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Comparing Apples to Oranges

by Bruce Jobse

At one point or another, most of us have been accused of comparing “apples to oranges.” Well, that’s exactly what US Trademark Trial & Appeal Board (TTAB) did in reaching a recent non-precedential decision in Apple, Inc. v. Echospin, LLC. In their analysis, the TTAB literally compared the well-recognized design mark of Apple, Inc., shown below left, to the applied for design mark of Echospin, shown below right. Apple opposed registration of Echospin’s design mark alleging that the applied-for design is confusingly similar to Apple’s iconic logo for similar goods and services.

What do you think? Are these two designs confusingly similar?

There’s no mistake, the Apple design looks like an apple with a bite taken from it. The Echospin mark looks like, well…we’re not sure. John Welch, author of the TTABlog, probably the leading US trademark blog, described the appearance of applicant’s mark as “a butterfly landing on a donut with jimmies.”

Applicant Echospin argued that its design was not an apple, but an orange, designed to distinguish its products and services from Apple, as an alternative to or improvement over Apple. The Board construed applicant’s statement as an admission that applicant’s mark “is shaped like a fruit” and further noted the marks were “quite similar in concept and style, both being simple, abstract representations of fruit, rather than photographic pictures thereof.”

The Board found the Apple logo to be a famous mark noting that Apple “has shown significant market exposure, revenue, and overall fame amongst the relevant public.” When the goods and services associated with two marks are identical, as in this proceeding, less similarity between the marks is necessary for a finding of likelihood of confusion. So, given the broad scope of protection to which Apple’s famous mark was entitled, and enough similarities between the two fruit designs, the TTAB compared apples to oranges and found them confusingly similar and sustained the opposition in Apple’s favor.


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