On 9 June 2022, the Court of Justice of the European Union (CJEU) dismissed the actions brought by Apple Inc. (Apple) against the decisions of the European Union Intellectual Property Office (EUIPO) revoking the "Think Different" trademark (the Trademark) of Apple due to non-use.
The Trademark’s significance for Apple
The disputed Trademark is commonly associated with a well-known Apple advertising campaign in which Steve Jobs, Apple's founder, praises the unconventional thinking of history's greatest innovators including Martin Luther King, Albert Einstein, and at the end, Apple’s bitten apple accompanied by the phrase "Think Different" appears which proved to be successful.
In 1997, 1998 and 2005 Apple successfully obtained registration by the EUIPO of the word sign “Think Different” as an EU trademark for goods concerning IT products such as computers and keyboards. However, in 2016 Swatch AG - the intervener – (Swatch) filed three applications with EUIPO to revoke the Trademark. In particular, Swatch challenged the legitimacy of the Trademark on the basis that it had not been put to genuine use – in relation to the products for which it was registered – for a continuous five-year period. Apple had to prove to the EUIPO that its Trademark had been put to genuine use for the goods concerned during the period from 14 October 2011 to 13 October 2016 (on which the applications for revocation were filed by Swatch).
On 24 August 2018, EUIPO accepted Swatch’s claims and revoked the challenged Trademark with effect from 14 October 2016 in respect of all the goods concerned. This position was further adopted by the EUIPO Appeal Board that Apple challenged before the CJEU, which ruled in June, accepting Swatch’s arguments.
The CJEU found that Apple failed to provide evidence of the Trademark’s actual and genuine use in the five years prior to 14 October 2016. Although Apple had provided multiple evidence highlighting the success of the advertising campaign carrying the Trademark at the time of its launch in 1997, those predate the period under consideration by over 10 years. In fact, Apple had stopped using the challenged Trademark in commercials during the relevant period but had affixed it to the back of the boxes of its Macintosh computers instead. Apple argued that EUIPO Appeal Board did not take into account the high level attention of the relevant public when assessing whether the Trademark had been put to genuine use as the EUIPO Appeal Board concluded that the relevant public would carelessly overlook the part of the packaging displaying the Trademark.
The CJEU found that Apple failed to demonstrate that taking into account the high level of attention of the relevant public, this would have led the general public to pay more attention and notice the labels of the packaging since consumers do not commonly closely inspect the packaging or pay particular attention to the Trademark therein.
What does this decision mean for trademark owners?
While successful registration may, at first glance, give some ease to trademark owners, this alone does not necessarily protect their intellectual property rights from future disputes concerning their trademarks’ legitimacy and validity.
Instead, trademark owners should be careful in using effectively their trademarks in a way that would put their consumers on notice of their use and would connect the product to the mark itself. Lack of genuine use of trademarks may lead to revocation of trademarks and the ability to enforce such trademarks against use by third parties.
The full judgement can be found here.