In a case relating to heart shaped tomatoes, OHIM’s Board of Appeal issued a decision (1) that living organisms, such as a plant or its fruit, do not fall under the definition of a Community Design. This decision issued in 2013 but has only recently been reported.
In 2011, Dutch plant breeder A.C.J Ammerlan filed an application to register a design for a heart shaped tomato. The examining division refused the application on the grounds that it did not comply with the definition of a design under Articles 3(a) and 3(b) of the Community Design Regulation, in that a living organism was not an industrial or handicraft item. In Article 3(a) a “design” is defined as being the appearance of the whole or a part of a product (…), whilst in Article 3(b) a “product” is defined as being “any industrial or handicraft item (…)”.
Ammerlaan appealed the decision arguing, inter alia, that the tomatoes can be regarded as handicraft items as they are produced in a work-intensive process which results in them having the same unique shape. Ammerlaan also argued that rejecting the design application would result in technological developments in the agricultural sector being disregarded.
The Board though followed the approach of the examining division that living organisms are not “industrial or handicraft items”. The Board concluded that a design which discloses the appearance of a tomato in its natural state, will, in principle, have to be refused and that even if the shape at issue deviates from that of a common tomato there is nothing to suggest that the shape is the result of industrial or manual processing and not of a special plant variety. The Board also held that even if it were true that the appearance of the tomato is unique, this did make contested design application an industrial or handicraft item.
(1) OHIM Appeal Decision, 18/2/2-123, Case R 595/2012-3 reported in OHIM’s Alicante Newsletter January 2014.
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