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Old 12-18-2006, 08:52 PM   #61 (permalink)
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Quote:
Originally Posted by Fungineer
And which means that no competitor will be able to call device a Capital-B-l-a-c-k-Capital-Something-Something, one word, as well as likely Capital-Something-Something-Capital-B-e-r-ry. Like RedBerry, for instance.
That's a "yes" answer, according to the question I was asking.

Quote:
Originally Posted by GMK
DallasFlier said, "If RIM should win this case, will or will not the direct result be a "de-facto" trademarking of the word "black" with respect to the entire cell phone/PDA/smartphone industry segment -"

One word answer: Will!! If RIM prevails, who in their right mind would name a similar looking smartphone black anything or anything berry, etc, etc. Not by order of the court or anything so dramatic, just common sense.
Thanks, Fungineer and GMK, for being willing to at least answer the question that I still insist SanFran worked so hard to avoid answering with long-winded legal arguments.

At least we now agree on something - that this would effectively enjoin all phone/PDA manufacturers from using the word "Black" in terms of "Black[Anything] for a phone. We may not agree on whether that's right or not, but at least we agree that would be the effective result of a RIM win here. (And I suspect SanFran agrees too, but was unwilling to simply admit that that would be the outcome.)

Quote:
Originally Posted by GMK
We're on opposite sides of the opinion table on this issue but I'd go you one step further or earlier as the case may be. I think Samsung falls into the "who in their right mind" category even before the suit was filed.
Let me step back even further then, and say I think RIM may have been guilty of "who in their right mind" long before that, by choosing such a combination of such VERY common words as a basic color! That, to me, is probably the original "who in their right mind" in this case. And that's the crux of the matter to me. I don't think ANY company should be allowed to get an effective trademark on exceedingly common, everyday words. If they were worried about that, then they should have been just a *bit* more creative and intelligent in their original naming of the device. Kleenex and Xerox are great examples - I can't imagine any way that any other manufacturer could imitate those names without it being instantly cut and dried what they were up to. And if some company were to try to clone similar monikers to THOSE names, I'd be TOTALLY on the other side of the argument. Shame on RIM years ago for not being more creative in their naming and coming up with something clearly and unambiguously unique like those names. As a matter of basic principle, I just don't think that its right, for instance, that a company couldn't make a smartphone with a short antenna sticking out the bottom for some good reason and decide to call it a "BlackCat."

Quote:
Originally Posted by GMK
Most, if not all other forums and blogs are pretty much outraged at RIMs outrageous claim. Man, am I in the minority.
And that, as I believe you yourself pointed out earlier, is just ONE of the risks that RIM is taking here. Whether winning at trial while at the same time losing large in the court of public opinion is a good thing or not is certainly debatable, I'd say.

And the OTHER major risk they face, as SanFran himself pointed out, is what appears to me to be a case that Samsung's attorneys should make sure to cite as potential precedent - where a Judge made it known to Microsoft that if they continued to pursue their case against "Lindows" that they would find themself with a precedent-setting opinion stating that "windows" was a word that was entirely too common and widespread to be due any protection or trademark rights. They'll sure have egg on their face (and a hole in their bank accounts) should they get a Judge who thinks similarly to the one Microsoft faced in that case.

Again - thanks to both of you for answering the simple question I had repeatedly asked and SanFran had repeatedly avoided - at least it gives ground for continued discussion.
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Last edited by DallasFlier : 12-18-2006 at 08:56 PM.
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Old 12-19-2006, 01:31 AM   #62 (permalink)
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Quote:
Originally Posted by DallasFlier
At least we now agree on something - that this would effectively enjoin all phone/PDA manufacturers from using the word "Black" in terms of "Black[Anything] for a phone. We may not agree on whether that's right or not, but at least we agree that would be the effective result of a RIM win here. (And I suspect SanFran agrees too, but was unwilling to simply admit that that would be the outcome.)

And the OTHER major risk they face, as SanFran himself pointed out, is what appears to me to be a case that Samsung's attorneys should make sure to cite as potential precedent - where a Judge made it known to Microsoft that if they continued to pursue their case against "Lindows" that they would find themself with a precedent-setting opinion stating that "windows" was a word that was entirely too common and widespread to be due any protection or trademark rights. They'll sure have egg on their face (and a hole in their bank accounts) should they get a Judge who thinks similarly to the one Microsoft faced in that case.

Again - thanks to both of you for answering the simple question I had repeatedly asked and SanFran had repeatedly avoided - at least it gives ground for continued discussion.

Wait a minute. With all due respect, did I not just read your words that you were AGAINST RIM in this law suit case? Let me get your "correct wordage".

Quote:
Originally Posted by DallasFlier
They (RIM) may be able to, but I totally disagree with them (RIM) being able to do that.
Quote:
Originally Posted by DallasFlier
To summarize, I have a pretty strong philosophical opinion that RIM should not be allowed to, in essence, trademark the word "Black" with respect to any phones or PDA's. That's what a victory for RIM would amount to here. I simply don't believe that's right and I agree with the previous poster - I hope RIM loses!
You sir, need to get your priorities straight. Now, you yourself do own a phone produced by Blackberry and should support RIM (as SanFran stated), but you stated TWICE, that you were against RIM, and that they should lose. Sounds to me like you are acting similar to our former candidate who ran for the Presidency position.

Next thing to address, the concern regarding Samsung's "hole in their bank accounts". Samsung has deep pockets. Samsung not only produces and markets phones, but tvs, home phones, printers, refridgerators, camcorders, home theatre audio, microwave, laundry products, air conditioning, etc. I think another reason RIM is suing is because Samsung can afford it. Several million dollars is nothing to Samsung.

I can't wait to hear what else other people have to contribute to the discussion.

Last edited by BMWLotAttendant : 12-19-2006 at 01:34 AM.
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Old 12-19-2006, 01:51 AM   #63 (permalink)
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Good Lord, trying to contort BBF posts as agreement with your position is pathetic. You really should stop talking to yourself. If it makes you feel better, I hereby appoint you BBF's judge, jury and executioner, all rolled into one.

Bonus Slap: The Windows case was not the same as the RIM vs. Samsung. If it was, don't you think the lawyers for RIM would phrase and tailor the complaint so not to end up in the same pickle? Do you even know where the Windows case was litigated and where the RIM case is pending? You might want to look into that before answering my first question [which was more rhetorical than a question to you].

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Old 12-19-2006, 02:33 AM   #64 (permalink)
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RIM's lawyers are not mental slobs.....


Last edited by SanFrancisco : 12-19-2006 at 02:48 AM.
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Old 12-19-2006, 02:46 AM   #65 (permalink)
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Quote:
Originally Posted by DallasFlier
That's a "yes" answer, according to the question I was asking. Thanks, Fungineer and GMK, for being willing to at least answer the question that I still insist SanFran worked so hard to avoid answering with long-winded legal arguments.
Uh... isn't the issue and topic of this thread "legal." So "legal arguments" are proper.

Maybe you should read this to understand one aspect of the RIM case.

http://www.heartinsanfrancisco.com/t...rkdilution.pdf

Last edited by SanFrancisco : 12-19-2006 at 02:49 AM.
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Old 12-19-2006, 03:18 AM   #66 (permalink)
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Read and weap. This is what it is all about.

From the Columbia Law Review of Trademark infringement.

Quote:
A. Distinctiveness Determination from Message Receivers' Perspective

Trademark terms are "interpreted" from the perspective of the relevant class of consumers. The perspective of trademark distinctiveness falls squarely on the message receivers (buyers). The classic formulation of the genericness inquiry is "[w]hat do the buyers understand by the word for whose use the parties are contending? . . . It makes no difference whatever what efforts the [mark holder] has made to get them to understand more." 96 The inquiry rejects a perspective shift from message receivers (buyers) to message sender (mark holder). 97 Courts respect the vicarious nature of the inquiry and generally refrain from substituting their interpretations for those of consumers when evaluating a mark's distinctiveness: "It is the relevant consumers, not the courts, who determine whether the term signifies the genus of [products]." 98

Accordingly, the most valuable evidence is direct evidence of how the relevant purchasing public perceives the term: as a generic term or mere descriptor of a product class, or rather as a designator of a single product line or producer. Most valuable are consumer surveys, 99 which are practically "de rigueur" in trademark litigation. 100 In addition, courts consult a wide range of documentary sources resembling extrinsic evidence in patent cases, including dictionaries, articles from trade journals, newspapers, and other publications. 101 Indeed, "any competent source" is acceptable as evidence. 102 Documentary evidence also assumes an important evidentiary role in the classification of marks as generic, descriptive or suggestive. 103
Source: http://web.lexis-nexis.com.proxy.wic...cb07e6e0640ca6
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Old 12-19-2006, 03:39 AM   #67 (permalink)
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Ok, one more about trademarks, then I'm done, and it's late and too much to read.

Quote:
B. Fair Use and Descriptive Marks

While all trademarks are subject to fair use, 270 descriptive mark owners are, by necessity, going to find themselves more often the victims of others using their marks. "By choosing a descriptive term, the trademark owner must live with the result that everyone else in the marketplace remains free to use the term in its original "primary' or descriptive sense." 271 In other words, it is the very quality that makes a descriptive mark attractive to the first mark holder that is its Achilles heel in terms of exclusive use. Thus, no matter how successful the mark holder is at establishing his mark as the product that consumers associate with the descriptive term, "Consumers [do not] forget the descriptive meaning of the word when they use it as a mark." 272 Courts [*69] have taken a variety of stances when addressing alleged infringement of descriptive marks. Some have laid the blame entirely on the mark holder, 273 while others have theorized that because a term "resides in the public domain," the likelihood of consumers believing "the mark came from a particular single source" would be lowered. 274 Perhaps the best barometer of how trademark's fair use doctrine 275 and descriptive marks truly interact would be to examine an illustration of one descriptive mark's experience.

Entrepreneur Media ("EMI") is the owner of the mark "ENTREPRENEUR," and uses it in connection with its "Entrepreneur magazine." 276 EMI registered the mark in 1987, and it has since reached incontestable status. 277 EMI polices its mark by taking alleged infringers to court. 278 For example, in 2002, the Ninth Circuit affirmed EMI's action against a defendant for using the mark in connection with the defendant's public relations company - resulting in a $ 1.4 million judgment against the defendant. 279 This type of success has scared off other potential users of the mark, including the domain name owners of "entrepreneurs.com" and "entrepreneur.net," and Carnegie Mellon University. 280

Not all fair users, however, will be scared off by threats of litigation. EMI discovered this when it tried to prevent "Ernst & Young from publishing the Ernst & [*70] Young Entrepreneur of the Year Magazine." 281 The firm held its ground and Entrepreneur Media backed off. 282 Although most small business do not have the resources or access to legal counsel that a company the size of Ernst & Young might, the above example demonstrates fair use can be a powerful tool to prevent overly litigious descriptive mark holders, even if only in the hands of the powerful.

Unfortunately, if a major private university is unwilling to stand up for its right to use the English language, the hopes of much smaller firms and individuals are slim. While EMI's practice is both accepted and wise for a large mark holder, it operates against the underlying foundation of trademark law and the free market. As Professor McCarthy has detailed:

The policies of free competition and free use of language dictate that trademark law cannot forbid the commercial use of terms in their descriptive sense: "The principle is of great importance because it protects the right of society at large to use words or images in their primary descriptive sense, as against the claims of a trademark owner to exclusivity." 283
Have fun reading all about trademarks.
Source: http://web.lexis-nexis.com.proxy.wic...5deb6ffb1901ca
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Old 12-19-2006, 06:19 AM   #68 (permalink)
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Regarding the term frivolous. Maybe one of our attorney members' can spend a few minutes and briefly outline a little of Rule 11 (SanFrancisco did make mention of it) in IP cases. I think it may go a long way toward putting the "frivolity" aspect in focus. If I recall correctly, both the plaintiff AND the signatory attorney are subject to some pretty stiff penalties if the defendant can substantiate, or even if the court decides, going in, that the suit is without proper foundation or, in fact, is frivolous. I believe the attorney is personally liable for damages if he signs on to a specious claim. This rule in the code , once again I believe, gives a potential plaintiff pause before entering lightly into an action.

I think this would be constructive. And, if I'm misinformed about this I will be corrected. Also a positive
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Old 12-19-2006, 06:59 AM   #69 (permalink)
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DallasFlier, RIM has has used the name BlackBerry for many years and has built a reputation on it. When they chose the name BlackBerry they also didn't do it in a vacuum and at the time there wasn't an entity in the market that they were even close to infringing on. A fairly unique product, unique name. Sounds like clear sailing to me. They certainly didn't do anything wrong and in my opinion the name BlackBerry is distinctive from all other phones, PDA's, etc.

And now comes Samsung. Clearly, a complete opposite of the above.

I try to pay attention to what I read and if I am guilty of misinterpreting the context, shame on me but I read that your major problem with all this is that if RIM prevails they will lock up the trademark rights (in a smartphone marketplace) to the use of the name "Black" anything. As I stated prior, that is certainly a potential fallout of all this. As I also put it, I believe this was also the situation before the fan got covered with you know what.

In a similar vein, Motorola likely took "Q" out of the marketplace (and that's in the alphabet), and we probably won't see the XYZ corp. razor anytime soon. What's the diff?
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Old 12-19-2006, 09:38 AM   #70 (permalink)
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Wow, you guys stay up all night doing this! Sorry, I was busy sleeping!

Lets see - where to begin... OK, have to start here:

Quote:
Originally Posted by BMWLotAttendant
Wait a minute. With all due respect, did I not just read your words that you were AGAINST RIM in this law suit case?

You sir, need to get your priorities straight. Now, you yourself do own a phone produced by Blackberry and should support RIM (as SanFran stated), but you stated TWICE, that you were against RIM, and that they should lose. Sounds to me like you are acting similar to our former candidate who ran for the Presidency position.
Again - wow... Gee, maybe that's really the way you choose to take your positions - "I bought something from this company a while back so now I must be for everything they ever do from here on out." I'm afraid I put a little more intellectual and independent thought into the positions I take and hold - and I certainly wouldn't ever for a moment think that just because I bought a RIM product a year ago that its now incumbent on me to blindly support everything they ever do. Heck, I'm typing this on a computer I own that's running WindowsXP and I don't agree with everything Microsoft does either - so sue me! WAIT - maybe I shouldn't say that, SanFran might think I'm being serious.

Quote:
Originally Posted by BMWLotAttendant
Next thing to address, the concern regarding Samsung's "hole in their bank accounts". Samsung has deep pockets. Samsung not only produces and markets phones, but tvs, home phones, printers, refridgerators, camcorders, home theatre audio, microwave, laundry products, air conditioning, etc. I think another reason RIM is suing is because Samsung can afford it. Several million dollars is nothing to Samsung.
Hmm... Better go back and read my post again - a little more carefully this time. I was talking about the potential hole in RIM's bank account, not Samsungs - should RIM as the plaintiff lose this big time in a similar way to the way Microsoft lost that case big time.

OK - next. Hmm, SanFran has been reduced to posting lists of attorney's names, firm names, addresses and phone numbers in the middle of the night - which I won't clutter up the thread by quoting here. Heck, I can even now email Delilah directly! Not sure what that was supposed to accomplish - maybe I was supposed to be impressed somehow? Well, OK, I admit going to court with a trio named Parker, Sabina and Delilah *does* sound a little unique at least - although, they're not real A-list - heck, none of them are even "named" partners in the firm. Oh, and he continues his pattern of juvenile name-calling, this time calling me "pathetic" and giving me "cyber slaps" - all this after claiming earlier that *I* was the one who was getting too agitated. Thanks for the morning chuckle.

Quote:
Originally Posted by GMK
Regarding the term frivolous. Maybe one of our attorney members' can spend a few minutes and briefly outline a little of Rule 11 (SanFrancisco did make mention of it) in IP cases. I think it may go a long way toward putting the "frivolity" aspect in focus. If I recall correctly, both the plaintiff AND the signatory attorney are subject to some pretty stiff penalties if the defendant can substantiate, or even if the court decides, going in, that the suit is without proper foundation or, in fact, is frivolous. I believe the attorney is personally liable for damages if he signs on to a specious claim. This rule in the code , once again I believe, gives a potential plaintiff pause before entering lightly into an action.
I think I understand the legal term "frivolous", at least from a layman's perspective. If you go back through the thread, the only ones who have introduced the term "frivolous" into the thread were our attorney buddies SanFran and mendelec. I've very carefully avoided the term, and certainly will concede that RIM is not being "frivolous" in the legal sense.

Quote:
Originally Posted by GMK
I try to pay attention to what I read and if I am guilty of misinterpreting the context, shame on me but I read that your major problem with all this is that if RIM prevails they will lock up the trademark rights (in a smartphone marketplace) to the use of the name "Black" anything. As I stated prior, that is certainly a potential fallout of all this. As I also put it, I believe this was also the situation before the fan got covered with you know what.

In a similar vein, Motorola likely took "Q" out of the marketplace (and that's in the alphabet), and we probably won't see the XYZ corp. razor anytime soon. What's the diff?
Yes, you read my major issue with this just fine. "What's the diff" to me and apparently LOTS of other people is - "black" is a basic descriptive term that in its long-term, common English-language usage can be applied to a large percentage of product *in this market* and a large percentage of product *in this market* even BEFORE RIM decided to call theirs the "BlackBerry" and certainly before they decided to work hard to enjoin anyone else from using Black______ at all. Neither Q nor razor could have been applied descriptively to products in the marketplace - so the first and only assocation of them with phones is with those respective products. And - based on that Microsoft case, by the way, I'd say without a test case its not a given that "razor" has been totally removed from the marketplace, since it appears that Microsoft got a very expensive hand-slap when trying to remove "windows" in a similar way.

Giving RIM such a broad protection against the use of "black" by anyone else is just something I'm philosophically opposed to. But just to reiterate and make it perfectly clear, I *understand* that given our current legal system, there's at least a reasonable possibility that they may be able to accomplish that - so no more long-winded legal arguments, please? The witness is willing to stipulate as to the legal non-frivolity of the suit at hand, OK?
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Old 12-19-2006, 12:29 PM   #71 (permalink)
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Very interesting development on a related front:

The iPhone Launches...From Linksys

FWIW, here's what at least one industry analyst has to say (article HERE):

Quote:
In other news, the iPhone was released - but not by Apple. The iPhone is the new VoIP range from Cisco subsidiary Linksys. There are going to be seven models in all and they are aimed at home, Small Office/Home Office (SOHO) and small business users. What's far more interesting than the hardware itself is the name. iPhone has been the name that bloggers and the media have been using for a product that Apple is rumored to be launching sometime soon. Now whether Apple just screwed up and has been bitten by the secrecy that it normally shrouds products in prior to launch or maybe it had no intentions of calling any cell phone they come out with "iPhone" in the first place, one thing is for sure, Linksys's product line just got guaranteed a ton of publicity. If, as many analysts suspect, Apple already has a cell phone rolling out of factories in China called the iPhone, we could see a very interesting trademark battle, and Apple has little evidence to back up an ownership claim on the iPhone trademark.
So, what says the BBF trademark & IP defense team on this one? Apple has never before been a participant in the phone biz and as noted above, they haven't yet made any official announcements announcing or naming a product - do they have inherent ownership on the lower case letter "i" with regards to any electronic device of any kind?
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Old 12-19-2006, 01:32 PM   #72 (permalink)
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Quote:
Originally Posted by DallasFlier
Very interesting development on a related front:

The iPhone Launches...From Linksys

FWIW, here's what at least one industry analyst has to say (article HERE):



So, what says the BBF trademark & IP defense team on this one? Apple has never before been a participant in the phone biz and as noted above, they haven't yet made any official announcements announcing or naming a product - do they have inherent ownership on the lower case letter "i" with regards to any electronic device of any kind?


It may be. Much of thse trademark suits hinge on phonetic similarity (razr=razor), or confusion in the marketplace. iWhatever is assumed to be an Apple device. In the Linksys case, I have to say that even I upon hearing that there was such an animal as an iPhone, would immediately assume that it was an Apple device.

In the RIM vs Samsung case, id Samsung (or any other manufacturer) came out with a non-amsrtphone device (regulat cell or non-connected PDA) and called it BlackThing, RIM could not defend it. That case will hinge on whether Black??? as a smart phone as an association with RIM in the public's mind. And the physical and functional similarity of the devices are likely enough to meet that standard.
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Old 12-19-2006, 02:00 PM   #73 (permalink)
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Very interesting, indeed. Linksys (Cisco), per this article : IPhone unveiled, but not by Apple: Financial News - Yahoo! Finance has had the mark since 2000!

In this article AppleInsider | Exclusive: Apple seeks rights to iPhone trademark Apple is reported to be trying to secure off-shore trademark rights.

I too would have to agree if someone asked me who made the iPhone, without a bat of a lash, I would say Apple.

This is really a good one.

BTW, has anyone seen an Apple phone? I have probably seen a dozen pics of it but they're all different. Is there an official leaked shot?
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Old 12-19-2006, 02:07 PM   #74 (permalink)
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In major litigation there are typically three to four lawyers on the caption and in the case. There is typically one partner and three associates. That's how it works in major litigation.

My point in listing the firm snapshot was to show, with evidence instead of "I heard," that the RIM lawyers are from an established firm. And the Partner who is in charge of the case is a specialist in these types of cases. Besides, I was in on the Court's website trying to get the Compaint, but it is not being posted. So while I was there, I screen captured the lawyer's page.

While you may not see the significance of this, I assure you that federal judges take note of who is who because that give the Judge a "preview" of whether a case has merit or not.

Bonus Tip: You were sleeping? I'd be worried about what goes on while people like me are lurking about. Better sleep with one eye open.

Seriously though, I only need about three hours sleep a night, so that gives me lots of extra time to cause trouble aka work on cases.

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Old 12-19-2006, 02:18 PM   #75 (permalink)
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Quote:
Originally Posted by GMK
Very interesting, indeed. Linksys (Cisco), per this article : IPhone unveiled, but not by Apple: Financial News - Yahoo! Finance has had the mark since 2000!

In this article AppleInsider | Exclusive: Apple seeks rights to iPhone trademark Apple is reported to be trying to secure off-shore trademark rights.

I too would have to agree if someone asked me who made the iPhone, without a bat of a lash, I would say Apple.

This is really a good one.

BTW, has anyone seen an Apple phone? I have probably seen a dozen pics of it but they're all different. Is there an official leaked shot?
Wow, I hadn't read that Linksys has had it registered as a trademark since 2000! The plot definitely thickens! Could be in for a real epic battle here - certainly as a division of Cisco Linksys has plenty deep enough pockets to aggressively defend the trademark if they've owned it for 6 years already.

I tend to agree, I'd think at this point that "iPhone" definitely means Apple. Only question in my mind is - I think one of the main reasons I'd think so, is due to the widespread speculation in the press the last few months. As far as I know, Apple hasn't said a single word about it, nor have they shown any pictures - which is why there are SO many faked, mocked-up pics out there - they're all "what if" speculative pictures. So, on its own with absolutely no announcement or words from Apple, is widespread speculation by the press - which has contributed heavily to putting the "iPhone = Apple" into your head and mine - enough to invalidate a 6 year old registered trademark of another company?

Will be VERY interesting to watch. The fact that Apple is attempting a flank attack by attempting a registration in the far east first, tends to indicate to me that they WILL fight.
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Old 12-19-2006, 02:27 PM   #76 (permalink)
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Every case turns on the facts, so not sure on this.

Seems to me I heard that when Apple was in the news talking about the phone, someone on the news mentioned "iPhone" but I'm not sure if that was just the news guy commenting on what he thought it might be called.

There's about an extensive legal and factual checklist one has to complete before determining if there's a basis to sue for unfair competition and IP violations. Even then, one may be left in the gray area where only a Court can resolve the dispute.

Just shooting from the hip with a blindfold on, Apple does not own the letter "i" and cannot go after anyone who puts an "i" as the first letter in a product name.

I recall when Microsoft tried to trademark the little hand and index finger that pops up on your screen when you hover over a link. They failed, the Court saying that it was too generic and MS did not own it, nor could they "buy it."

But if one makes an MP3 device that looks like an iPod and calls it the "iPodder" or a seventies sounding "iMod" then Apple has a valid complaint.

I would also question if Apple has any complaints since they were not in the phone business before others came out with the iPhone. Someone else beat them to it.

I would also want to know if Apple had made attempts to, or in fact did, trademark the name "iPhone."

That's just some initial thoughts I have.


Quote:
Originally Posted by DallasFlier
Very interesting development on a related front:

The iPhone Launches...From Linksys

FWIW, here's what at least one industry analyst has to say (article HERE):



So, what says the BBF trademark & IP defense team on this one? Apple has never before been a participant in the phone biz and as noted above, they haven't yet made any official announcements announcing or naming a product - do they have inherent ownership on the lower case letter "i" with regards to any electronic device of any kind?

Last edited by SanFrancisco : 12-19-2006 at 02:54 PM.
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Old 12-19-2006, 02:33 PM   #77 (permalink)
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Quote:
Originally Posted by DallasFlier
Wow, I hadn't read that Linksys has had it registered as a trademark since 2000! The plot definitely thickens! Could be in for a real epic battle here - certainly as a division of Cisco Linksys has plenty deep enough pockets to aggressively defend the trademark if they've owned it for 6 years already.
Well on that news, I think Apple will lose any claim. Courts give great weight to registered trademarks because there is a significant process one has to go through to get a trademark.

Also, not sure on this, but has the iPod been around for six years? If not, seems an "i" something or other was not even an issue at the time.

I think Apple is not going to be able to name their phone the "iphone." Besides, I think calling it what it is and where it comes from is better: "Apple Phone" says it all.
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Old 12-19-2006, 02:46 PM   #78 (permalink)
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Originally Posted by GMK
Regarding the term frivolous. Maybe one of our attorney members' can spend a few minutes and briefly outline a little of Rule 11 (SanFrancisco did make mention of it) in IP cases. I think it may go a long way toward putting the "frivolity" aspect in focus. If I recall correctly, both the plaintiff AND the signatory attorney are subject to some pretty stiff penalties if the defendant can substantiate, or even if the court decides, going in, that the suit is without proper foundation or, in fact, is frivolous. I believe the attorney is personally liable for damages if he signs on to a specious claim. This rule in the code , once again I believe, gives a potential plaintiff pause before entering lightly into an action.

I think this would be constructive. And, if I'm misinformed about this I will be corrected. Also a positive
There's too much info on it to post in here. Generally though:

1. Such motions are a waste of time. Fed courts rarely grant them. The motion is hard to win because in the legal world and for Rule 11 "frivolous" is difficult to prove. Generally the word is defined as having ZERO basis in law or fact. Reality is that one can always find some shred of fact and law to support a case or court filing.

2. If you have seen the movie Civil Action, there are a few scenes that deal with a Rule 11 motion. Pretty accurate.

3. Rule 11 motions are a waste because the purpose of the motion is to deter future conduct, not punish a lawyer for past conduct. Moreover, the sanctions [fine] goes to the Court and the fines are typically small.

4. Although a Court could dismiss a case as part of a Rule 11 sanction, they rarely will because that is more a punishment for past conduct than a deterrence sanction. Moreover, a dismissal ends up sanctioning the party/client for the lawyer's bad acts. While it is in the Court's power, Rule 11 is not supposed to be applied against parties, it deals with the lawyers' conduct.

5. If one wants to get a case dismissed, most Courts require that a party file a motion to dismiss rather than to seek dismissal through Rule 11.

6. Generally, as depicted in the movie Civil Action, only malicious, incompetent, or inexperienced lawyers file Rule 11 motions. Most of the time the motion is filed to harass, intimidate or distract the lawyer against whom the motion is filed. Sometimes the motion is filed to motivate a party to settle a case.

7. Hazard: If the Court finds that the Rule 11 motion was filed for ulterior/improper motive, the Court will most likely sanction the lawyer who filed the motion in the first place.

Last edited by SanFrancisco : 12-19-2006 at 02:53 PM.
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Old 12-19-2006, 03:14 PM   #79 (permalink)
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Quote:
Originally Posted by SanFrancisco
Well on that news, I think Apple will lose any claim. Courts give great weight to registered trademarks because there is a significant process one has to go through to get a trademark.

Also, not sure on this, but has the iPod been around for six years? If not, seems an "i" something or other was not even an issue at the time.
Well, the iPod isn't that old, but the iMac probably is.

Quote:
Originally Posted by SanFrancisco
I think Apple is not going to be able to name their phone the "iphone." Besides, I think calling it what it is and where it comes from is better: "Apple Phone" says it all.
Per the link GMK posted, sounds like they intend to *try* to call it the iPhone though. They're making an end run and filing a trademark application somewhere in the "far east" rather than addressing the Linksys situation in the U.S., sounds like. Should be interesting.

EDIT: From that article GMK posted:

Quote:
Monday, October 16, 2006

Apple Computer has filed for a trademark on the term iPhone, suggesting the company plans to use the moniker, recently popularized amongst the analyst and blogging communities, as the official name for its highly-anticipated iPod cell phone.

The filing, made last month with a Far Eastern trademark office...

According to the filing, which remains under examination, Apple originally sought the iPhone trademark back in March, when it filed a similar request with a trademark office in a nation off the coast of South America.
At first glance, all looks pretty sneaky and underhanded to me - sure makes me think they already knew about the existing Linksys trademark in the U.S.
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Last edited by DallasFlier : 12-19-2006 at 03:28 PM.
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Old 12-19-2006, 04:06 PM   #80 (permalink)
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A U.S. trademark will trump later filed foreign trademarks, at least for use in the U.S.

For the U. S. market, Apple's foreign registrations are a non-event.

Apple obviously checked and found out "iPhone" was taken, so maybe they have some tricks up their sleeves that I am unaware of. Can't think of what they are.
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