The Board of Appeal of the European Union Intellectual Property Office upheld an earlier decision on January 16, 2017, that the trademark Wild Pink™ does not create confusion with the Pink Lady™ trademark. “A short visit to any local fruit market is sufficient to see that apples exist in many shades of red, including pink”.
The Board of Appeal confirmed that “pink” is devoid of distinctive character with regards to apples. Additionally, the Board of Appeal remarked that there is a conceptual difference between Pink Lady™, where “pink” is an adjective and “Wild Pink™” where the term “pink” is a substantive.
APAL, Apple and Pear Australia Limited, and Star Fruits, have time to appeal the decision before European courts, as they did unsuccessfully with regards to another similar decision regarding the “English Pink” European trademark. The marks’ only similarity is the word “pink”, which is also included in the apple variety name ”Cripps Pink” and therefore considered descriptive.
Additionally, in response to APAL’s attack on the Wild Pink trademark, Pink Lady America filed an action with the Community Plant Variety Office (CPVO) to annul the Cripps Pink tree variety based on “lack of novelty”. It is a well-known fact that Cripps Pink has been sold under the Pink Lady name in Australia well before 1989.
In September 2016 a decision by the CPVO committee was made that acknowledged the commercial activity; however, it determined the activity was not detrimental to the novelty of the variety. An appeal has been lodged with the CPVO board in January 2017, based on the documentation of unrestricted commercial activity in Australia with regards to the Pink Lady apple tree.
A retroactive invalidation of the Cripps Pink variety would have a big impact in Europe, where the Pink Lady™ is a center of the “club” formula.