In 2013, Pink Lady America LLP filed an application with the European Union Intellectual Property Office (EUIPO) to register a Community word trademark “Wild Pink” and, analogously, a figurative trademark, to be used for apples produced by the company, in particular those of the Cripps Pink variety. At the time, no one expected that this move would cause such a stir among competitors in the fruit production industry, especially in the apple sector.
This registration was particularly unwelcome to the Australian company Apple and Pear Australia Ltd. and its licensee in the European Union, Star Fruits Diffusion. This is because the company holds the trademark rights for “Pink Lady,” which specifically relates to the Cripps Pink apple variety and is associated with that name in the market.
As one might easily guess, Apple and Pear Australia Ltd. filed oppositions with the EUIPO regarding the registration of the disputed trademarks. This marked the beginning of a dispute that lasted for over 10 years. In the course of proceedings before various instances, the opposition was dismissed, only for the Court of the European Union to overturn the decisions and order a re-examination of the case. The basis of the oppositions was the argument that the registration of such forms of the “Wild Pink” trademark could mislead consumers as to the origin of the fruits bearing that mark, and could also suggest a connection between the companies.
After the case was referred for a new review based on a broader body of evidence and a comprehensive examination of the entire dispute, taking into account the arguments of each party, a final decision was finally reached. Importantly, the EUIPO issued a ruling not only regarding the verbal trademark “Wild Pink,” but also the graphic trademark.
In decisions dated April 25, 2024, the EUIPO dismissed the oppositions against both types of the disputed trademark. Above all, it was emphasized that despite the reputation of the earlier “Pink Lady” trademarks, the similarity in the non-distinctive verbal element “Pink” and the low degree of overall similarity are insufficient to make consumers, even if they exhibit a low degree of attention, perceive that even identical goods bearing the disputed marks originate from the same or economically related undertakings. Importantly, the word “pink” itself is descriptive in nature, so it does not, in itself, constitute a significant, original element that would distinguish one mark from another.
Thus, the decision is favorable for Pink Lady America LLP, but does this end the dispute? We will find out in the coming months, as the possibility of appeal remains open.
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