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The Federal Administrative Court has agreed with Apple: Switzerland must register the image of an ordinary apple as a trademark for audio and video.
The dispute is about the image of a lifelike Granny Smith – not about the world-famous bitten apple. The American tech giant has also registered the common apple as a trademark in many countries. Only Cambodia, Samoa and Switzerland offered partial resistance.
The Swiss Institute for Intellectual Property refused to register the image as a trademark for audio and video, arguing that the image of an ordinary apple was in the public domain. Anyone can tell without much imagination that it is an apple, so the picture is simply a synopsis.
Federal Administrative Court agrees with Apple
Apple contested this decision before the Federal Administrative Court in St. Gallen. At the court hearing in April, Apple’s lawyer argued that it was not about protecting an apple: the fact that the image of an apple could be used as a table of contents did not rule out registration as a trademark. That particular image – the Granny Smith – may not be used as a logo.
The Federal Administrative Court has now followed this argument. According to the judgment, which is not yet final, Switzerland must register the apple image as an Apple trademark for audio and video. It is unclear whether the Institute for Intellectual Property will appeal the judgment to the Federal Supreme Court. Upon request, it states that it must first review the verdict.
The fear of the fruit association
The Apple case has caused quite a stir in recent months. The Swiss Fruit Association was afraid of having to change its red apple logo with the white cross. “We feared that the trademark’s protection would extend to all forms of apples,” Jimmy Mariéthoz, director of the Swiss Fruit Association, told SRF. However, the verdict now states that Apple does not have a monopoly on the shape of the apple. So other apple images can still be used as a logo and even this particular image of a Granny Smith can be printed as a synopsis on packaging.
The fruit association is relieved: “The fact that it is not necessary to change our logo is good news,” says Mariéthoz. The association therefore refrains from taking any measures.
A common branding strategy
However, the company does not say why Apple protects an image that it does not use at all. According to brand expert Stefan Vogler, who heads a course at the Zurich University of Applied Sciences, Apple does this for strategic reasons: “Apple attaches great importance to protecting its symbol – the apple – in various versions in order to show the whole world: The Apple belongs to Apple.” According to the brand expert, other global corporations are also pursuing this strategy. Because it is successful: “If you ask schoolchildren in the USA for an ‘Apple’, they don’t think of an apple to eat, but of information technology,” says Vogler.
According to legal and trademark experts, the fact that the apple image originally belonged to the British band Beatles could also play a role in this specific case. After a dispute, Apple and the Beatles agreed that the image belongs to Apple but the Beatles are licensed to use it. It could therefore be that Apple is contractually obliged to defend the image of the apple, also in order to be able to continue collecting royalties.