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IP Law: A Pear is Not an Apple

Key aspects in trademark law are the element of similarity and likelihood of confusion. Recently, the General Court of the European Union ruled that apples and pears are not comparable. One would think this has been common knowledge for some time now (Case T‑215/17, Pear Technologies Ltd v European Union Intellectual Property Office).

The contested figurative mark in the form of a stylized PEAR was filed in July 2014 by the Chinese company Pear Technologies Ltd. (class 9, 35 and 42). Apple Inc. filed an opposition against that trademark registration in January 2015, relying on its own earlier and well-known Union figurative mark in the form of a bitten apple.

In this ruling the General Court decided that the reputation of the earlier trademark was not a relevant factor for assessing the similarity of the conflicting marks. The similarity was very slight. Apples and pears are literally not comparable, the marks in question would immediately be perceived as different fruits. The shapes of the figurative elements and the fruits depicted would also be altogether different (stylized squares of different size in the pear and the apple as a fixed image). The contested pear figurative mark also shows no trace of a bite.

Under Dutch Caribbean law, the elements of similarity and likelihood of confusion are also decisive in conflicting trademarks. Although for instance in Curaçao there is not the possibility to oppose a trademark registration, one can request the annulment of a trademark based on similarity, likelihood of confusion and unlawful use of a trademark.