Watch the iSwatch against iWatch case

apple watchWill Apple and Swatch ever be friends again? The fight between the two began when Apple announced the iWatch. Swatch had already registered the trademark iSwatch and feared confusion between the marks.
Ultimately, Apple chose a different name, namely Apple Watch. But Apple was interested to learn how trademark offices would assess the matter and proceeded with the trademark applications for iWatch. Especially as Apple had filed the trademarks not for watches but for mobile communication devices. A clever trick? Unfortunately for Apple they gambled and lost in the UK, even in appeal.
The judge ruled that the mobile communication devices may very well include smart waches. So, the products are considered to be similar. Moreover, the judge found the trademarks similar as well. Interesting is paragraph 79 whereas the judge reacts on the arguments of Apple that the reputation of Swatch will avoid confusion:
“The applicant argues that the trademark meaning of SWATCH will help to avoid confusion with IWATCH. In my view, as put, that submission is wrong in law. This is because the CJEU has held that the more distinctive the earlier mark the greater the likelihood of confusion. Therefore, to find that an element of the earlier trademark is so distinctive that there is less likelihood of confusion goes against the case law of the CJEU.”
The chance that iWatch will ever be introduced as a trademark seems smaller than ever.

Knijff Merkenadviseurs

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