Will the Real “iPhone” Please Stand Up

I commented yesterday about the apparently great usability of Apple's just-announced iPhone, and now I have to ask “Apple, are you idiots?”

Someone else has had tha “iPhone” name trademarked for six years:

Of course, that someone sued Apple over it.

Apple, splitting the most infinitesimal hairs, said that because Apple's product is for a cellular phone and the current “iPhone” offerings from Cisco are VoIP (i.e. “internet phones”), Apple is not in violation because “they're different products.”

I'm not a lawyer, blah blah blah, but isn't this exactly what trademark law is designed for?

Quoting from this article....

The touchstone of any trademark infringement case is the likelihood of confusion — that is, the alleged infringer will be prohibited from using a trademark on a competing product if that use causes a likelihood of confusion in the mind of a relevant purchaser.

Courts have set forth a number of factors for determining the likelihood of confusion, such as the closeness of the appearance, sound, and meaning of the conflicting marks; the relatedness of the goods on which the marks are used; the channels of commerce in which the marks are sold; and the sophistication of the relevant purchasers of the goods.

From what's been made public, I can't see how this is anything but outright attempted theft by Apple. Considering that Apple's been asking Cisco for permission to use the “iPhone” trademark for years, Apple's use of it without permission would clearly be considered “willful infringement,” which opens Apple up to treble damages.

Apple's one saving grace (besides deep pockets that can be used to buy its way out of this mess) may be that Cisco has not aggressively defended its iPhone trademark in the past, thereby creating an environment in which that trademark can be stripped. I gathered this might be Apple's angle because it's reported that an Apple spokesman said “There are already several companies using the name iPhone for voice over IP products.”

Still, it seems so clear cut that Apple is wrong that I have to wonder if it's all some kind of publicity stunt... a way for Apple to rename it “Apple Phone” with great fanfare, or something.

I'm sure nothing major will come of this... Apple will go ahead and license the name from Cisco (albeit under slightly better terms for Cisco than had they completed the agreement before making Apple's product public), and it'll all be forgotten.


All 3 comments so far, oldest first...

Trademark # 75076573

For use in G&S (Goods and Services) “computer hardware and software for providing integrated telephone communication with computerized global information networks.”

It’s definitely a broad-reaching enough definition that Cisco has a pretty decent chance of making it stick, however, Apple could make a counter-claim that their telephone communications *aren’t* “integrated..with computerized global information networks” (as Cisco VOIP are, traversing the Internet or other computer networks), but are instead traversing the regional cellular networks, which are a completely different transport medium.

So yes, it was a completely gimp move on Apple’s part to do it, but it isn’t *quite* as clear-cut as it might seem at face value.

— comment by Derek on January 11th, 2007 at 11:14pm JST (10 years, 11 months ago) comment permalink

Hmm, given that you are an Apple stockholder and I am a Cisco stockholder, maybe you should just pay me my share directly.
🙂

— comment by Michael Friedl on January 13th, 2007 at 5:07am JST (10 years, 11 months ago) comment permalink

Derek,

Except that the standard for trademark infringement is whether it would create confusion for the “typical consumer”. I doubt the court would find that the typical cell-phone buyer would pay that close attention to the transport medium.

— comment by Sam on January 15th, 2007 at 9:11pm JST (10 years, 11 months ago) comment permalink
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