Would you prefer an Apple or a
Pear? No, this discussion is not bound to remain confined between the walls of
a grocery store, but may be heard also in a tech shop.
And, if Apple hoped until
recently that an IP suit will succeed to stop that odd conversation from
happening in the future, the ECJ might have just ruined their hopes, in a thunderbolt
decision that just stated that apples are different from pears (rocket science,
yes).
The ECJ states that: ”In those circumstances, it is inconceivable
that the relevant public displaying a high level of attention will use the term
‘fruit’ instead of ‘pear’ or ‘apple’ when referring to the conflicting marks.”
What might have escaped the
ECJ’s notice is, (to paraphrase a character from J.K.Rowling’s bestseller, Harry
Potter), is precisely that fame is
everything indeed when it comes to trademarks (well, McDonalds may have a
different opinion here, but that’s another discussion that you may find here).
However, the story is not at
all brand new. Once upon a time, there was a bunch of creative engineers who
designed a system for medical imagery, named OsiriX (quite creative, I would
say, to combine the ideas of the Egyptian god and the medical imagery). The
software grew up in one year like others in ten and it gradually developed a
version that was no longer open source.
This was the moment when some
other guys continued to develop basically the same software with the same
graphics and main functionalities, while naming it… completely unrelatedly, of
course, Horos, who is, no one else that another Egyptian god, son of Osiris.
Despite the over-simplified manner of presenting this story, that is far more
complex than that, the idea is that the two software providers had, as
expected, a love-hate relationship and nowadays, they share the same market,
more or less peacefully (as you can see here https://www.purview.net/blog/horos-v.-osirix-whats-the-difference
).
Could this be the case for the
Apple – Pear reinterpretation of the War of Fruits? If you ask me, only in
appearance. Because the two software providers have both contributed to the
development of the software, at least until a certain point. There was a
conceptual quarrel out there, and the name is thought to have been chosen that
way to sanction somehow a deviation from the credo of the initial project.However, things are different
here. Yes, maybe apple and pear are not similar by themselves, but one cannot
say that choosing a fruit as a trademark for electronics is quite a random
decision, particularly when, guess what! there is another fruit used as
trademark, also for electronics – and quite successfully, I would say.
The
ECJ launches afterwards in a discussion where it speaks about an analysis of the commonalities presented
by the actual ‘pear’ and ‘apple’ products, followed by an excursus in the Rosaceae and subpoemiaedae family of fruits (I’ve lost you, haven’t I?). While
reading the ECJ’s decision, I remembered the joke with the old lady that asks
for an acetylsalicylic acid in a drug store, because she forgot the banal name
of aspirin.
The
arguments of the ECJ are glorious in their lack of substance, as the
argumentation does not bring any serious elements, but for the blatantly
obvious distinction between the two subjects of the debate - pears and apples are two fruits which are
closely related in a biological sense. Really?!
I am
definitely certain that when one is tempted to buy either an Apple or a
(potentially cheaper version) Pear, they do not have in mind the biological
perspective in any way.Therefore,
a very thorough analysis of the comparison between apple and pear is in my
opinion, useless. I don’t assume there is someone believing that apples and
pears are visually similar. At least, not someone aged more than 3. Consequently, the battle should have been
moved more on the conceptual battlefield.
And
here, we see that ECJ also ruled that „The
Board of Appeal also noted that the conflicting marks differed in that the mark
applied for contained the word ‘pear’, did not represent a fruit which had a
bite taken out of it and contained several black rectangular shapes inside the
figurative element.” Of
course, it is widely known that Apple’s apple would not be the same without the
bite taken out of it, but the bite is only one element that contributes to the
global distinctiveness of Apple’s trademark. A survey asking consumers what is
more representative for Apple, the apple itself or the bite taken out of it may
reveal surprising conclusions.
In
Sabel, the Court ruled that a puma and a cheetah are conceptually similar. The
ECJ seems to stick to the theoretical principle according to which „ it should be recalled that, according to
the case-law, the existence of a conceptual similarity stems from the fact that
both marks use images with a similar semantic content”. But after this
correct premise, the ECJ seems to jump to an artificial and inconspicuous conclusion
- “it
should be observed that the conceptual similarity between the signs concerned
in the abovementioned case was based, according to the referring court, on the fact
that both were using the image of a ‘bounding feline’ and therefore was not
based on the fact that pumas and cheetahs shared several characteristics in
real life”.
Are we likely to assist to an apple
– pear coexistence on the market? Theoretically, yes. Practically, it’s hard to
believe that they target the same consumers. Elements such as price, quality,
technical features and like I was just
saying, targeted consumers are of a crucial importance and it is difficult to
predict whether this will actually become a matter of interest in terms of
sales and figures, but it will definitely be a supplementary inquiry for the
American tech giant, a pear in the apple, to paraphrase a common idiom.
Well,
I might not be convinced at all of the ECJ’s judgment on the merits of the case
– but there is still one thing that will remain deeply engraved in my mind
after this caselaw – that pears and apples are closely related in a biological
sense.
The
story seems to close with `to be continued` rather than with `the end`, as it
is still debatable if we shall witness a fruit salad or a bloody war of
fruits.
