APPLE LOSES SLOGAN THINK DIFFERENT

PRESS RELEASE No 97/22

Luxembourg, 8 June 2022 Judgment of the General Court in joined cases T-26/21, T-27/21 and T-28/21 | Apple/EUIPO - Swatch (THINK DIFFERENT)

Apple and Swatch "THINK DIFFERENT".

The General Court dismisses the appeals brought by Apple Inc. against the decisions of the EUIPO which had declared the word mark "THINK DIFFERENT" revoked.

In 1997 (T-26/21), 1998 (T-27/21) and 2005 (T-28/21), the appellant, Apple Inc. obtained registration of the word sign THINK DIFFERENT as a European Union trade mark.

The goods for which registration was sought include, among others, computer products such as computers, computer terminals, computer keyboards, hardware, software and multimedia products.

In 2016, the intervener, Swatch AG, filed three applications for revocation of the disputed trademarks with the European Union Intellectual Property Office (EUIPO). This company claimed that the disputed marks had not been put to genuine use for the goods in question for an uninterrupted period of five years.

On August 24, 2018, the EUIPO Cancellation Division declared the revocation of the disputed trademarks for all the goods in question as of October 14, 2016. Apple's appeals against the Cancellation Division's decisions were rejected by the Fourth Board of Appeal. In January 2021, Apple Inc. filed three appeals before the General Court.

By its judgment delivered today in these three cases, the General Court dismisses the appeals.

According to the General Court, it was for Apple Inc. to prove to EUIPO that it had put those marks to genuine use for the goods in question during the five years prior to 14 October 2016 (the date on which the applications for revocation were filed), that is to say, between 14 October 2011 and 13 October 2016.

By its appeals, Apple Inc. criticized, inter alia, the Board of Appeal's failure to take into account the high degree of attention of the relevant public when assessing the genuine use of the marks at issue.

In particular, it disputed the Board of Appeal's finding that the relevant public easily overlooked the labels on the packaging of iMac computers, labels on which the marks at issue were displayed. In the General Court's view, Apple does not show that taking into account a high degree of attention would have led the Board of Appeal to consider that the consumer would examine even the smallest detail of the packaging and would have paid particular attention to the marks at issue.

On the other hand, the General Court rejects Apple's argument that the Board of Appeal wrongly failed to take into account the sales figures for iMac computers in the Union as a whole, presented in the witness statement of 23 March 2017.

The annual accounts for the years 2009, 2010, 2013 and 2015 that were attached to that statement only contain data on worldwide net sales of iMac computers but do not provide any data relating to the sales figures of iMac computers in the Union.

Moreover, Apple criticized the Board of Appeal's finding that the marks at issue were devoid of distinctive character. The General Court states that that argument is based on an erroneous interpretation of the contested decisions and points out that the Board of Appeal did not say that the words 'THINK DIFFERENT' were completely devoid of distinctive character, but that it attributed a rather weak distinctive character to them.

The General Court observes that, contrary to what Apple claims, the findings of the Board of Appeal on the distinctive character of the marks at issue are not contradicted by a body of evidence intended to establish genuine use of those marks. Although it is true that the evidence of genuine use submitted to EUIPO includes numerous press articles referring to the success of the advertising campaign entitled 'THINK DIFFERENT' when it was launched in 1997, those articles were published more than 10 years before the relevant period began.

The General Court considers that there is no infringement of the right to be heard in the present case. Moreover, according to the Court, the Board of Appeal provided a sufficient legal basis for the contested decisions as to whether Apple had adduced evidence of genuine use of the marks at issue.

Source: curia.europa.eu