Trademarks: for the European Court of Justice a "Pear" is not an "Apple"

Rejected Apple's requests and denied there is similarity 27 February 2019

It’s all about trademarks, and in particular the controversy in which a company registered in Macao – Pear Technologies Ltd (Pear) – has defended its figurative trademark depicting a stylized pear against the colossus from Cupertino - Apple Inc. (Apple) and its well-known figurative trademark “The Apple”.

The European Court of Justice has rejected Apple's requests and denied there is a “similarity between Pear and Apple” in the ruling T-215/17.

The opposition was upheld in the two EUIPO levels of opposition, pursuant to Article 8 paragraph 5 of the EU Trademark Regulation 2017/1000 which states:
“Upon opposition by the proprietor of a registered earlier trademark within the meaning of paragraph 2, the trademark applied for shall not be registered where it is identical with, or similar to an earlier trademark, irrespective of whether the goods or services for which registration is requested are identical, similar or not similar to those for which the earlier trademark is registered, if, in the case of an earlier EU trademark, the latter is the trademark having a reputation in the Union or, in the case of an earlier national trademark, the latter is the trademark which has a reputation in the Member State in question and the use without due cause of the registered trademark would take unfair advantage of the distinctive character or the repute of the earlier trademark or adversely affect the earlier trademark.

Pear filed an appeal at the European Court of Justice which – on January 31, 2019 – upheld its requests by cancelling the previous decisions, citing a series of reasons; among these the most relevant one concerns the satisfaction of the conditions expressed by the article cited above. The focal point was the evaluation as to whether Pear was similar to Apple.

Why are they dissimilar? Here are the main reasons.
According to European trademark jurisprudence, similarity is assessed by extensively analyzing the visual, phonetic and conceptual similarity, thus achieving an overall evaluation.
Unlike what was sustained in the two levels of opposition before EUIPO, the European Court of Justice decided that the trademarks in question are visually dissimilar because: while Apple’s apple can be described by its composition with the shape of an apple - depicted rounded and with a smooth surface - the same cannot be said for the Pear. Indeed, the Pear consists of a large number of squares – combined with each other with different sizes - which implicitly form a pear shape in the mind of the observer. Above all, the positioning of the stem of the Pear and the leaf of the Apple are very different in terms of both shape, size and positioning. Finally, the presence of the word “The Pear” represents a clear difference.

What are the elements of similarity?
According to the EU Court of Justice, the only visual references between Apple and Pear are chromatic, that is, the presence of black, and the similar positioning of the figurative elements located in the upper part of the respective fruits, both of which, however, will probably pass unnoticed by the public.

The Court's disagreement on the previous rulings of the EUIPO
The EU Court of Justice made multiple points in disagreement with EUIPO’s previous positions, including both visual and conceptual evaluations, and concluded that Apple and Pear are dissimilar from each other and that no similarity emerges and therefore no likelihood of confusion in the minds of consumers. In fact, for the Court, consumers will never be confused in the purchase of a Pear product, believing they are buying an APPLE product. One element of curiosity observed by the Court to refute what was previously sustained: in different European Union languages apples and pears are used in proverbs to demonstrate that two things are different and not comparable.


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