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EU: Curly fries protected as designs

When talking about protecting designs, food is usually not the first type of product that comes to mind. However, just like various household and utility products, food can be the subject of design protection. A decision by the court of The Hague shows that design protection is just as alive and relevant in the food industry, resulting in effective protection.

The US company JR Simplot Company is the owner of an EU design registration incorporating the shape of a curly fry (described in the registration as "potato shapes"), branded the Sidewinder. While the product was successfully launched in the US and Canada in 2013, Simplot had not made sales of this product in the EU. McCain, the well-known manufacturer of potato products, launched a curly potato product under the designation Rustic Twist in the autumn 2016 in the EU. Simplot has since undertaken several legal measures against McCain, alleging that McCain infringed Simplot's design rights.

Sidewinder Rustic Twist

Among Simplot's actions were interlocutory proceedings before the court of The Hague, in which Simplot sought a preliminary EU-wide injunction order against McCain.

In its defence, McCain claimed that the EU design registration of Simplot is unclear since several of the images therein are of poor quality and cannot be properly understood. However, the court did not follow this argument. Also, McCain claimed that the Sidewinder, at the time of its registration, was preceded by various foods with a curly shape, such as potato snacks and a loaf of bread. However, McCain did not succeed in proving that the shape of the Sidewinder – as shown in Simplot's EU design registration – is actually found in earlier food products or in proving that similar shapes were present in the market before.

Effectively, Simplot's design registration for the Sidewinder fries is deemed to have individual character and to be novel, resulting in an adequate protection. Although there are some minor differences between the Sidewinder and the Rustic Twist, the court held that the Rustic Twist is much closer to the Sidewinder than to the prior products pointed out by McCain, resulting in an EU-wide injunction against McCain. Manufacturers of food products will consider this decision a tasty legal treat.

Juriaan Cleuver

Carnegieplein 5, 2517 KJ
The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99



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