With a recent judgement, the EU General Court ruled on the matter of visual and conceptual similarity between signs and, overturning EUIPO’s decision, found that the well-known Apple trademark and the Pear trademark (shown below) cannot be confused.

The dispute arose from Apple Inc’s opposition to the application for registration of the EU figurative trademark ‘Pear’, filed by the company Pear Technologies Ltd. Following the upholding of the opposition, Pear Technologies appealed before the EUIPO Board of Appeal which, however, confirmed the first decision. Consequently, the company appealed the Board of Appeal decision before the EU General Court that, with the judgement discussed, found that two signs cannot not be deemed similar, whether compared from a visual or conceptual point of view.

In fact, under the first point of view the Judge observed that the appellant’s trademark consists of a mosaic of rounded black squares detached from each other and depicting the shape of a pear with a stem, as well as the grey word ‘Pear’ below. On the other hand, the Apple trademark looks like a solid silhouette of a bitten apple, with a leaf at the top right.

On these same basis, the EUIPO Board of Appeal had found a ”remote” similarity between the two, as both consisted of rounded silhouettes of a fruit with the related stem/leaf in the same position, and because the word element of the Pear trademark, with a faded colour and positioned at the bottom, could not be considered a significant detail and was not therefore suitable to distinguish the signs.

Based on the assumption that the visual comparison between trademarks must be based on the general impression aroused by each of them while the relevant details can only be taken into consideration secondarily, the EU General Court came to very different conclusions. Firstly, the Judge observed that the two signs are visually very different: in fact, they represent two different fruits and one (the Apple trademark) consists of a solid form, while the other (the Pear trademark) is a mosaic of separate objects. Moreover, the element at the top right represents in one case a leaf (Apple) and in the other a stem (Pear). Lastly, the word element of the Pear trademark cannot be underappreciated, as it has relevant dimensions compared to the pear, has a different colour, a peculiar font and is in capital letters. Ultimately, according to the EU General Court, the Board of Appeal had made an abstract and inaccurate assessment, due to the influence of the reputation of the Apple trademark’s which it considered allusively and mockingly recalled by the Pear trademark, and likely to lead the consumer to establish a link between the two. The Court instead underlined that, on the one hand, the reputation of the earlier trademark has no importance in a similarity judgement, and, on the other, it cannot make the two signs in any way visually similar.

The Court overturned EUIPO’s conclusions also under the second point of view, pointing out that conceptual similarity occurs only when two signs – irrespective of a possible visual affinity – use images with a similar/identical semantic content.

In the case at issue, EUIPO had found that the two trademarks represented two different fruits, though closely related in a biological sense (for their origins, sizes, colours and texture), so as to be often associated together in many ways and considered as alternatives. In other words, the “pear” concept could have been associated with the “apple” concept evoked by the earlier trademark, by means of the reference to the idea of ​​”fruit”.

In this regard, the EU General Court observed instead that the disputed signs evoke the idea of ​​a specific fruit, while the reference to the general concept of “fruit” is only secondary. Secondly, in several member States, apples and pears are used in proverbs as examples of different rather than comparable things, and the possible similarity in their sizes, colours or pattern (which they also share with many other fruits) can be perceived by the public only in the context of a very detailed analysis, not to mention that the consumer is unlikely to be aware of the fact that these fruits originate from the same family of plants.

On these considerations, the EU General Court therefore reversed EUIPO’s decision. The appeal proceeding against the judgement is currently pending before the EU Court of Justice (C 295/19 P).