How to A-Peel a Banana

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.

Shane Smyth

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).