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Design protection – with a twist

Annual Review 2017-2018

June 2018

High-profile intellectual property litigation is common in sectors such as technology, automotive and fashion. But it’s more unusual to hear about disputes involving the design of food.

US food company J.R. Simplot claimed last year that the Rustic Twist fries made by its Canadian rival McCain infringed upon its EU design registration for a curly-shaped fry.

CMS Brussels partner Tom Heremans said, “One of our partners was having an unrelated meeting at McCain when the court-appointed bailiffs turned up to seize documentation and potential evidence in relation to Simplot’s claim. We were pretty much instructed on the spot and mobilised teams across Europe to manage the response extremely swiftly.”

As well as the ‘counterfeit seizure’ that was conducted against it in Belgium, France and the Netherlands, McCain faced summary proceedings and legal proceedings on the merits in France and the Netherlands. McCain initiated a cancellation action before the European Intellectual Property Office in Alicante, Spain against Simplot’s EU design registration. Additionally, McCain needed legal advice in Germany and Italy, where the fries are offered for sale.

A cross-border CMS team of lawyers in Belgium, France, the Netherlands, Germany and Italy is now advising McCain.

This has been a tough battle of claims and counter-claims. There is likely to be a long legal fight ahead until this matter is finally resolved.
Tom Heremans, Partner, CMS Brussels

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