Think Different vs. Tick Different
No doubt every tech and Apple fan is familiar with the iconic words "THINK DIFFERENT," the slogan was used by Apple from 1997 to 2002. Unfortunately for Apple, they can no longer use it.
The EU General Court has rejected Apple's appeal of the revocation of their trademark registrations for this slogan. The legal dispute began when Swiss watchmaker Swatch Group launched a revocation action against multiple EU trademark registrations for "THINK DIFFERENT".
In which Swatch claimed that Apple's trademark registrations are no longer in use. Unuse of existing trademark registrations makes them susceptible to revocation proceedings, since there is an obligation under EU trademark law to use your registered trademark. Swatch uses the slogan "TICK DIFFERENT" for its watches and has a history of legal proceedings with Apple.
The Court has now upheld the earlier decision of the Board of Appeal, which found in favor of Swatch and revoked Apple's trademark registrations. The reason is that Apple had failed to prove genuine use of the mark in the five years prior to the proceedings. For example, Apple had presented evidence of mention of the phrase on iMac packaging.
However, the Court held that the size and location of the expression on the packaging was too insignificant to constitute genuine use, as the expression was in a small font next to the barcode. Thus, consumers would not perceive the expression as indicating the commercial origin of the goods.
How do you protect a slogan?
This case illustrates that it is not always easy to register a slogan as a trademark. Often slogans have only a temporary advertising or promotional function. This can make it difficult to prove genuine use of your slogan under trademark law, since you must use your slogan to distinguish the commercial origin of your goods and services. Are you using the slogan as a permanent baseline with the logo and long-term and as part of your mark? If so, always consult a trademark expert when creating and protecting it.