As reported by The Huffington Post, the U.S. Patent and Trademark Office has rebuffed an attempt by Apple Inc. (“Apple”) to register a music app icon logo featured prominently on its iPad and iPhone devices. The disputed logo consists of two musical “eighth” notes connected by a beam against an orange square background with rounded corners.
Apple applied to register the logo in 2010 for “computer software for use in reviewing, storing, organizing, and playing pre-recorded audio content, sold as a feature of handheld mobile digital electronic devices . . .” Apparently unbeknownst to Apple, a similar logo was registered in 2008 by the now defunct iLike, Inc., which was subsequently acquired by Myspace, LLC (“Myspace”). Myspace allegedly owns the rights in the iLike registration and trademark.
The Trademark Examining Attorney (“Examiner”) refused registration of Apple’s trademark on grounds of likelihood of confusion with the Myspace trademark. The Myspace trademark also consists of two musical “eighth” notes connected by a beam against an orange background. The Myspace registration covers “providing temporary use of nondownloadable software for adding music and video to profiles on the internet, for listening to MP3’s and for sharing MP3’s and music playlists with others.”
Apple appealed the Examiner’s final refusal to the Trademark Trial and Appeal Board (“TTAB”). On appeal, the TTAB rejected Apple’s argument that the Apple and Myspace marks are dissimilar in many respects, noting that “what would be remembered [by consumers] is a musical note in an orange rectangle.” The TTAB found that the basic similarities in the marks outweigh any differences that might be apparent upon side by side viewing.
The TTAB also rejected Apple’s argument that the parties’ goods and services are different. Apple applied for computer software in a “goods” class, while the Myspace registration is for “providing temporary use of nondownloadable software” in a “services” class. Nevertheless, the TTAB concluded that Apple’s software and registrant’s services (i.e., providing software) were related because they performed similar functions, namely, controlling digital music, and they are commonly provided by the same companies.
Furthermore, the TTAB rejected Apple’s argument that consumers of its products are so sophisticated that they would be able to distinguish between Apple’s goods and the services offered by Myspace. The TTAB reasoned that consumers may not exercise the same degree of care when acquiring applications as they do when purchasing Apple’s devices.
Apple, if it chooses, may appeal this decision to a federal district or appellate court.
Given this decision, one must wonder whether Myspace has any intention of pursuing Apple for trademark infringement. Apple has sold millions of devices that incorporate a logo that the TTAB found would likely be confused with the Myspace trademark. While the TTAB’s ruling is not precedent that could be relied upon in a subsequent action, it is nevertheless an indication that Myspace may be able to prove a likelihood of confusion. On the other hand, the fact that the parties’ marks have co-existed in the marketplace since 2007 would potentially weigh against a finding of consumer confusion.
