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Are pears and apples comparable?

March 24, 2020

The saying “comparing apples and oranges” or the Spanish version “comparing pears and apples”, which applies better in this case, is used to refer to two things that are easily distinguished and not comparable.

Comparing pears and apples is precisely what the General Court of the European Union had to do (case T-2019/45) in a long dispute between the American giant APPLE INC (APPLE) and the Chinese company PEAR TECNOLOGIES LTD (PEAR) which attempted to register the following sign as a European Union trademark to protect, among other products, computers, mobile phones and tablets:

peach

As expected, APPLE filed an opposition against the registration on the basis of its well-known trademark:

apple

The European Intellectual Property Office (EUIPO) rejected the trademark, assessing the existence of some visual and conceptual similarity between the signs in a way that consumers would establish a link between the new trademark application and APPLE’s trademark, which would entail a risk of taking advantage of its reputation. However, the General Court upheld PEAR’s appeal and, reversing EUIPO’s decision, granted the trademark.

DECISION OF THE GENERAL COURT OF THE EU

The General Court reversed the decision of the EUIPO Board of Appeal, considering, unlike the Office, that the trademarks are not visually or conceptually similar. The Court considered that visually they are different fruits: a pear represented by squares of different sizes without borders and a solid apple with a bite. Conceptually, the Court notes that the two trademarks represent different fruits; that the fact that they are biologically similar is not relevant as it implies an abstract and prior knowledge of the consumers and that it is not relevant that they belong to a wider category (fruit).

The Court points out that it is true that in several countries of the European Union apples and pears are used in sayings or proverbs to illustrate that two things are different and not comparable, but that this would not indicate that there is similarity but, on the contrary, they are not conceptually similar.

Apple appealed to the Court of Justice of the European Union which, by its decision of 31 October 2019 (C 295/19 P), dismissed the appeal and upheld the decision of the General Court.

COMMENTS

The dismissal of APPLE’s appeal means that the trademark  was granted to PEAR to distinguish products which are in direct competition with APPLE and confirms the saying that pears and apples are different and not comparable.

The Court recalls that no matter how well-known your trademark may be, the condition of similarity between the trademarks in question is a necessary precondition irrespective of the reputation of the trademark.

Article by Ricardo Guerras.

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