Its #IPThursday again good people! This week we go through the story of how two brothers “stole” some trade marks belonging to Apple Inc. This is all about the little ways of exploiting trade mark law.

If you’re familiar with these threads, you know we start from the very beginning. The year is 1976, in a garage somewhere in a California surbub, three men Steve Jobs, Steve Wozniak and Ronald Wayne.

The three tech geeks wanted to create a computer. Wozniak or Woz, as they called him was slightly ahead of the curve. He hand-built the first computer, the Apple 1. So in order to fund this project, they all committed to selling some personal assets.

Jobs sold his VW (yes Steve Jobs drove a VW, just saying) and Wozniak sold his.... calculator to invest n the Apple 1. In July 1976, they released the first prototype.

However soon after, Wayne sold his shares to Jobs & Wozniak just 12 days after founding the business. They incorporated Apple Computer Inc. without him. He sold it for about $800. He also forfeited any future claims for $1500. Imagine!

In 1980, Apple went public and long story short, Apple Inc has become one the leading tech companies in the world. Through its products such as the iPhone,MacBook and iPad, It is now worth over 1 trillion USD.

Sometime in 1981, Woz was involved in a plane crash which left him injured and traumatized. Up to this point, he’d been at the forefront of everything Apple did. However, the trauma of the crash forced him to take a backseat and Jobs took over.

Woz tried to come back but he was unhappy with the direction the company was going, so he sold most of his stock and left in 1985. This left Steve Jobs as the remaining founder.

Jobs oversaw the growth of Apple to a Tech giant. He is one of the most famous people to ever live and he helped make the Apple brand even more famous. Since his passing in 2011, his name has been synonymous with the Apple brand.

Jobs is also famous for his dress style, he almost always used to wear jeans, never a suit. Steve Jobs actually wore Jeans at his wedding. Sidenote: I wonder if my future wife would let me do this, jeans and a t-shit . Anyways, this will be NB later.

Apple does not mess around when it comes to protecting its IP, so they registered hundreds of trade marks for its name and logos all over the world. But it does not matter how diligent you are, at times people will find gaps in your IP strategy.

This brings us to the stars of our story today, two brothers from Italy, Vincenzo and Giacomo Barbato. I don’t know their history, but I do know that these gents are professional trolls. I can be a troll, but these guys are absolute legends at it.

In 2012, about a year after Steve Jobs died, the two brothers were in the process of starting their own clothing brand and they were looking for a name that would grab people’s attention.

They decided to do a quick check on the EU trade marks database. They realised that Apple had never filed trade marks for the name “Steve Jobs”. And so the two brothers decided to go with that name, Steve Jobs Jeans. They applied to register Steve Jobs as a trade mark.

This obviously did not sit well with Apple and it was probably annoying more than anything. Apple tried to oppose the application on the basis that the brothers were taking advantage of their unregistered trade mark.

Quick note: if you have not registered your trade mark, you can still oppose a trade mark that is similar to yours if you can prove that you have a reputation in that name. Its not enough to say the name is associated with you, you need to actually use it in trade.

The EUIPO dismissed Apple’s case. Apple itself as a company has no Steve Jobs product, they do not trade under the name Steve Jobs and it would be difficult to bring a solid case under trade mark law. Remember, you can not acquire rights to a name you do not use.

However, if Apple thought the Barbato brothers were done, they were in for a huge surprise. The brothers chose a logo which was similar to the Apple logo. Except, this logo was a J which had been bitten and had a leaf....like an Apple. They then applied to register the logo.

Apple took action again, they felt they had a proper case this time. Apple opposed the application and claimed that the J used by these brothers on their jeans was similar to their Apple Logo. They felt they had a strong case.

This came before the Swiss Federal Court, it had to decide if the two trade marks were similar and if people would be confused by the two.

The court held that the two marks were not similar. The reason was that we need to consider the overall meaning conveyed by the marks in addition to their visual similarities.

So you can bite an apple, but you cant bite a letter J, so the marks are different. One is a bitten fruit, the other is just a weirdly shaped letter.

The court said that the two shapes are also totally different. Apple’s case was dismissed and the Barbato brothers won again.

I have no doubt that they chose the name and logos on purpose, but most lawyers say that this is the correct decision and I’d love to hear your thoughts! They did take advantage of Apple’s brand, but they didn’t go too far.

I also think it would have been different if they were selling computer products (which they intend to do in future). If they started selling phones with that same logo, then the story may have been different. But what are the odds that people think Apple are now selling jeans.

At first glance, I felt they were very similar, but when you actually analyse them the logos themselves are very different. You wouldn’t think its an Apple product with that logo.

Although what the Barbato brothers did is distasteful, it is not entirely wrong under trade mark law. They could still face issues from the Steve Jobs estate for using his name without consent, but under trade mark law, they found a gap and took it.

Big Lesson: If you have a name or logo that is important for your brand, make sure you register it. Someone is always looking for gaps and ways to exploit your IP.