Swatch makes Swiss watches. It sells them at Swatch stores, many in malls. The chronometers come in many styles. They cost $100 and up. Young people like them. But you can’t take the body of one Swatch watch and pop it on another Swatch wrist band.
You can do that very thing with Swap watches. Beehive makes them. The time-keeper part costs anywhere from $10.95 all the way up to $10.95. The fake gem-bead-chain-clasp combo that attaches to the small clock span a like range, going for between $6.95 and $6.95. Blawgletter thinks they look cute.
(Beehive also produces Rain Bops, a funky type of plastic “rain boot”; they run $16.99 the pair.)
Do you see where all this leads? A trademark fight, you say? A scrappy but low-dollar Swap making a nutty claim against those noble Swiss who use tiny tools to sculpt works of art for your wrist?
We must say nein, non, no, and na (in the four official languages of Switzerland). It went the other way. Swatch sued Swap.
Swatch lost. It did so because (as the Fourth Circuit held) no normal person would confuse a Swap watch with a Swatch one. Its suit failed also because it argued that “SWAP” simply described the product and therefore didn’t deserve a trademark when in fact the “SWAP” mark makes your brain tingle a little as it leaps from the literal meaning of the word to grasp how it relates to the switching between the glitzy wrist bands and metal watch bodies. That brain tingle makes a mark “suggestive” instead of merely “descriptive” and thus worthy of greater trademark law oomph. Swatch AG v. Beehive Wholesale, LLC, No. 12-2126 (4th Cir. Jan. 6, 2014) (http://www.ca4.uscourts.gov/Opinions/Published/122126.P.pdf).
“Arbitrary” or “fanciful” marks like Apple, Exxon, and Kodak win the most trademark protection; suggestive ones such as PetsMart, Blu-ray, or (as we now know) Swap come in second; and descriptive and generic ones bring up the rear. See http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm.