NEW DELHI: Apple has lost yet another trademark battle to Swiss watchmaker Swatch. The Court of Justice of the European Union has dismissed Apple’s bid to overturn a decision by the EUIPO to revoke its “Think Different” trademark in the European Union. The court rejected Apple’s appeal over Swatch’s “Tick Different” slogan, saying that the objections are based on a “misreading” of the ruling, and that Apple’s “Think Different” trademark remains revoked in the region. “The General Court dismisses the actions brought by Apple Inc against the decisions of EUIPO revoking the word sign THINK DIFFERENT,” said the court in the ruling
Over the years, Apple and Swatch have been involved in multiple court cases related to trademark infringement. Both have accused the other of infringing trademark. The longest-running battle so far has been on Swatch’s “Tick Different” line. Apple sued Swatch over the same in April 2017, claiming its similarity to the company’s “Think Different” trademark.
In 2019, Switzerland’s Federal Administrative court ruled that Apple’s “Think Different” slogan is not well known in the region. Apple was required to show that at least 50% of Swiss people associated the “Think Different” slogan with Apple. The court ruled that Apple has failed to do so. Post this, the case went on to the Court of Justice of the European Union, which has now dismissed Apple’s claims that termed the original ruling as flawed.
Apple vs Swatch: Over the years
* In 2016, Swatch successfully opposed Apple’s registration of the trademark “iWatch” in the UK. The UK’s Intellectual Property Office (IPO) upheld Swatch’s opposition, which was filed in March 2014.
* Similarly in 2015, Swatch won a trademark case over the phrase “one more thing”, this despite phrase being associated with Steve Jobs.
What the court said in this case
In 1997, 1998 and 2005, the applicant, Apple Inc, obtained registration of the word sign THINK DIFFERENT as an EU trade mark. The goods in respect of which the registration was sought include IT products such as computers, computer terminals, keyboards, computer hardware, software and multimedia products.
In 2016, the intervener, Swatch AG, filed with EUIPO three applications for revocation of the contested marks. The company claimed that the contested marks had not been put to genuine use for the goods concerned for an uninterrupted period of five years.
On 24 August 2018, the Cancellation Division of the European Union Intellectual Property Office (EUIPO) revoked the contested marks in respect of all the goods concerned, with effect from 14 October 2016. The appeals brought by Apple against the decisions of the Cancellation Division were dismissed by the Fourth Board of Appeal. In January 2021, Apple Inc brought three actions before the General Court of the European Union.
By its judgment delivered today (June 9) in those three cases, the General Court dismisses the actions. According to the Court, the onus was on Apple Inc to prove to EUIPO that those marks had been put to genuine use for the goods concerned during the five years preceding 14 October 2016 (the date on which the applications for
revocation were filed), namely from 14 October 2011 to 13 October 2016.
By its actions, Apple Inc complained inter alia that the Board of Appeal did not take into account the high level of attention of the relevant public when assessing whether the contested marks had been put to genuine use. In particular, it disputed the Board of Appeal’s conclusion that the relevant public would carelessly overlook the labels affixed to the packaging of an iMac computer which bore the contested marks. According to the Court, Apple has not demonstrated that taking into consideration a high level of attention would have led the Board of Appeal to find that the consumer would examine the packaging in any detail and that he or she would pay particular attention to the contested marks. In addition, the Court rejects Apple complaint that the Board of Appeal wrongly failed to take into account the sales figures of iMac computers throughout the European Union, put forward in the witness statement of 23 March 2017. The annual reports for the years 2009, 2010, 2013 and 2015, attached to that statement, contain only information on the net worldwide sales of iMac computers and do not provide any details as to the sales figures for iMac computers in the European Union.
Furthermore, Apple criticised the Board of Appeal for having concluded that the contested marks were devoid of any distinctive character. The Court holds that that argument is based on a misreading of the contested decisions and points out that the Board of Appeal did not deny the words ‘THINK DIFFERENT’ any distinctive character, but attributed to them a rather weak distinctive character.
The Court notes that, contrary to what Apple claims, the Board of Appeal’s conclusion as to the distinctiveness of the contested marks is not contradicted by a body of evidence aimed at proving that they have been put to genuine use. While it is true that the items of evidence of genuine use filed with EUIPO include numerous press articles noting the success of the advertising campaign entitled ‘THINK DIFFERENT’ at the time of its launch in 1997, those press articles predate the relevant period by over 10 years.