In 2013, OHIM's Board of Appeal ruled that living organisms as such do not meet the definition of a Community design*. The applicant sought to register a heart-shaped tomato as a Community design for vegetables and fruit.
OHIM refused the registration as it found that the heart-shaped tomato did not comply with the definition of a design. According to the Community Design Regulation, ‘design’ means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture (..) and ‘product’ means any industrial or handicraft item (…).
In appeal, the applicant inter alia argued that the design is unique and is a result of an industrial, handicraft process and that by rejecting the design, technological developments in the global agricultural sector are disregarded.
OHIM's Board of Appeal set the applicant's arguments aside and took the same approach as the examiner. The Board considered that living organisms as such are not 'products', i.e. they are not considered industrial or handicraft items, and concluded that a design with the appearance of a tomato in its natural state, should in principle be refused.
The claim that the shape of the tomato is unique and engineered did not appear to make any difference, as the Board furthermore found that even if the shape differs from a common tomato, nothing indicates that the shape results from an industrial or manual treatment and not from a special plant variety. According to the Board, even if the shape of the tomato would actually be unique, this would still not mean that the design is the result of an industrial or handicraft process.
So much for design registration of heart-shaped tomatoes.
*OHIM Appeal Decision, 18/2/2013, R 595/2012-3. The decision is only available in Dutch and has only recently been published in OHIM's newsletter.