EUIPO and its Board of Appeal, the Court decided that the two logos weren’t in fact similar enough to constitute an infringement. Verdict: the Chinese can go ahead with their registration.

Bizarre

This must seem a pretty bizarre piece of theatre to marketeers: dozens of lawyers, attorneys and judges scratching their heads for four years over whether a pear does or doesn’t resemble Apple’s apple. You’d also love to know how much this whole circus costs. After four years the General Court, consisting of a three-judge bench, finally issues a decisive ruling: in an analysis running to 17 pages, it concludes that ultimately an apple really isn’t the same as a pear.

Uncertainty

For a trademark attorney it is both fascinating and enjoyable to follow all the ins and outs of a case like this. In our view the Court maybe should have stopped the Chinese because in this design of a pear with its stem on top (inclined towards the right, like the leaf in Apple logo), does establish a link between this pear and the world-famous apple.

But all that’s perhaps now academic. More interesting is whether it is desirable in practice that such an apparently simple question should take as much as four years to receive an answer. It certainly won’t have helped the commercial plans of Pear Technology, who have had to endure years of uncertainty over their trademark introduction. But now at long last they can get going.

Bas Kist