GeekLawyer’s Blog

Geeklawyer had been very keen on the idea of this bit of hyped vapourware since he rather likes Apple toys. Or at least most of their toys, the iPod being an overpriced underspecced marketing triumph. The iPhone (version 1) left Geeklawyer a tad underwhelmed: more iPod than iMac. I mean, a smartphone one can’t add applications onto? No 3G? 8 Gigs memory?

Meh. Pass. For now anyway. Geeklawyer wants the waaay cooler, impending, Nokia N95.

Of more interest to Geeklawyer was the trademark spat with Cisco who own a trademark for iPhone. Apple has some problems:

if they succeed in killing the Cisco mark on anything other than its own facts they would endanger any later application of their own and Geeklawyer imagines they’ll wish to make some kind of application. There is some suggestion that this pending CTM application is a covert application from Apple using the pseudonym ‘Ocean Telecom‘.

Geeklawyer thinks that the word ‘phone’ is not inherently distinctive and is perilously close to, if not actually, generic. Whether the addition of an ‘i’ prefix is sufficient to make it factually distinctive is something that Geeklawyer would regard as dubious, at least in the absence of a compelling market presence. However Cisco appear to have managed it, so it is doable.

One allegation against Cisco, however, is that its trademark has been unused for 5 years. Like muscles, trademarks must be exercised if they aren’t to be exorcized. Oops then: cancellation for non-use seems a risk - and some bogus Cisco product relaunch probably wouldn’t save them; but that depends on whether Cisco filed intent to use affidavits, and if they’ve made some, albeit not continuous use; and it appears that they have, so they may be OK [however Out-Law seem adamant that there has been no use within the past 5 years which would radically alter my view].
Finally there is, Apple claims, a clear distinction in the minds of consumers between VoIP phones and cellphones. Geeklawyer thinks that buyers will have imperfect memories and a somewhat vaguer understanding of acronyms than geeks, and anyway most smartphones can do VoIP with the likes of a Skype client on the phone.

Geeklawyer reckons Cisco may have the edge here. Just if only because it seems to be the incumbent. But he won’t be putting any money on it.

Apple really really wants that trademark, and they say that where there’s a will there’s a way.

Geeklawyer says that where there’s a will there’s a corpse.