Cisco, which has owned the iPhone trademark since 2000, lashed out.
“We expected that since they had gone ahead and announced a product without receiving permission to use the brand, that meant that the negotiation was concluded," Cisco General Counsel Mark Chandler told the Associated Press.
Psshaw!, scoffed Apple Computer — which is now actually known by the one-word moniker “Apple,” much like Cher. Spokesman Steve Dowling dismissed the lawsuit as “silly” and added, “Cisco just wishes it was as cool as Apple. I mean, c’mon. Are routers sexy? I don’t think so.”
Ok, so Dowling didn’t actually say that stuff about coolness and routers. But he did call the suit “silly” and pointed out that “we are the first company ever to use the name for a cell phone” while Cisco has only used the name recently for home phones that can make calls over the Internet.
And now that the schoolyard slap-fight has died down, here are some actual experts weighing in on whether each side has much of a case:
Robert Andris, IP attorney and partner at Ropers Majeski Kohn & Bentley’s Redwood City office, thinks Apple could fail with some arguments and succeed with others.
"Apple's argument that its use of the mark iPhone would not be infringing because the two products are materially different will be a tough row to hoe. In infringement actions, judges and juries are allowed to consider the differences between the products using a mark when deciding whether there is a likelihood of confusion. But they are also allowed to consider whether the products are sold into similar markets and whether it is likely the mark holder's product line will be expanded to move into the infringer's market. Despite the different technologies employed, this appears to be a more of a negotiation point than a slam-dunk legal defense.”
Apple may have a stronger case should it argue that Cisco didn’t do anything with its trademark fast enough, and therefore has no right to sue, Andris said.
“Trademark rights are primarily created through the use of the trademark; i.e., by attaching it to goods or services that are actually offered for sale to the consuming public. Having a mark without a product to attach to it frequently results in a finding that no trademark rights exist. Here, Cisco registered the trademark in 2000 but didn't start shipping its product until last spring, and didn't actually launch the product until a few weeks ago.”
Apple may also have a chance if it argues that technology products with an “I” in front of them are so prevalent as to be generic.
“Without question, more and more words and phrases that were once used only by technophiles are become common parlance in this Internet-based society."
Nate A. Garhart, an intellectual property attorney with Coblentz, Patch Duffy & Bass in San Francisco agreed, adding that Apple may also argue it has “senior rights” because of its “earlier and significant use of its broad family of "i" marks (iPod, iPhoto, iMovie, etc.).”
“In any event,” Garhart added, “it is an interesting case pitting against each other two Silicon Valley heavyweights with plenty of money to fight."
— Jessie Seyfer