The ECJ War of Fruits - Apple Inc. vs Pear Technologies Ltd.

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.