Pink Lady America wants to trademark "Wild Pink" in the European Union, allowing U.S. apple exporters to sell improved cripps pink varieties there.

The Board of Appeal of the European Union Intellectual Property Office recently upheld an earlier decision that the trademark Wild Pink does not create confusion with the Pink Lady trademark. The decision could be appealed by Apple and Pear Australia Limited.

"The development of Wild Pink is an additional trademark that could be used to allow products from the U.S. and perhaps other regions to be able to access (European) markets," said Lynnell Brandt, president of Pink Lady America, Yakima, Wash.

Unlike the U.S., EU plant breeding laws don't allow for improved cripps pink strains, or essentially derived varieties, to be marketed freely as new varieties. Instead, they are restricted by plant variety rights held by holders of the European cripps pink plant patent.

In the U.S., many improved varieties have received new plant patents and have been accepted by Pink Lady America to meet the trade requirements for the Pink Lady trademark. The Wild Pink name could allow U.S. apple exporters new markets for improved cripps pink varieties - such as one variety that matures 30 days earlier than the traditional cripps pink, he said.

Pink Lady America also is seeking to annul the cripps pink plant variety rights in Europe based on the fact the variety was widely cultivated in Australia before being given plant variety protection in the EU.

"Part of the principal goal would be to allow the U.S. shippers of these (improved cripps pink) selections to have access to the European market," he said.

Court battle continues

In other developments, a court battle between Apple and Pear Australia (APAL) and Pink Lady America over the latter's shipping Chilean apples to North America is being contested.

Brandt said the group has applied to the High Court of Australia for a review of the case. Pink Lady America won a lower court ruling in Australia allowing Pink Lady America to use the flowing hearts trademark for Chilean fruit exported to North America. The Australian Court of Appeals recently sided with APAL, and Brandt said Pink Lady America is seeking a ruling from the High Court of Australia.

A stay of execution sought by the U.S. company to continue licensing exporters in Chile until the High Court application was determined was dismissed recently, but Brandt said the dispute won't stop Chilean Pink Lady trademarked fruit from being exported to the U.S. later this season.

Pink Lady America owns the Pink Lady trademarks outright in the U.S. and Mexico and has the master license for Canada from APAL. APAL manages the Pink Lady trademark in other parts of the world, Brandt said.

Pink Lady America worked with APAL in Chile under various agreements. Disputes over some of those agreements led to the court actions, Brandt said.

APAL commercial division manager Garry Langford said in a news release that the Court of Appeals confirmed the group's rights to the Pink Lady trademarks in Chile. APAL plans to issue the Chilean export license for the 2017 season in the same format as the export licenses issued in other Southern Hemisphere territories. The license grants exporters the right to ship Pink Lady apples to more than 100 territories where APAL has rights to the brand. In the U.S. and Mexico, Pink Lady America must OK the exports.