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iPhone Oddsmodo: The Chances Cisco will Destroy Apple in Court

This image was lost some time after publication, but you can still view it here.
This image was lost some time after publication, but you can still view it here.
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I guess it's only appropriate to throw up an Oddsmodo while the Gizmodo team is busting our asses in the city of sin. So ... the news of Cisco suing Apple only broke a couple hours ago and our tech-friendly bookmakers at Bodog already have some lines going. You can wager you hard earned dollars on:

• Will Apple Inc. (AAPL) stock close with a value of 110.00 or more by June 15th, 2007? (Yes: -140, No: EVEN)
• Will Cisco win their lawsuit against Apple Inc. over the "iPhone" trademark? (Yes: +500, No: -105)
• Will Apple Inc. be forced to change the name of the iPhone due to Cisco's trademark? (Yes: +500, No: -900)

Our take? The bookmakers are favoring Apple heavily in having to change the name of the iPhone, but it favoring Apple only slightly winning the lawsuit. It just depends on how serious Cisco is about this, their iPhone stuff that they acquired (and are protecting with this lawsuit) isn't too spectacular and I'm not sure it is something worthy spending million fighting Apple for. Then again to make some good money on a bet like this, take the long shot and hope Cisco stays stubborn and forces Apple to change the name.

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Business/Financial Props [Bodog]

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DISCUSSION

I think there are a couple things people should understand about Trademarks in the US. While my training is in Canadian TM Law, most of the principles should carry over.

1) A Trademark really serves 2 purposes. Primarily a Trademark is used as a single source identifier. That is, the Trademark in the eyes of the public is seen to be from a single "company" (source). The second is an indicator of quality. That is not to say what level of quality, but that all goods (or services), associated with the Trademark are of the same quality. For a company, a Trademark registration gives them certain measures of protection as well, such as the right to exclusive use of the granted Trademark - but we can skip that for now.

2) A Trademark only gives the Trademark holder protection for the goods and services under which the Registrar approves the application. Why is this important? A strong case can be made (and this appears to be one of Apple's angles), that the category under which Cisco's Trademark was approved does not grant them the right to exclusive use to the name "iPhone" with regards to cellular phones (and some others - again, skipping).

So now to the bread and butter. Apple can, and appears to be willing to fight Cisco on this. They will try to distinguish their mark from Cisco's. Other factors that come into play are know as "channels of trade." Meaning, who, what, and where the products are sold, and often taking into account the level of sophistication of the consumers. Apple will undoubtedly try to show that there is no confusion between Cisco's iPhone and Apple's iPhone in the eyes of the consumer (which is what counts). In short, I forsee Apple saying "our iPhone is different (legally) than your iPhone." Another attack likely to be seen if this makes it to the courts, is that there are several applications for the mark iPhone in similar categories of goods. While only the InfoGear applications appear to be approved, this doesn't prevent common law rights (someone has been using the Trademark without registering it, then maybe later decides to try to register it). As Trademarks need to function as source identifiers, having multiple Trademarks or applications on file for the same or essentially the same Trademark could actually weaken Cisco's rights to the use of iPhone - as the mark is inherently not distinct if it is commonly used. This is especially true if it can be shown that these products have co-existed in the marketplace without confusion to the consumer.

All of this could be a moot point. The other reason I believe Apple could have gone on with the iPhone name is simple legal manuvering. Intellectual Property lawsuits are often lengthy and expensive (first you can fight with the USPTO over the validty of a Trademark, then you can appeal etc etc... finally landing in an actual court room... someday). This could be Apple's way of convincing Cisco to give them a better deal, or simply to sell the iPhone Trademark alltogether to Apple.

Sorry for making this post so long, it's actually a field I'm interested in. I may have over simplified, I did leave some information out for the sake of not boring anyone to death. I hope this gives you a glimpse into the "Exciting" world of Trademarks. :)

http://www.uspto.gov — US Patents and Trademarks Office (Pretty much everything you would ever want to know about Trademarks)

http://tess2.uspto.gov/bin/gate.exe?f…

This is the easier of the forms to use for searching. Try things like "i phone" , i-phone, *iphone*. Enjoy!