Top Gun copyright claim and “Think Different” case

TOP GUN 

The movie “Top Gun: Maverick” was released in May. The derivative sequel of the 1986 Tom Cruise movie “Top Gun” raised 100 million USD during the first weekend. Early this month, the producer Paramount Pictures was sued for copyright infringement over the sequel.  

The lawsuit was filed before the U.S. District Court for the Central District of California by the heirs of Ehud Yonay, the author of the article “Top Guns” which was published back in 1983, and that inspired the first “Top Gun” movie. 

Paramount held that they had exclusive motion picture rights to the “Top Guns” story. Conversely, the lawsuit reads that Paramount did not have the rights to use Yonay’s story to create the movie sequel, as notified in 2018 by Yonay’s heirs. The plaintiff claimed that the licence granted to Paramount expired in May 2020, as the US Copyright Act provides for the possibility of termination of a copyright assignment at the end of the 35^th year after it was granted. 

For this reason, Yonay’s heirs are now requesting an economic compensation for the damages, some profits from “Top Gun: Maverick” and to prevent Paramount from distributing the film or produce further sequels. 

We will be waiting for the outcome of this interesting case! 

The “Top Guns” article can be found here. 

THINK DIFFERENT 

Apple Inc., had been using the slogan “Think Different” for their advertising campaigns, from 1997 onwards. The dispute arose when Swatch used "Tick Different" as a slogan in a campaign.

In 1997, 1998 and 2005 Apple Inc., obtained 3 different registrations for the word mark “Think Different” as a European Union Trade Mark (EUTM). Registrations were granted for class 9 (concerning IT products). 

In 2016, Swatch AG filed three applications for revocation of the above mentioned EUTMs before the Cancellation Division of the EUIPO, alleging the lack of genuine use of those EUTMs for the goods concerned, for an uninterrupted period of five years, following the filing of the applications for revocation. 

The decisions by which the Cancellation Division revoked the contested EUTMs in respect of the goods concerned, were later appealed before the Boards of Appeal (BoA). The BoA dismissed the appeal and confirmed the decisions issued by the Cancellation Division. 

Apple lodged an appeal against this decision before the General Court (GC).

The GC held that the evidences submitted by Apple did not prove the genuine use of the trade marks for the goods concerned in the relevant period of time - i.e., five years before the applications for revocation were filed. In fact, ten-years-old press articles were not considered by the Court as suitable evidences to demonstrate the genuine use of a trade mark during the relevant period.  

In the second place, Apple claimed that the slogan was present on the label affixed to the package of their iMac laptops, and therefore the high level of attention of the relevant public and the sales figures should be taken into account by the Court. The GC stated that Apple could not demonstrate the high level of attention of the relevant public when examining the packaging. Moreover, the evidences submitted by Apple only showed the sales figures at a worldwide level, not the sales throughout the relevant territory of the European Union.  

In the third place, the GC considered that the terms “Think Different” had a weak distinctive character, a statement that Apple was unable to refute with the evidences submitted to prove genuine use. 

The GC dismissed the appeal lodged by Apple, thus confirming the EUTM revocation decision issued by the BoAs.