Taken from www.wired.com | Author: Gabriela Galindo | Date: 19 June 2023
Apple, the company, wants rights to the image of apples, the fruit, in Switzerland—one of dozens of countries where it’s flexing its legal muscles.
THE FRUIT UNION Suisse is 111 years old. For most of its history, it has had as its symbol a red apple with a white cross—the Swiss national flag superimposed on one of its most common fruits. But the group, the oldest and largest fruit farmer’s organization in Switzerland, worries it might have to change its logo, because Apple, the tech giant, is trying to gain intellectual property rights over depictions of apples, the fruit.
“We have a hard time understanding this, because it’s not like they’re trying to protect their bitten apple,” Fruit Union Suisse director Jimmy Mariéthoz says, referring to the company’s iconic logo. “Their objective here is really to own the rights to an actual apple, which, for us, is something that is really almost universal … that should be free for everyone to use.”
While the case has left Swiss fruit growers puzzled, it’s part of a global trend. According to the World Intellectual Property Organization’s records, Apple has made similar requests to dozens of IP authorities around the world, with varying degrees of success. Authorities in Japan, Turkey, Israel, and Armenia have acquiesced. Apple’s quest to own the IP rights of something as generic as a fruit speaks to the dynamics of a flourishing global IP rights industry, which encourages companies to compete obsessively over trademarks they don’t really need.
Apple did not respond to requests for comment.
Apple's attempts to secure the trade mark in Switzerland go as far back as 2017, when the Cupertino, California–based giant submitted an application to the Swiss Institute of Intellectual Property (IPI) requesting the IP rights for a realistic, black-and-white depiction of an apple variety known as the Granny Smith—the generic green apple. The request covered an extensive list of potential uses—mostly on electronic, digital, and audiovisual consumer goods and hardware. Following a protracted back-and-forth between both parties, the IPI partially granted Apple’s request last fall, saying that Apple could have rights relating to only some of the goods it wanted, citing a legal principle that considers generic images of common goods—like apples—to be in the public domain. In the spring, Apple launched an appeal.
The case now moving through the courts deals only with the goods for which the IPI refused the trade mark, which an IPI official said could not be disclosed without consent from Apple, because the proceedings are still pending, but which include common uses such as audiovisual footage “meant for television and other transmission.”
Mariéthoz says that the Fruit Union is concerned because there is no clarity on what uses of the apple shape Apple will try to protect and because the company has been very aggressive in pursuing things that it perceives as infringements on its trademarks. “We’re concerned that any visual representation of an apple—so anything that’s audiovisual or linked to new technologies or to media—could be potentially impacted. That would be a very, very big restriction for us,” he said. “Theoretically, we could be entering slippery territory everytime we advertise with an apple.
Over the past few years, Apple has pursued a meal-prepping app with a pear logo, a singer-songwriter named Frankie Pineapple, a German cycling route, a pair of stationery makers, and a school district, among others. The company fought a decades-long battle with the Beatles’ music label, Apple Corps, which was finally resolved in 2007.
An investigation in 2022 by the Tech Transparency Project, a nonprofit that researches Big Tech, found that between 2019 and 2021, Apple filed more trademark oppositions—attempts to enforce its IP over other companies—than Microsoft, Facebook, Amazon, and Google combined. Those companies also have trademarked common terms such as “Windows” or “Prime.”
Apple has precedent in Switzerland. In 2010 the trillion-dollar company got a small Swiss grocers’ cooperative to enter into an out-of-court agreement declaring it would never add a bite mark to its logo—a bright red apple inside a shopping caddy—something which, according to the cooperative’s president at the time, was “never planned.”
Things haven’t always gone Apple’s way, though. In 2012, Swiss Federal Railways won a $21 million settlement after it showed Apple had copied the design of the Swiss railway clock. In 2015, an existing “apple” trade mark in Switzerland, obtained by a watchmaker in the 1980s, forced Apple to delay the launch of its popular Apple Watch in the country.
Apple is asking only for rights over a black-and-white image of an apple. However, according to Cyrill Rigamonti, who teaches intellectual property law at the University of Bern, that might actually give it the broadest possible protection over the shape, allowing it to go after depictions in a wide range of colours. “Then the question [would be], is there a likelihood of confusion with regard to some other not-exactly-identical apple?” he says.
Irene Calboli, a professor at Texas A&M University School of Law and a fellow at the University of Geneva, says that in Switzerland, anyone who can prove prior history of using a disputed sign has protection in a potential trade mark dispute. That means it might be hard for Apple to enforce its trade mark on organizations that have used the apple symbol for decades.
However, she says, big, rich companies can often scare smaller businesses into compliance. “The system is very much skewed toward those who have more money,” she says. Just the threat of expensive litigation against a huge company like Apple can be enough to intimidate people and stop them from doing “something that might be perfectly lawful.”
Calboli says that the global trade mark business is self-sustaining. “Lots of people make a lot of money over these rights by registering them,” she says. IP rights authorities “are as guilty as the lawyers, because offices want revenues, so they issue registrations for stuff companies don’t need. That’s our trade mark industry.” Smaller companies, such as Switzerland’s apple growers, might need to learn how to work the system to protect their own assets, she adds. “We are dancing, and it is difficult to stop the dance. Since the system is like that, better that everybody uses it rather than just the big ones.”
A decision by the Swiss court will not be known for months, possibly years. For the Swiss apple growers, “millions” are at stake if they have to rebrand following a decision. “We’re not looking to compete with Apple; we have no intention of going into the same field as them,” Mariéthoz says, adding that one of the biggest gripes the 8,000-odd apple farmers he represents had with the attempted fruit grab was that, “you know, Apple didn’t invent apples … We have been around for 111 years. And I think apples have been around for a few thousand more.”