Tables Turn at Hyperspeed

Lisa Shuchman

Corporate Counsel

11-01-2012

In September, just a month after Apple Inc. won a big victory in a lawsuit that accused Samsung Electronics Co. of infringing its designs, Apple itself was accused of appropriating the look of the Swiss Federal Railway's iconic clock for use in the iPad's new operating system.

The Swiss Federal Railway holds both the copyright and trademark rights to the clock, according to railway spokesperson Daniele Pallechi. Designed by Swiss engineer Hans Hilfiker in 1944, it's used in station clocks throughout Europe. "We were proud to see our iconic clock used by Apple," says Pallechi, "but we were surprised they did not contact us for permission."

The railway has notified Apple about its failure to obtain permission to use the clock design in the iPad's iOS 6 operating system, and is hoping that it can reach a licensing agreement with the Cupertino, California–based company, Pallechi adds. The Mondaine Group, a Swiss watch manufacturer, currently holds the exclusive license to make clocks and wristwatches based on the classic and minimalist design.

Apple didn't respond to requests for comment, but it appears that a third-party Swiss Railway clock app for the iPhone, iPad, and iPod Touch—sold by a company called Fegi—has been available on iTunes since 2009. The app's developer, Thomas Feger, says he obtained permission from Swiss Railway to use the image, "but Apple never contacted me before they put the clock in IOS 6."

The clock design, which has become a symbol for the Swiss proclivity for precision and punctuality, uses black dashes for numbers and a red second hand with a circle at its tip. So distinctive is the design, it was included in an exhibit at The Museum of Modern Art in New York in 2002.

"It is iconic and very important to us, Pallechi says. "It has come to be known worldwide as a symbol of the Swiss railway system." The design of Apple's clock app appears to be identical to the Hilfiker clock face. Pallechi says he can't comment on whether Swiss Railway might bring a lawsuit against Apple if talks fail, noting that the company hoped to "find a solution."

The Swiss railway and Mondaine could go after Apple for infringement on trade dress, claiming that the technology company's use of its clock face dilutes the uniqueness of its mark, says Christopher Carani, an attorney with McAndrews, Held & Malloy, who has no connection to any of the parties involved.

"Design is becoming increasingly important to companies—especially in a global market," he notes. "Companies are investing more in design because it transcends language, and they are therefore willing to spend more to protect it as a form of intellectual property."