Imitation is not always flattering
15th September 2021
FRKelly represents FYFFES in Intellectual Property matters and are the global custodian of their Trade Mark portfolio. You will be familiar with the primary Trade Mark:
However, FYFFES also have a range of additional Trade Marks including this:
Chiquita sought revocation (before EUIPO) of an EUTM – HOYA Label claiming non-use and appealed when they received an adverse decision from the Cancellation Division.
The Second board of Appeal (R0962/2019-5 decision dated 7 February 2020) rejected the appeal and held that there was a genuine use in the European Union in relation to “pineapples, bananas and plantains”.
There are many interesting aspects to this decision, including how the Board of Appeal make a global assessment of the relevant factors in determining whether use is sufficient to maintain or create a market share. There is also an answer to the age-old question: when is a banana a vegetable? (Answer below)
FRKelly are, of course, delighted with the expertise which they provided resulting in this appealing (excuse the pun!) decision.
Answer: When it’s a plantain –
“Although they look like bananas, they are green and cooked in a different way: they are considered to be vegetables.” (para. 90, R0962/2019-5).
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