Can You Register Realistic Images of Common Goods as Trademarks?

  • Trademark Clearance
Can You Register Realistic Images of Common Goods as Trademarks?

Corsearch has identified a growing global trend in brands attempting to register true-to-life images of common goods as trademarks. But are applications successful?

Apple – known in the IP world for its iconic logomark and watertight IP portfolio – is making further strides to cement its hold over brand-related images. As keen-eyed trademark professionals may have already observed in industry press, Apple is attempting to obtain the rights to a black and white image of apples in Switzerland – specifically the bright-green Granny Smith variety. The trademark is for a realistic, true-to-life depiction [1] of the fruit that is sold widely in supermarkets and green grocers. This represents an expansion of Apple’s current trademark portfolio for hardware, electronic, digital, and audiovisual uses relating to smartphones, headphones, smart watches, and other Apple goods and services.

The aim of Apple’s approach? While Apple hasn’t disclosed why it is pursuing this route, in short it is likely a part of a broader strategy to solidify its hold over images, terms, and phrases that are linked to Apple’s products or brand name. The desired goal is probably to keep the brand distinct from other companies that use ‘apple’ within their name or sell the fruit itself, allowing Apple to retain strong brand recognition with universally recognized images of the fruit and prevent consumer confusion.

In Autumn 2022, Apple was granted trademark protection by the Swiss Institute of Intellectual Property (IPI) for a limited number of products. The IPI justified only partially granting the rights by citing the legal principle that generic images relating to common goods – such as fruit – falls under public domain and is therefore free for anyone to use. Apple has since appealed the applications that were rejected, including common uses such as audiovisual footage “meant for television and other transmission” – but we may have to wait months, if not years for the final resolution.

Switzerland is just one of many countries where Apple is vigorously expanding its trademark portfolio; it has also successfully registered marks related to the Granny Smith apple in Japan, Turkey, Israel, and Armenia [2].

What does this mean for the global IP rights industry?

The trademark registration for black-and-white images of the fruit may give Apple wide-reaching protection over the shape, allowing the company to oppose third-party registrations in a broad selection of colors. Apple could argue that there is the potential for confusion with other varieties of the fruit, due to similarities with the Granny Smith.

However, Steve Stolfi, Chairman at Corsearch, notes that companies that can evidence historic usage of a disputed mark may have strong legal protection, “This could cause a headache for Apple as countless brands have used derivations of the apple symbol, without Apple’s signature ‘bite-mark’, for many years.”

Still, there are encouraging signs for other brands looking to establish marks using realistic images that many would have previously thought too difficult to register. Question marks will of course remain about how far these types of registrations will go – and when they may stray into ‘universal’ imagery that brands would have a hard time getting through IP offices.

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As the trademark landscape continues to evolve, it is critical that your strategy is fluid and the external partners you use can respond to change. Our continual innovation and investment in AI enables you to deliver faster, more accurate results and keep pace with ever-changing demands.

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Our latest Industry Report provides a benchmark for law firms and brands to ensure they are keeping pace with competitors. In the corporate world, trademark data and industry trends can reveal much about competitive filings and sectoral performance.

The report offers:

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  • Early warning of competitor activity