No Confusion
This must hit hard at Apple Park Way in Cupertino, the headquarters of Apple Inc. According to EUIPO, Apple’s immense brand recognition does not help in this case. Consumers will not associate or confuse the trademarks Apple and Opple. Does Opple not resemble Apple? A case of sunstroke at the European trademark office in always sunny Alicante? No, not sunstroke, EUIPO is simply applying the neutralisation doctrine.
Neutralisation
The neutralisation doctrine, introduced by the European Court of Justice, has been regularly applied in trademark jurisprudence in recent years. The theory is that the visual and aural similarities between two trademarks can be neutralized by a clear and specific meaning of one of the trademarks.
Blackspace vs Backspace
A practical example: some time ago, when the owner of the trademark BLACKSPACE filed an oppostion against the registration of the nearly identical trademark BACKSPACE, the Benelux Trademark Office ruled that the trademarks BLACKSPACE and BACKSPACE are not similar! Consumers primarily will think of a key on a keyboard when they see BACKSPACE. According to the neutralisation doctrine, this clear meaning eliminates the similarity between BLACKSPACE and BACKSPACE, and thus there is no trademark infringement. A bit strange, if you ask me.
Appel
And so Apple also fell into the neutralisation trap. According to EUIPO, consumers will immediately associate the trademark Apple with the concept of an ‘apple’. ‘This is sufficient to outweigh the visual and aural similarities between the signs’, says EUIPO. The global recognition of the Apple brand can not change this.
Apple Detached from Apple
I have some difficulty with this neutralisation doctrine in general, and especially in this specific case. Who still associates the world-famous Apple trademark with an apple? Apple is simply the brand Apple, world-renowned for its beautiful smartphones. Even that apple logo does not change this. I think the Apple brand has detached from its literal meaning. This can happen with very famous brands. Who thinks of an ‘easy plane’ when they hear EasyJet?
Apple has until January 8 to appeal these decisions. I would be surprised if the company does not take advantage of this.
Bas Kist
Banner by Isabella Fischer on Unsplash
Backspace: Tom Anderson, CC BY 2.0, via Wikimedia Commons
