French fries twisting anti-clockwise constitute an infringement

10 May 2022

As do those that twist clockwise. But flat fries do not. This was the judgment in the new episode of the dispute involving McCain’s Rustic Twist fries. McCain had previously demanded that a European design right for French fries belonging to their competitor Simplot be declared invalid, and Simplot had initiated preliminary relief proceedings against McCain.

This revocation action was in vain, and McCain lost the preliminary relief proceedings. These proceedings were followed by substantive proceedings, which McCain also lost. McCain’s twisted French fries were an infringement of Simplot’s design right and therefore had to be withdrawn from the market.

The design heritage of snacks, the technical precision of patented cutting blades and the informed use of potato products. Not exactly the first thing you think of when getting the mayonnaise or ketchup out of the fridge. But in a court case, no stone is left unturned and every last detail is dealt with.

This is how we know that the functional and technical benefits of Sidewinders (Simplot’s French fries) did not ultimately limit the design freedom of designers of potato products and that this design of French fries therefore has a wide scope of protection. We also know that the Italian Snack Model (design registration 1996PTO000007-0006) and the Bread Model (001057921-003) are significantly different as a design heritage to Simplot’s twisted French fries design because they have a ‘more cylindrical shape with a smaller tip bent to the side’. In short, behind each freshly fried piece of potato lies a world of intricate detail.

All these intricate details, however, led to a very simple judgment: Simplot and McCain’s twisted fries look very much alike.

At the end of this judgment, however, the Court of The Hague ran into a problem: French fries twisting either clockwise or anti-clockwise constitute an infringement, but packs of McCain’s Rustic Twist also contain flat French fries.

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In the light thereof, is it still reasonable to recall all of these products from the shops to destroy them? After painstaking analysis revealed that approximately 70% of the fries in a pack of Rustic Twist were infringements, the court issued the harsh judgment that recall and destruction were proportionate. Once more, the good fries had to suffer along with the bad.

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