Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 13
Share on Social

The European Union Refuses to “THINK DIFFERENT”
Many people may remember Apple’s iconic trademark THINK DIFFERENT from the late 1990s. The advertising campaign made a big splash with both television and print ads featuring images of several famous influential leaders throughout time, such as Albert Einstein, Jim Henson, Martin Luther King, Jr. and even Steve Jobs himself. The campaign spanned nearly a decade and won several awards including an Emmy Award for Best Commercial. The mark is still used on packaging for the company’s iMac computers.
However, the General Court of the European Union recently held that Apple’s use of the mark was not genuine trademark use sufficient to prevent cancellation of its registrations. The court upheld a prior decision by the European Union Intellectual Property Office to cancel Apple’s three European Union trademark registrations for the mark in connection with computers and computer related products. The court cited insufficient use of the term in a trademark manner as the basis for its ruling. Although the court found that Apple’s use of the mark in the late 1990s, and for a period of about 10 years thereafter, constituted use as a trademark, it ultimately held that Apple’s use during the relevant period of examination for the proceeding, namely October 2011 to October 2016, did not rise to the level of genuine trademark use. Below is an example of Apple’s product packaging showing use of the mark during the relevant time period.
The court took issue with the size and placement of the mark on the packaging and noted that consumers would likely overlook the small print located underneath the technical specifications. The court reasoned that such small font and placement was not likely to draw consumers’ attention, and thus, the mark did not identify the commercial origin of the products. By contrast, under U.S. trademark law, the above product packaging is acceptable to support a U.S. federal trademark registration and in fact was used to renew Apple’s U.S. registration for the mark as late as 2013.
Nevertheless, the loss of Apple’s EU registrations is a big blow to the company given the notoriety of the mark and the fact that many people still associate the iconic mark with Apple. Apple has not yet commented on the decision.
It will be interesting to see whether Apple continues to renew its other registrations for the mark in the future. One factor that may have an impact on Apple’s future course of action is its ongoing feud with the Swiss watch manufacturer Swatch AG, which had initiated the cancellation proceeding that resulted in the outcome in this case. Swatch and Apple are engaged in several contentious trademark battles. At any rate, this case serves as a good lesson for EU trademark registration owners: when it comes to proving genuine trademark use, size and placement matter!
Published June 24, 2022
Finny continues his adventures around the world!
Sir Finnegan, known as “Finny” to his school of family and friends, is taking a trip to explore the diversity of intellectual property all around the world. If you see Finny on his journey, please take a picture of Finny and post it on social media with the hashtag #FollowFinny so we can track his progress. A plush toy of Finny is available to take home HERE.
Related Content from Fishman Stewart
L.A.B. Golf aims to protect its innovations, and therefore its market position, owning three patents for its zero-torque design. The question now is whether L.A.B. Golf can withstand the wave of copycat designs.
One of his most famous songs, “Lose Yourself” was recently at the center of a lawsuit. In 2019, Eminem’s publishing company Eight Mile Style sued Spotify claiming that Spotify streamed a number of its musical compositions without proper licenses.
Our latest article tackles three common trademark questions: 1. Can I trademark my own name? 2. Can I trademark the name of a fictional character? 3. Can I trademark the name of a U.S. president or British royal?
One of the most common challenges is whether AI should be free to train on data that is protected by copyright and owned by third parties without first obtaining permission.
Like the titles of single creative works, character names do not generate trademark rights unless used for a series of creative works (meaning two or more). A year ago, Jane Wick, LLC filed a trademark application for the mark JANE WICK in logo format.
The U.S. Copyright Office (USCO) recently published its latest report on AI and “copyrightability.” In short, the USCO considers only some AI-generated works to be sufficiently creative as to deserve copyright protection, and thus, registration.
We know that as of June 4, 2024, the United States Patent and Trademark Office (USPTO) had issued more than twelve million patents. We also know that more than 10,000 patents were in existence before the count began.
Back in the 1940’s assignments by independent contractors could be permanent and irrevocable. Things changed in 1976, when Congress overhauled the Copyright Act.
Generally, copyright protects the specific expression of ideas, such as the arrangement and presentation of visual elements, but it does not protect general concepts or styles.
In the age of the internet, memes are a universal language. A meme is a piece of content, typically an image, video, text, or a combination of these, that spreads rapidly across the internet, often with humorous, relatable, or satirical undertones.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
