2023-08-11 10:16:31
Apple obtains trademark registration for a simple image of an apple. The Federal Administrative Court allows an appeal by the American company once morest the refusal by the Institute of Intellectual Property. The decision concerns the technological sectors.
In 2017, the World Intellectual Property Organization (WIPO) notified the extension to Switzerland of the protection of this “figurative mark”, initially registered by Apple in the United States. This simple apple image – not to be confused with the firm’s logo representing a stylized bitten fruit – is supposed to apply to audio, video and cinematographic recordings.
In 2022, the Federal Institute for Intellectual Protection (IPI) definitively rejected Apple’s request. He justified his decision by the fact that the disputed image, by faithfully representing an apple, belonged to the public domain. Even if it can be understood as a reference to the activities of the Apple company, it would lack the distinctive character necessary to claim protection as a mark, considered the IPI.
No market need
For the Federal Administrative Court, on the other hand, the protection of the mark does not yet say anything regarding the subjects dealt with in the registrations concerned. Rejecting Apple’s request on the grounds that the apple might represent a subject matter would result in the exclusion of any protection for audio, video or cinematographic marks.
The St. Gallen judges add that the IPI has not found a current need for the use of this image on the market – which would require it to remain available. Furthermore, the institute also did not claim that the image was typical of the services referred to in the application.
Under these conditions, the magistrates conclude that the protection required by Apple must be granted. Subject to the use of this image by media dealing with the subject of apples.
Concerns of Fruit-Union Switzerland
In the past, the interprofessional Fruit-Union Switzerland – which has a red apple as its logo – had already publicly expressed its fears regarding Apple’s desire to register any image of an apple. Jimmy Mariéthoz, director of Fruit-Union Switzerland, takes a dim view of the TAF’s decision.
“It shocks us and we really regret it, since the apple is a public good and should not be protected in any way”, he reacts in La Matinale.
The Fruit-Union Suisse logo should not be affected by the decision, however. “According to the first judgments that we have seen in the file, we should be spared by this protection, since it is a question of technological goods, and we remain in agricultural production”, specifies Jimmy Mariéthoz.
>> The interview with Jimmy Mariéthoz in La Matinale: Apple has the right to register an image of an apple as a trademark: interview with Jimmy Mariéthoz / La Matinale / 59 sec. / today at 06:20
Relative scope of the decision
Philippe Gilliéron, lawyer and intellectual property specialist, puts the scope of the TAF’s decision into perspective. “The judgment only concerns a very limited area, which is the new class, namely DVDs, CDs, blank recording media, etc.”, he lists.
“Today, Apple has a monopoly in using the logo of an apple shape for the sale of this type of product. This does not mean at all that no one in the future will be able to make documentaries on apples, and would suddenly risk being the subject of an infringement of Apple’s trademark rights”, specifies the lawyer.
Around the world, Apple applies this same strategy. The technological giant seeks by all means to protect its name and its visual identity. The decision is not final and can be challenged before the Federal Court.
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