Apple's argument that
Cisco's claim to the name iPhone is "silly" is about to get a whole lot more cogent. Although they hold the trademark, it's still seemingly debatable whether Cisco has rights to the name. Eagle-eyed reader mrsalty points out the fact that Cisco's patent filings for the "
Internet telephone" (and at least
two others) reference the iphone name and attribute it to the Cidco (a company now owned by Earthlink); the fact that the filing reads with the following language is even less encouraging. "Also known [to Cisco at the time of filing the patent] is a dedicated 'Web phone,' such as the iphone, manufactured by Cidco..." Yikes. It's difficult to tell whether this iphone predates Cisco's acquisition of the patent holdings originally filed by
Infogear in 1997, but prior art is prior art, and they admitted as much right in their own patent filing. What's more, the The Internet Phone Company has owned and operated iphone.com since 1995, and we don't see Cisco suing them, either. So basically we really hope this whole thing will be quick and painless since we don't think anyone really wants another
RIM vs NTP saga on their hands. Things will get very interesting, however, if it works out such that the iPhone name is released to the commons and everyone and their mother can make an iPhone. (Sony Ericsson
aiPhone or Motorola IFON, anyone?) Our advice to the people Behind the Human Network: focus on that human network of yours and let the iPhone go, kid.
Update: As some readers have pointed out, yes, a trademark is different from a patent. Our intention is to address Cisco's irregular legal activity that favors other companies using the name iphone, but not Apple. Does Cisco hold the trademark? Yes, it would appear that way. Will Cisco's lack of protection of this trademark hold up in court? We'll have to wait and see, but something tells us Stevie J. wouldn't have gotten up on stage with "iPhone" if he wasn't damned sure they'd be able to use and keep this name.
posted January 12th 2007 12:04PM
You can't apply patent principles to trademark law. Two different regimes founded on two different sets of laws. Federal registration of a trademark is NOT required for enforcement.
You're correct in the fact that trademark law and patent law are two very different things.
That being said...a trademark can be invalidated due to common useage.
That is true, but common usage is not prior art. In fact, common usage is basically the opposite of prior art--it's something that comes AFTER the introduction of the trademark that kills it (e.g., nobody called aspirin aspirin before Bayer introduced it under that mark). Quite frankly, with as stupid as trademark law assumes the average consumer is (if Homer Simpson wouldn't understand it, you can bet it will be at least distinctive), I doubt any court would find IPHONE to be generic or merely descriptive ab initio...what is it? Is it an Internet phone? An international phone? Maybe an invisible phone?
Further, since trademarks are specific as to a single source of goods or services, it isn't dispositive of the issue to say that "iphone" is generic or merely descriptive of some goods and services. It would have to be generic or merely descriptive of CISCO'S goods and services for it to be invalid.
All this is mute as Apple came to Cisco with offers prior to the announcement. This basically means Apple has already recognized Cisco's hold on the trademark. Apple has frequently suffered various forms of foot in the mouth disease, this is no different.