Trademark revocation for non-use: Apple will have to “Think Different”

The Cupertino corporation has recently lost its battle in the long-standing legal conflict between Apple and Swatch: it will no longer be able to prevent the well-known watch manufacturer from using the “Tick Different” trademark on the basis of its famous “Think Different”, which was created as a slogan in 1997 for the market launch of its computers.

The General Court of the European Union dismissed the appeals filed by the American company against the EUIPO’s decisions that had declared the revocation of three “Think Different” word marks (registered for different classes).

This is the background to the case: in 2016, Swatch filed three applications for the revocation of the trademarks in question before the EUIPO, alleging that they had not been put to genuine use for the goods concerned (computers) for an uninterrupted period of five years.

In 2018, the EUIPO had acknowledged Swatch’s claims, in a decision later upheld by the Board of Appeal. While considering past use of the mark, such that it had become iconic, the Commission had pointed out that, during the relevant period, Apple had limited itself to affixing the trademark on the packaging of its computers, in rather small print, next to the technical specifications of the product. In the Commission’s view, such use did not constitute “genuine use”.

The US company then challenged the Commission’s decision in 2021 before the General Court of the European Union; however, the Court rejected it in the judgment commented upon below.

Apple had claimed that, in determining the lack of genuine use of the trademark, the EUIPO had failed to consider the high level of attention paid by consumers when purchasing technologically advanced and innovative products, such as the computers sold by Apple itself. The American company had also produced numerous press articles relating to the “Think Different” advertising campaign.

The Court found, however, that the manner in which the contested trademarks were affixed to the packaging was not sufficient to generate a particular level of attention with respect to the marks themselves, adding that Apple had not provided any evidence about the alleged increased level of attention related to the purchase of technologically advanced products.

Furthermore, the General Court pointed out that the trademark “Think Different” had not been used independently, but in combination with the term “Macintosh”: this, together with the already “rather weak” distinctiveness of the trademark, would have led the relevant public to interpret the wording “Think Different” as a mere promotional message and not as a trademark, given the absence of the essential function of indicating the origin of the goods.

With regard to the documentation submitted by Apple, the Court found that it referred to a period more than ten years earlier than the relevant period for the assessment of genuine use, also pointing out that the sporadic use of “Think Different” to occasionally commemorate events - for example, the 30th anniversary of the Macintosh in 2014 - could not be considered a genuine use of the trademark for the registered goods.

Finally, the General Court also rejected Apple’s claim that the sales figures of its products, within the European Union, had not been properly taken into account: the company had in fact produced annual worldwide sales figures, however, the Court found that these figures did not provide any reliable details specific to the Union or the actual use of the contested trademarks.

With Apple’s appeals thus rejected, the Cupertino corporation was ordered to pay the legal costs and lost the exclusive for its iconic “Think Different” in Europe.