photo by Juraj Varga
I am no guacamole lover – in fact, I don’t believe I have ever deliberately injured an avocado in any way. But I was still heartened to hear the results of a recent lawsuit centered on the millennial fruit of choice.
A few years ago, a massive new version of the avocado hit the market. The “Carla” avocado has been described as “party-sized”: the variety can weigh as much as 2.5 pounds. U.K. retailer Marks & Spencer marketed it as five times the size of a Hass avocado, the variety most familiar to British (and American) shoppers. Metro, a British newspaper, offered video proof that if you remove a Carla avocado’s pit, an entire mini avocado fits inside. That’s a lot of guacamole.
The Carla was cultivated from a tree found in the Dominican Republic in 1994. The farm Agroindustria Ocoeña, which goes by the shortened form “Aiosa,” patented the variety in the U.S. in 2006. According to the patent application, the tree that produced the first Carla avocado was a Guatemalan and West Indian hybrid that yielded not only huge avocados, but produced for longer than most other green-skinned avocado varieties. The tree’s owner grafted cuttings onto nonhybrid trees, creating a sustainable stock. The patent remains in force through 2024.
While not all fruits are patented, some are. Here in the U.S., growers commonly apply for patents for new apple varieties. But growers also sometimes patent other fruits, including pears, peaches and strawberries. The incentive to patent avocados has increased as they became more popular. Avocados have become big business in the past decade or so, and demand has led countries such as the U.S. to become net importers. According to the Agricultural Marketing Resource Center, the United States imported $2.6 billion in fresh avocados in 2017. While most U.S. avocados come from Mexico, other growers – including the Dominican Republic – have gained market share. In 2018, Dominican growers shipped 33.3 million pounds of avocados to the U.S., according to data from a U.S. avocado trade association. So the financial stakes are high, especially for a variety of avocado that is available at times other varieties are not.
The Carla and its patent recently became the center of a lawsuit here in South Florida. Aiosa’s lawyer Ury Fischer told Vice that he spent years demanding a Miami produce distributor stop selling unauthorized Carla avocados. (A DNA test proved the doppelgangers were, indeed, Carlas.) Fischer sent the distributor, Fresh Directions International, a cease and desist letter back in 2012. Nothing happened. In September 2018, Aiosa filed a lawsuit against Fresh Directions in the Southern District of Florida.
Fresh Directions did admit to growing and selling Carlas. But the company denied that it was doing so in infringement of Aiosa’s patent.
In a twist, the fight turned out to be a family affair. Carlos Antonio Castillo Pimentel filed the original U.S. patent. At some point before the patent’s approval, Carlos gave some cuttings to his brother Manuel, who also raised avocados. The two worked together at the time, according to the BBC. But the brothers eventually parted ways to start two separate companies. Carlos’ company became Aiosa. The enterprise that Manuel started, Macapi, is Fresh Directions’ parent company.
When the family connection became clear, Aiosa dropped the lawsuit. “AIOSA was not aware of Fresh Directions’ implied rights to the patent and would not have brought suit had it known,” Fischer told the Miami Herald. The original lawsuit, brought by Carlos’ family members, did not mention the connection between the companies’ owners. (Manuel is still alive, though Carlos has died.) Fischer said that the first he had heard of the history involved was the BBC report, in which a former Dominican Minister of Agriculture said that Carlos had given Manuel permission to use the Carla cuttings. Aiosa has apologized for bringing the suit.
Even though the availability of Carla avocados in South Florida is immaterial to me, this ending still seems like a victory. On occasion, litigation can uncover new information that actually makes a courthouse live up to its aspirations as a place where truth is sought and found. It is not a story that happens as often as we’d like. But in this case justice – and avocados – prevailed.