25 October, 2013
Spruson

Apple Inc. v Experienced Apples Pty Ltd [2013] ATMO 84

Apple Inc. v Experienced Apples Pty Ltd [2013] ATMO 84

Apple opposed the registration of Australian Trade Mark Application 1463080 in respect of class 35 office machines and equipment rental.

experienced apples

The opposed trade mark

The trade mark applicant made no appearance or submissions.

The mark was opposed on various grounds, but was decided only on section 60, and so consideration of the other grounds was unnecessary.

Apple led evidence to establish that the use of the applied mark would be likely to deceive or cause confusion because of the reputation of another trade mark (namely, its own) that had acquired reputation in Australia before the opposed application.

As the Delegate stated:

“at the heart of the present opposition is the claimed similarity of the Trade Mark to marks containing or consisting of the word “apple”, and/or to the apple device”

The Delegate was in no doubt that the Apple’s trade marks would be very familiar to a significant number of Australians, given the consistent use of the marks over four decades, and the extensive promotional efforts (USD$3,000,000,000 since 1994).

It was also accepted that in light of the reputation that the use of the opposed mark for rental of office machine and equipment, would at least result in consumers being in doubt as to whether the services were being offered by or connected with Apple.

As a passing observation the Delegate noted the “disclaimer” that featured at the applicant’s website (which read to the effect that the applicant was in no way associated with Apple) was irrelevant to the intended use of the mark considered, but was in any event somewhat disingenuous.

Apple was found to have established the s 60 ground and the application for registration was refused.

To view the Office decision, click here.

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