The meaning of “apple”
With this decision, the BOA overturned an earlier ruling by EUIPO’s Opposition Division dated 8 November 2024. At that time, EUIPO had concluded that Apple and Opple were not particularly similar—neither visually nor phonetically—and that consumers would mainly associate Apple with the concept of an actual apple (the fruit). Because of that association, EUIPO reasoned, the trademarks are conceptually dissimilar and consumers wouldn’t link Opple to Apple. This concept is known as neutralization. EUIPO also believed that the two companies operated in different market sectors. Therefore, in 2024, it decided that Opple did not infringe on the famous Apple brand.
Apple and Opple are similar
However, on appeal, the Board of Appeal took a completely different view and overturned the EUIPO’s earlier decision. The BOA found that Apple and Opple are indeed similar, at least to an average degree, both visually and phonetically. And while some consumers might still associate Apple with the fruit, others might simply assume that Opple is a misspelling of Apple, the BOA noted.
Market segments
The BOA also dismissed EUIPO’s earlier finding that the trademarks operate in different markets. “Different segments? Hardly,” the Board argued. The lighting products of Opple and the technology ecosystem of Apple clearly overlap — for instance, Apple’s iPhone can be used to control smart lighting systems at home.
Opple takes unfair advantage
The BOA concluded that consumers are indeed likely to make a connection between Apple and Opple. As a result, Opple unfairly benefits from the enormous reputation and recognition of the Apple brand. Therefore, the Board decided earlier this month that Opple’s EU trademark registration will not go forward.
A fair outcome
To me, this is an excellent result. It never felt right that the world’s most famous brand couldn’t act against a trademark differing by just one letter, especially one operating in a somewhat related field. That said, I find the BOA’s reasoning a bit underwhelming — a rather simplistic yes-it-is / no-it-isn’t type of argument. In particular, the claim that Opple resembles Apple merely because consumers might see it as a spelling mistake seems weak.
BOIP’s take
In that respect, I’m more impressed by the ruling of the Benelux Intellectual Property Office (BOIP), which handled the very same Apple–Opple dispute earlier this year, but within the Benelux region. In that case, Opple also invoked the neutralization doctrine, arguing that Opple doesn’t resemble Apple because Apple clearly refers to the fruit. BOIP disagreed, stating: “When encountering the mark Apple, the public will not only think of the fruit, but also of one of the most famous brands in the world.” In other words, Apple is now so famous that its original meaning has faded. The BOIP therefore also found that Opple infringes upon the Apple trademark.
Bas Kist
