Comparing Apples to PearsAugust 31, 2020

Earlier this year, Apple, the holders of one of the strongest and most recognizable trademarks in the world, filed an opposition on the last day possible to a trademark application filed by Super Healthy Kids.

Super Healthy Kids is a small business, currently only having around five employees, and created an iOS and Android application for recipe plans, shopping lists, and meal organization called Prepear. Their logo for Prepear is a cartoon pear outline, with a slight lean, and a leaf, but no bite taken out.

Prepear has reported that due to the extra cost of the opposition, they have had to let one team member go and started a petition on change.org to try to convince Apple to stop the opposition before the discovery step and picking on small business owners. The petition as of August 25, 2020 has nearly garnered its goal of 300,000 signatures in only 10 days.

However, that rather begs the question, why would any company like Apple risk tarnishing their own goodwill by opposing a small business? Apple has even lost an apple to pear comparison case in Europe where it was held that an apple is not comparable to a pear. There was also a 2011 report to Congress related to the possible abuse by big business against small business concerning trademarks.

In the United States a trademark holder has an affirmative duty to police not only their trademark, but similar trademarks as well. Further, this duty only increases as the recognition of the trademark increases. If a holder fails to police, they may lose the right to enforce against similar marks later. For example, some varieties of pears look very similar to apples due to their more rounded shape, so if Apple doesn’t at least show they are policing against all pears, then they may lose their right to object to a pear with a more similar appearance to an apple. Therefore, large companies with easy to recognize trademarks, like Apple and Coca Cola, have an obligation under U.S. law to be very vigorous in the protection of their trademarks. Even if small businesses get caught up in the fight.

Oliver Couture, Ph.D. is an Associate Attorney in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our  MVS website, or contact Oliver directly via email .

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