Minimalist design
In an attempt to change the Trademark Office’s mind, Apple argued that the very minimalist design and colours used would provide sufficient distinctiveness. Moreover, Apple argued, app icons on a cell phone are quickly perceived by users as an indication of origin – as a trademark.
Other weather apps
But EUIPO wants nothing to do with it. ‘The overall impression created by the mark is simply that of a typical icon used on software to indicate the weather’, EUIPO said. And just look around: there are many more such weather apps and icons, according to EUIPO, which in its statement gives a number of examples of similar weather apps.
More trademarks refused
In addition, EUIPO informs Apple that it is also refusing trademark registration for signs comparable to the present one. Take a look at these trademarks, which were all rejected for software or apps.
No acquired distinctiveness
Of course, Apple also invoked acquired distinctiveness of this icon. Acquired distinctiveness is the phenomenon whereby an originally non-distinctive sign becomes distinctive through extensive use. Look at how many many million iPhone devices since 2013 were running the new operating system featuring this icon, Apple argued.
But EUIPO can do nothing with it: it is ‘a simple button that is also part of an iPhone as well as symbols for plus and minus to increase and decrease the volume. Likewise, the consumers would not see a badge of commercial origin in such basic symbols as they are not, in the mind of the consumer, trademarks, but indicators to perform certain functions or open applications’, EUIPO said. No trademark and therefore no registration.
Bas Kist
