McIntosh, Granny Smith, and Pink Lady are all apple trademarks. Consumers have long been supporting apple trademarks and clubs without even noticing that apples are often sold under their specific trademarks, unlike most other produce. In the past few years, the rise of apple trademarks and apple clubs have resulted in an increase in the variety of apples available at supermarkets. Most of the substantial differences are related to intellectual property rights, however, and not due to significant differences in the look, flavor, or genetic history of the apples.
Apples Distinguished by Cultivar Name
Unlike most produce, apples are one of the few produce items that are sold and distinguished by cultivar name, which means that consumers will actually pay more for varieties based on their apple trademark name, because of a belief that specific varieties offer unique qualities in taste, color, and flavor. The concept of owning intellectual property rights in produce has existed since the mid-20th century when, for example, apple tree growers began to spend money in growing specific varieties to better profit or sustain easier crop growth.
The Honeycrisp apple was created and developed by the University of Minnesota. To create the Honeycrisp apple, researchers grew and crossed hundreds of different varieties of apple until they were able to create the Honeycrisp apple that boasts a unique combination of sweetness, color, and growth. When they first stabilized the strain, the University of Minnesota actually patented that specific apple variety, which only recently expired in 2008. Before the patent expired, however, every apple farmer or grower who wanted to grow Honeycrisp apples had to pay royalty rates of approximately $1 per tree to the University of Minnesota.
Growers Obtain Apple Trademarks to Increase IP Protection
In order to get around the apple patents expiring, researchers also began to trademark the specific names of apples as well. Whereas other fruit that are usually distinguished by their colors (e.g., red grapes, green grapes, etc.), apples carry their capitalized names when sold. As a result, when apples are sold, the owner of that specific trademark still retains the exclusive right to sell that apple variety in perpetuity. While patenting or trademarking the apples does secure compensation for the plant breeders who developed the varieties, it does not ensure the quality of the product or the market supply because it is so difficult to require such standards in produce. This lack of direct quality control distinguishes normal trademark or licensing requirements from that of produce marks, or in this case, apple trademarks.
Apple Clubs Created to Hold Apple Trademarks and Other Intellectual Property Rights
The creator of a particular apple strain, however, generally does not hold the intellectual property rights to the apple. Instead, “apple clubs” generally hold the intellectual property rights to specific strains, requiring growers to join a particular group in order to be able to grow that specific apple variety. For example, the SweeTango® apple is a newer apple variety created by the University of Minnesota, but its trademark rights are controlled by the Next Big Thing cooperative. This means that the Next Big Thing controls the marketing, fruit quality, and general volume of apples produced every year. Before apple clubs were created, new apple varieties were often unable to generate acclaim due to a lack of marketing and because numerous growers would often clamor to sell them at the start, causing the new variety to be oversold, resulting in artificially low prices and profits. This generally ended up undercutting motivation by growers to actually sell or maintain the new variety.
Therefore, in response, apple clubs were formed and began to control the overall production process and hold the apple trademarks rights. For example, apple clubs now are able to restrict the cultivation of specific strains to a select number of growers. While this ensures that the variety is not undercut, it generally precludes smaller local growers from being able to sell the new strain of apple. As apple clubs continue to be successful in the overall production and growth of new apple varieties and apple trademarks, it will be interesting to see if other produce begins to follow in its footsteps.
Klemchuk LLP is a litigation, intellectual property (IP) and business law firm, located in Dallas, TX. The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights. The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution. Additional information about the trademark law firm and its trademark attorneys may be found at www.klemchuk.com.
Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.
Also published on Medium.