Cisco Lawsuit "Tenuous"
Apple, Oranges, and Sour Grapes
The current trademark infringement case filed by Cisco against Apple regarding the use of iPhone trademark is a terrific case-in-point for filing for trademark status within an accurate classification of the goods and/or services. A trademark is registered for protection for a particular good and/or service only. A trademark is issued within particular, well defined, categories or classifications of goods and/or services and not across all goods and/or services. In other words, identical trademarks can be issued under two totally different classifications and not infringe on each other.
In the case of the Cisco iPhone trademark, it was issued under IC 009 Electrical and Scientific Apparatus: The iPhone trademark owned by Cisco further defines the classification as "computer hardware and software for providing integrated telephone communication with computerized global information networks".
This is an entirely different classification than the trademark classification for a cell phone which would issue under IC 038 Communication which includes but is not limited to: Internet telephony services; voice over internet protocol services; cellular and mobile telephone services, and other wireless internet connectivity and media services; prepaid cellular, wireless, voice over internet protocol, mobile, and other multimedia wireless services; calling card and debit card services.
Ironically, the trademark of "XTREME IPHONE" is currently filed under the IC 038. COMMUNICATIONS classification with ownership identified as XTREME MOBILE LLC LTD LIAB CO NEW YORK 50 Main Street White Plains NEW YORK 10606
In any case, the Cisco trademark falls with in the class of computer hardware and does not preclude use of the iPhone trade mark for cellular phones. It is clearly a case of Apples and Cisco oranges. Or would that be "sour grapes".
Published by Sharon Cohen
Having dabbled in multiple careers and innumerable hobbies, I have finally realized that my greatest earthly endeavor is that of being a wife. I am an helpmeet - from the Hebrew work "ezer" - meaning to sur... View profile
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19 Comments
Post a CommentGreat article about a very complex legal point. I don't know enough to take a side but I wonder if ePhone is copyrighted. Maybe I could grab it up. I know that Oprah probably would sue me if I took oPhone, and Sony would if I took xPhone. I'm pretty sure I could get qPhone but I'm not sure if it's gramatically correct since it should be quPhone. I guess these legal points are above my head, so I'll be quiet now. :-)
I still get stuck with one big question - this product is called iPHONE - PHONE. A Phone is a communications device. Why was it not trademarked in BOTH classifications for phones and communication? 009 and 038? Please note: IC 009 covers the preponderence of goods and services related to phones including cell, cellular, mobile, digital, internet and video phones. IC 038 covers "communiation" by cell phones - not necessarily to the actual phone. WHY did Cisco file under IC 038 only? That is my biggest point here. They did not protect their Brand Name under the appropriate classification.
The problem with the trademark and patent office is that the staff is not able to keep up on the technology that they are trademarking and/or patenting. Any IT dork, such as myself, will tell you that "telephone communication with computerized global information networks" and "internet telephony services; voice over internet protocol services...and other wireless internet connectivity and media services...wireless, voice over internet protocol...multimedia wireless services" means the same thing. Cisco has a valid claim here. These two companies are in the same market place, it is not as if Cisco's iPhone is a carpet line or some other completely different product.
Mr. Chacon is spot on. Apple's got a very steep uphill battle and will pay dearly to settle this case. while your argument will keep the lawyers working on motions, and motino responses, the ultimate question the courts ask is whether there is a likeliehood of confusion that over the marks. seems to me that there is a strong likeliehood.
Apple also apparently recognized the value of Cisco's trademark, as it started negotiating with Cisco for the rights to use the iPhone brand as early as 2001 and was involved in negotiations as late as Monday night, according to Cisco.
nice try. while Apple has a number of defenses including the one you present, as well as "family of produtcts" related to the pre-fix "i", and cisco's failure to protect its mark. there is also the "reverse confusion" defense. In the end though, the fact that Cisco already has the mark, gives it an incredibly heavy presumption of ownership under the law. A presumption that will cost apple millions to overcome. look for a settlement on this case, as neither side wants to go to court.
I concede that Apple's iPhone is to a "small degree" a violation of the Cisco trademark. Cisco filed trademark under classification 009 - defined as "Class 9 (Electrical and scientific apparatus) Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), lifesaving and teaching apparatus and instruments;apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin operated apparatus; cash registers, calculating machines; data processing equipment and computers; fire-extinguishing apparatus. (Also, for CD-ROM's, computer hardware, software and related accessories.)" The iPhone may "tickle" that classification but ...
If the current information we have on the Apple iPhone is accurate to a small degree it is clearly a violation of the trademark. The iPhone is the very definition of a mobile computing device that also acts as a phone. The clearest proof of this is that it runs on OS X. Too bad for Apple lovers but Steve is just going to have to pay up.
... Oh yes! It's pithy as well
Sharon, the breadth of topics you write about never ceases to amaze me. This one has everything: good information; catchy photo; tintilating possibilities; and a touch of whimsy. Good job!