How Do You Like Them Apple (Trademarks)? Malus Musings on Brand Protection
Law & Legal

How Do You Like Them Apple (Trademarks)? Malus Musings on Brand Protection

With “spooky season” dominating October holiday talk, it’s easy to forget poor old National Apple Day or simply Apple Day, which took place last Saturday and is observed every October 21. According to Wikipedia, one can celebrate Apple Day in any number of ways, from “apple games in a garden to large village fairs with cookery demonstrations, games, apple identification, juice and cider, gardening advice, and the sale of many hundreds of apple varieties.” Those activities are all well and good – and I fully appreciate that “bobbing for apples” wasn’t listed because, let’s be honest, that’s really gross – but as we’re the Trademark & Copyright Law blog, allow me to focus on something a bit closer to home: apple trademarks. And by apple trademarks, I don’t mean that Apple, I mean the edible, round fruit produced by malus domestica – the apple tree.

Entirely separate from their mythical doctor-repelling properties, apples and I have enjoyed a lifelong friendship. One of my formative memories is of my grandfather, a produce distributor in St. Joe, MO, bringing me an apple – a Granny Smith, as far as I recall – almost as big as my head. My mom, herself an apple aficionado, made and continues to make all manner of apple-based snacks and desserts (there’s an unfortunate (for some) event in my past, spoken of only in hushed tones, referred to simply as “the apple strudel incident”). My mission, as soon as I step onto in any manner of fairground – even before braving the rickety, hastily assembled carnival rides! – is to locate and devour a caramel apple. The list goes on, and I won’t bore you further, but I especially love trying new apples, and it will perhaps not surprise those who know me that I keep a secret (yes, secret!) apple spreadsheet where I list their various characteristics and cultivar origins, along with a highly scientific rating system ranging from 1 (bad: e.g., poor, tasteless, modern Red Delicious) to 10 (wonderful: e.g., crisp, fresh Cortland).

But let’s talk trademarks. Did you know that some of the apple varieties you know and love aren’t generic names but instead are protected, registered, and frequently licensed brand names?  Here are a few brands associated with apples that have Josh’s Seal of Apple Approval™, all of which score at least an 8 on my secret spreadsheet:

  • PINK LADY®: this is the registered trademark for the Cripps Pink apple cultivar, owned by Brandt’s Fruit Trees, a Yakima, WA-based company also responsible for some other apple brands you may have encountered, including COSMIC CRISP® and LUCY®.  Cripps Pink apples date back to 1973, bred by John Cripps and resulting from a cross between a Lady Williams and a Golden Delicious.  My highly scientific tasting notes: “tart + sweet, super-crisp, but flavor rapidly declines as they ripen – an inconsistent 9/10.”

  • JAZZ®: a registered trademark of VentureFruit, a “variety management” company based in New Zealand, this is the brand name for the decidedly less cool cultivar name Scifresh (technically Scifresh T-273), a cross between the Braeburn and Royal Gala cultivars.  My highly scientific tasting notes: “tart but balanced flavor, unique shape, weirdly dense and crisp to the point that those with dental issues should not bite directly – 9/10.”

  • SweeTango®: a registered trademark of the Regents of the University of Minnesota, this is the brand name for the Minneiska cultivar, developed by university research breeders as a cross between Honeycrisp and Zestar (itself a trademark for the Minnewashta cultivar) apples, both of which were also developed by the university. My highly scientific tasting notes: “complex, more sweet than tart, includes clear notes of parent cultivars; 85% of flavor attributable to surprisingly snappy skin, with notes of tropical fruits; mildly unsettling – 8/10.”

It’s particularly interesting (to this trademark lawyer, at least) the extent to which some of these brand owners seem to go out of their way to not regularly use the generic cultivar name alongside the brand name, a bold strategy given the ever-present possibility of trademark misuse, or even a loss of valuable brands to dreaded genericide (we hardly knew ye, Escalator® brand moving stairway!). The current JAZZ® apple website, for instance, doesn’t appear to even mention the Scifresh cultivar name.

That said, there’s a bit more here than meets the eye. Most of the newer apple cultivars (including all of those featured above) tend to be protected by patents and/or are “managed varieties” sold through tightly regulated grower cooperatives and clubs (here’s one overview of such cultivars), such that use the apple brands – along with access to trees themselves – is tightly controlled by various agreements. However, it seems to me that, even in the relative safety of an apple club, using brand names as generic terms is tempting fate, and could eventually result in fatal consequences for certain apple brands.  Particularly once a cultivar patent expires, it could be only a matter of time before growers outside of a club get their hands on trees and sell their own apples under the same “brands.” At that point, even an apple a day may not be enough to prevent a loss of trademark rights.

Copyright © 2023, Foley Hoag LLP. All rights reserved.

Comments Off on How Do You Like Them Apple (Trademarks)? Malus Musings on Brand Protection