By heart

appleEver eaten an apple in the shape of a heart? Yes, it looks different and strange at first, but on the other hand, it is quite remarkable!

There was already a trend going on in the fruit sector: the branding of fresh food has become increasingly important (think of the different apples who are now sold under trademarks like Kanzi and Pink Lady). The newest trend is that the shape of fruit or vegetables itself functions as a distinctive feature.

This apple has been filed as a three-dimensional mark in the European Union. From case-law we already knew that heart-shaped tomatoes could not be the subject of a valid design.  A living organism is not a product, i.e. a manufactured or industrial made thing.

But what about a trademark? A three-dimensional mark must be distinctive, so it must be significantly different from what already exists in the market. This should not be a problem for this apple. But there are other requirements that apply to a three-dimensional marks. For example, the shape of the product must not be necessary to reach a technical effect. And, the shape must not add a significant value to the product. And the latter might be a problem, as probably the shape is one big selling factor.

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Arnaud Bos

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