On Wednesday Apple filed a trademark opposition against Propaganda Gold’s application for the THINK DIFFERENT, AGAIN mark before the Trademark Trial and Appeal Board claiming that there is a likelihood of confusion between its THINK DIFFERENT mark and the applicant’s mark, and consequently, that Apple will be harmed by the registration of the applicant’s mark.
Apple claimed that it has used the THINK DIFFERENT mark since 1997 when it was used in “an iconic marketing campaign … with a television advertisement … narrated by actor Richard Dreyfus and illustrated with motion pictures depicting such famous innovators as Maria Callas, Albert Einstein, Jim Hensen, and Pablo Picasso.” The advertisement stated, “Here’s to the crazy ones. The misfits. The rebels …” Moreover, Apple claimed that this advertising campaign “has won numerous awards,” and it “has been described as ‘the most famous tagline in Apple history’ and ‘part of Apple’s DNA.’”
According to the opposition, the tagline is still used and associated with Apple and its products. The tech giant averred that it used this mark before November 2019 when Propaganda Gold filed its application and that its registered marks “constitute prima facie or conclusive evidence of Apple’s exclusive right to use the registered marks in connection with the goods and services specified in the registrations.”
The applicant’s THINK DIFFERENT, AGAIN request was filed under Class 38, which covers telecommunications and transmission of media over the internet, broadcasting or other networks and Class 42, which covers online software for communication, including community forums. Apple claimed that the applicant’s “specified services are identical, closely related, or complementary to goods and services offered by Apple under its THINK DIFFERENT mark and other marks owned by and associated with Apple.” For example, Apple stated that it offers computers under its specified mark and broadcasting services under its other marks, such as APPLE MUSIC and APPLE TV. As a result, Apple argued that the similarity in marks, products and services are likely to cause confusion and consumers are likely to mistakenly assume that there is an association between these marks, goods and services.
Apple noted that “a key consideration in the selection of THINK DIFFERENT was that the phrase is grammatically incorrect, creating a distinct and memorable consumer impression,” for example, a grammatically correct phrase would be “think differently.” Additionally, according to Apple, Propaganda Gold “presents its THINK DIFFERENT, AGAIN mark using practically identical stylization … and color to mimic Apple’s iconic presentation of its THINK DIFFERENT mark.” Apple contended that “it cannot be mere coincidence that Applicant’s Mark wholly contains Apple’s uniquely grammatically incorrect THINK DIFFERENT mark and Applicant’s presentation mimics Apple’s iconic presentation.” Moreover, Apple claimed that the “Applicant’s Mark is confusingly similar in appearance, sound, and commercial impression to Apple’s THINK DIFFERENT mark.” Both contain in part or in whole the term, THINK DIFFERENT; the applicant “merely adds a comma and the word ‘AGAIN’ to Apple’s THINK DIFFERENT mark.”
Apple has sought for its opposition to be sustained and for the registration to be refused. Apple is represented by Kilpatrick Townsend & Stockton LLP.
