EU cases on what constitutes a registrable design are as rare as hen’s teeth, so we regret taking so long to report OHIM Appeal Decision R 595/2012-3 , available only in Dutch, rejecting RCD 1943283-0001 (A.C.J. Ammerlaan, who also patents methods of growing bulbs).  The design, depicted left, was filed for goods in Locarno Class 1:02 Fruit and Vegetables.  The Examiner rejected it, and was upheld on appeal by the Board of Appeal.

OHIM are entitled to examine whether applications involve a statutory “design”.  In Europe, ‘(a) "design" means the appearance of the whole or a part of a product …’ and ‘(b) "product" means any industrial or handicraft item …’ (Art 3 CDR).  The issue here was whether fruit was a “product”.

According to the Board, “living organisms are not "products", that is to say that they are not conventionally made industrial or handicraft items....A design that has the appearance of a tomato in its natural state, as is the case in the contested design, should principle be rejected.” 

In that respect, their decision accords with the opinions of authors such as (*ahem*) Musker: Community Design Law (2002) para 1-025 and Stone: European Union Design Law (2012) para 4.63, as well as some earlier OHIM first instance case law (although Monsanto have registered several melons, see RCDs 000375753-0001 to -0006 and 000549951-0001). 

Even had the heart-shaped tomato been unusual and genetically engineered (which was not proven to the Board and, my quick Google search suggests, is not in fact the case) that would probably not have helped.  “Even if the corresponding shape differs from that of an ordinary tomato , nothing indicates that the shape resulting from an industrial or manual alteration of the tomato and not from a special plant. In addition, even if the appearance of the tomato were actually unique … this would not mean that it follows that the contested design is applied to an industrial or handicraft item … and should be registered.”

Perhaps the applicant’s mistake was to file in Class 1.02, instead of Class 11.04 Artificial Flowers, Fruit and Plants.  That class contains several registrations to very natural-looking fruits.  After this decision, however, it must be questionable whether any registrations would be infringed by fruits or vegetables.