Apple vs. Prepear App: likelihood of confusion?

Apple is taking consistent action against possibly similar signs: it has now become known that Apple is taking action against the Cooking App Prepear of a small business for alleged confusion between the Apple logo and the App logo – a stylised pear.

Apple vs. Prepear

The quite new Cooking App Prepear wants to be a help for cooking and suitable shopping for it. Accordingly, the company has chosen the name Prepear and designed a suitable logo. Prepear, as the Cooking App is called, is a combining the English word “prepare” and the English “pear”. The logo therefore shows a stylised pear.

Although only a very small company is behind the Cooking App Prepear, this logo directly called Apple to mind. The famous technology and smartphone manufacturer is always on the lookout for new trademark applications that could possibly imitate its own world-famous design with the stylised apple in some way. This is also the case with the stylised pear of the cooking App Prepear. Apple claims a likelihood of confusion and even suspects that the stylised pear logo is a direct copy of the Apple logo.

Whether the small company Prepear will engage in lengthy trademark infringement proceedings in this case is still open, but this example shows once again how consistently Apple defends its own trademark.

Comparison of apples with pears limps

The comparison of apples with pears, or rather a stylised pear against the stylised apple from Apple, is not new. In January 2019 Apple lost in such a case before the European Court of First Instance (CFI) against the Chinese company Pear Technologies Ltd, based in Macao (China). The case concerned an application for an EU figurative mark in the shape of a stylised pear, which also claimed the same goods and services as Apple’s trade mark, including computers, laptops, digital marketing, software and data management.

However, apples and pears are not comparable, the CFI held. Apple lost the trade mark dispute as regards the similarity of the two marks.

Apple also argued in this case:

a link between the marks at issue
the likelihood of taking unfair advantage of the distinctive character or the repute of the earlier mark
and the existence of an important reason for using the mark applied for

However, the reputation of an earlier and famous mark is not a relevant factor in assessing the similarity of conflicting marks. It is only where there is a similarity in principle that the reputation of the earlier mark becomes relevant to the assessment of whether there is a link between the conflicting marks.

Would the KochApp Prepear stand a chance in court?

The question, if the KochApp Prepear stood a chance in court, can only be answered speculating. As a general rule, the similarity of the marks in dispute is always examined first in order to determine whether there is a likelihood of confusion, and this includes visual, phonetic and conceptual aspects. Would a court rule on similarity between Apple and Prepear or Apple and Pear in this respect? At least in the case of the stylised pear from China, no similarity was found by the CFI.

Nor does the fact that both marks use graphic stylisation increase the likelihood of confusion between the marks. Graphic stylisation is not distinctive, the CFI found in the comparison of two figurative marks containing the letter B and a stylised laurel wreath, which were found to be clearly similar, but without likelihood of confusion.

In any event, the micro-enterprise Prepear has not yet shown itself to be be beaten and has initially launched a petition via Change.org. The outcome Apple against Prepear is still open.