EGC, Judgment in the cases T-26/21, T-27 /21 und T-28/21 Apple / EUIPO - Swatch “THINK DIFFERENT”

In 1997, 1998, and 2005, Apple Inc (applicant) obtained registration of the word sign "Think Different" as an EU trademark for, among other things, the goods including computers, computer terminals, keyboards, computer hardware, software, and multimedia products.

In 2016, Swatch AG (intervenor) applied to the EUIPO to revoke the challenged marks, claiming that the challenged marks had not been put to genuine use for the goods in question within a continuous period of five years.

On August 24, 2018, the EUIPO Cancellation Division declared the challenged marks revoked for all relevant goods as of October 14, 2016.

Apple's appeals against the Cancellation Division's decisions were dismissed by the EUIPO Fourth Board of Appeal.

In January 2021, Apple filed three actions with the General Court of the European Union. The court dismissed the claims.

The General Court found that Apple should have proven genuine use of these marks before the EUIPO for the goods in question during the five years prior to October 14, 2016 (the date of filing of the revocation applications), i.e., from October 14, 2011 to October 13, 2016.

Apple complained, first, that EUIPO failed to take into account the high level of attention of the relevant public. The Board of Appeal ruled that the relevant public would easily overlook the labels on the packaging of an iMac computer depicting the challenged marks. According to the Court, Apple did not show that taking into account a high degree of attention would have led the Board of Appeal to find that the consumer would have examined the packaging in minute detail and paid very close attention to the challenged marks.

Apple argued, second, that the Board of Appeal erred in failing to take into account the sales figures of iMac computers throughout the European Union presented in the witness statement of March 23, 2017. The annual reports for 2009, 2010, 2013, and 2015 attached to that declaration only provide information on worldwide net sales of iMac computers, but do not provide more detailed information on sales figures of iMac computers in the European Union.

Apple also challenged the Board of Appeal's conclusion that the challenged marks are not distinctive. The Court finds that this argument is based on a misunderstanding of the contested decisions and clarifies that the Board of Appeal did not deny that the expression "Think Different" was devoid of any distinctive character, but found that it had a rather weak distinctive character.

Go back