That's true, Cisco will have to prove that their ™ covers the class of the devices that the iPhone is in. If the ™ is too generic, i. e. covers to much territory, it's an uphill battle for the ™ holder, since they have to show actual products covering all segments in the ™ IMHO.
But, no one here seems to be reading the articles about this.
Most copyright/trademark experts questioned about this think that Apple will have a problem winning this.
It doesn't matter that Cisco's product isn't exactly the same. It is USED pretty much the same way.
It's the POTENTIAL for confusion that determines whether the names will conflict.
Also, as Cisco correctly points out, the two lines will converge in functionality over the years. That's a natural process.
And this would preclude Cisco from using THEIR OWN NAME for products that later compete more directly with Apple's.
This is definitely screwed up!
Apple would certainly sue under the same circumstances.
And, again, remember that this was first regestered in 1996.
Perhaps it was Apple that got the idea from this!
That wasn't serious of course, as it's unlikely that Apple knew about it then, but the point to it, is that Apple has never shied away from taking what they want, if they think they can get away with it.
And as now there are hundreds of products named "i" something or other, the fact that Cisco has "iPhone" isn't a reason why Apple can use that name.
They're not a cellphone. They don't use a cellular network. Therefore, "We're the first company to ever use the iPhone name for a cellphone" is perfectly accurate. They're phones, but not cellphones.
It doesn't matter.
If it's felt that the PUBLIC might confuse the two, then Apple will lose.
The devices don't have to be the same.
The fact that phone calls can be made on each could be enough.
But, no one here seems to be reading the articles about this.
Most copyright/trademark experts questioned about this think that Apple will have a problem winning this.
It doesn't matter that Cisco's product isn't exactly the same. It is USED pretty much the same way.
It's the POTENTIAL for confusion that determines whether the names will conflict.
Also, as Cisco correctly points out, the two lines will converge in functionality over the years. That's a natural process.
And this would preclude Cisco from using THEIR OWN NAME for products that later compete more directly with Apple's.
This is definitely screwed up!
Apple would certainly sue under the same circumstances.
And, again, remember that this was first regestered in 1996.
Perhaps it was Apple that got the idea from this!
That wasn't serious of course, as it's unlikely that Apple knew about it then, but the point to it, is that Apple has never shied away from taking what they want, if they think they can get away with it.
And as now there are hundreds of products named "i" something or other, the fact that Cisco has "iPhone" isn't a reason why Apple can use that name.
Remember the dispute Apple had with Tiger Direct?
Noe the shoe is on the other paw.
Granted that all that is true, and I believe it is, I still find the timing interesting as I posted earlier WRT the 1996 USPTO filing, it's original name "IPHONE" and that the original filer wasn't Cisco. That's all. Besides as I've also mentioned it may have more PR value than legal merit (for both parties).
That's true, Cisco will have to prove that their ? covers the class of the devices that the iPhone is in. If the ? is too generic, i. e. covers to much territory, it's an uphill battle for the ? holder, since they have to show actual products covering all segments in the ? IMHO.
It works both ways. Cisco will have to prove that Apple used a trademark that they own. I believe that it's obvious. They should have no problem there. They then have to show that there will be confusion among the potential customer base. That's their main point of contention in the case.
Then, Apple, as the alleged infringer, will have to show that they do not.
Seriously, are you a ? attorney? Because if you are then you're opinion would carry some weight. Myself, I don't have a clue, I'm just looking at the facts as I know them, those facts suggest to me at least, that there are some merits Apple has here (legal and/or PR wise).
There's more stuff out there, of course, but these give the gist of it.
Yes understood, Apple knew beforehand about the Cisco ? and were in negotiations with them, but Apple walked away and it makes you wonder why? Price "extortion" or legal merit (I'm no expert, you guys seem to know more about this stuff than I do, so I would agree with you that perhaps there isn't much legal merit in Apple's case) or PR value?
There, now I've gone all "John Kerry" on you guys and shifted my viewpoint more towards yours, are you happy now?
Granted that all that is true, and I believe it is, I still find the timing interesting as I posted earlier WRT the 1996 USPTO filing, it's original name "IPHONE" and that the original filer wasn't Cisco. That's all. Besides as I've also mentioned it may have more PR value than legal merit (for both parties).
The timing doesn't matter. It's like a patent, first in, first served.
It would have to be proved by Apple that Cisco knew that Apple was going to use that name for a phone.
But, even that would be problematic. Apple is no where near being the exclusive user of names starting with "i".
If Apple wanted to have a clear case, they would have had to sue every company that came out with a product using the "i". They didn't.
The timing doesn't matter. It's like a patent, first in, first served.
It would have to be proved by Apple that Cisco knew that Apple was going to use that name for a phone.
But, even that would be problematic. Apple is no where near being the exclusive user of names starting with "i".
If Apple wanted to have a clear case, they would have had to sue every company that came out with a product using the "i". They didn't.
I have plenty of experience with this.
See my last post above. BTW I just found the timing interesting, that's all, it clearly wasn't "just" a coincidence, a random process, there is a history and PR value associated with the "i" branding and Cisco took advantage of it (IMHO) as they have full rights to do so as the ™ holder AFAIK.
Yes understood, Apple knew beforehand about the Cisco ? and were in negotiations with them, but Apple walked away and it makes you wonder why? Price "extortion" or legal merit (I'm no expert, you guys seem to know more about this stuff than I do, so I would agree with you that perhaps there isn't much legal merit in Apple's case) or PR value?
Cisco wanted interoperability between their products, and Apple's. That is likely more than Apple is willing to do, and I'm sure that it was the deal breaker.
But, Apple was being very coy about this. They appearently indicated that they WOULD do this, and then, when it was too late for Cisco to get an injunction against them for the introduction, failed to follow through. As Apple won't sell this for 6 months, they figured they had plenty of time to do whatever they had to do.
It's also why Apple wants a jury trial. A judge is unlikely to side with them. A jury is more likely to. A judge works on the facts. A jury also has considerable emotional pull. I've been on a lot of juries. If you have been also, you will know what I mean.
Quote:
There, now I've gone all "John Kerry" on you guys and shifted my viewpoint more towards yours, are you happy now?
They're not a cellphone. They don't use a cellular network. Therefore, "We're the first company to ever use the iPhone name for a cellphone" is perfectly accurate. They're phones, but not cellphones.
That's not the point.
Apple habitually sues people who use their names (or even subsets of names, like the word "pod") in even the remotest of screwy circumstances, when there is clearly no relationship whatsoever. (Like a device for measuring usage of arcade video games, or a fabric bag for laptops.)
It is very hypocritical for them to claim universal protection of their names, and simultaneously claim that their iPhone is nothing like Cisco's iPhone. A VoIP phone is a lot close to a cell phone than a fabric bag is to an iPod.
No, it doesn't work that way. As far as I know, the iPhone name was registered before the first iMac even came out.
Even if the iMac came out first, no one can get an open ended trademark.
Apple would have been smart to have registered all names for products that they could possibly think of. But, Apple isn't always smart. They have made many mistakes Filing patent applications too late, etc.
uh.....no
think of McDonalds and their ability to protect their "Mc" trademark, to the point of having family run business change their names even though they where registered before McDonalds (think the globe) and stopping others from ever using "Mc" even though they have not registered all possible Mc (names) they can possibly think off
same thing for the "olympic" trademark, if you have the word "OLYMPIC" in your business and the Olympics are coming to town, then you MUST remove all "olympic" words from your establishment till the games are over (take it up with the olympic committee)
maybe cisco should sue EVERYONE using the term "iPhone" or selling product/services named under "iPhone" http://www.iphone.com/
think of McDonalds and their ability to protect their "Mc" trademark, to the point of having family run business change their names even though they where registered before McDonalds (think the globe) and stopping others from ever using "Mc" even though they have not registered all possible Mc (names) they can possibly think off
same thing for the "olympic" trademark, if you have the word "OLYMPIC" in your business and the Olympics are coming to town, then you MUST remove all "olympic" words from your establishment till the games are over (take it up with the olympic committee)
maybe cisco should sue EVERYONE using the term "iPhone" or selling product/services named under "iPhone" http://www.iphone.com/
This is nonsense!
MacDonalds can't have other companies remove their name if they have a valid copyright or trademark. If those companies try to use the name, knowing that McDonalds uses it. That's their problem. It can be different for a website. But, even that can be ticklish.
Many companies use Mc in their name. Just look in the phonebook.
No one can ever be told to remove their name because the olympics is coming to town.
I would just to have loved to see just what Greece, and Olympic Airways would have done about that a few years ago!
I was about to post that link but you beat me too it! Oh well, it IS an interesting development if it is, in fact, true. And if Apple found out about this before the keynote, it could explain why they didn't sign any agreement with Cisco AND why they are so confident they will win despite everyone assuring them that they would lose.
Since a suit has been filed, asking for a jury trial, it's not time that will tell, but a judge, jury and a bunch of the other kind of suits?shark skin/
The timing doesn't matter. It's like a patent, first in, first served.
Absolutely, 100%, WRONG.
1. "the timing doesn't matter"
Patent law, maybe, maybe not (see below on first-to-file vs. first-to-invent, there are legal differences between the two). Trademarks: yes, timing does play a more significant role
2. "It's like a patent":
Patents are different than trademarks (substantively and for the most part, legally): the two cover wholly distinct forms of intellectual property which are governed by completely different legal principles: Patent protection was established by the US Constitution (Article 1, Section 8, p. 8, while Trademarks were only protected under state common law before congress passed Title 35. That said, the law governing the two do share similarities in that Patents and Trademarks can be abandoned. This is not the clear cut case of Trademark infringement that some are making it out to be. Whether a Trademark has been abandoned is an extremely fact-specific question, therefore, both sides can present facts to support their side of the issue. Not only does Apple have a chance to win this lawsuit, but Cisco could end up in hot water if they manipulated evidence to suggest that they were actively using the iPhone name when in fact the trademark COULD have been abandoned in 2005 due to unuse. See this article for evidence of this possibility: also provided by Spamsandwich
In Europe (and pretty much the rest of the world), the first person to file is considered the inventor. Period. Not so in the US. What this means is that with Patents, even is a person is first-to-file and receives a patent, another person can initiate an interference action and try to prove that they were the first inventor:
See 35 U.S.C. Section 102(g): Conditions for patentability; novelty and loss of right to patent.
"A person shall be entitled to a patent unless -
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed..."
The patent application process/filing of a patent is one of the areas where Patent law and Trademark law have almost nothing to do with one another (see point 1 above). Let's just say that I am in my third year of law school, and I can file a Trademark application. Not so for a patent. This is a much more complex process.
Quote:
It's the POTENTIAL for confusion that determines whether the names will conflict.
The potential for confusion is one of the major tests used to resolve trademark infringement actions (whether the name, product, logo, packing is so similar to that of another that consumers will confuse the two). The potential for confusion does not determine whether the two names will conflict and is moot in this case since the two names are exactly the same (iPhone vs. IPHONE). The questions is, rather, who has the right to use the name, not whether the potential for confusion exists (pretty clearly the case since the names are almost identical). Sorry to nitpick.
Patents are nothing like trademarks (substantively and for the most part, legally): the two cover wholly distinct forms of intellectual property which are governed by completely different legal principles: Patent protection was established by the US Constitution (Article 1, Section 8, p. 8, while Trademarks were only protected under state common law before congress passed Title 35. That said, the law governing the two do share similarities in that Patents and Trademarks can be abandoned. This is not the clear cut case of Trademark infringement that some are making it out to be. Whether a Trademark has been abandoned is an extremely fact-specific question, therefore, both sides can present facts to support their side of the issue. Not only does Apple have a chance to win this lawsuit, but Cisco could end up in hot water if they manipulated evidence to suggest that they were actively using the iPhone name when in fact the trademark COULD have been abandoned in 2005 due to unuse. See this article for evidence of this possibility:
In Europe (and pretty much the rest of the world), the first person to file is considered the inventor. Period. Not so in the US. What this means is that with Patents, even is a person is first-to-file and receives a patent, another person can initiate an interference action and try to prove that they were the first inventor:
See 35 U.S.C. Section 102(g): Conditions for patentability; novelty and loss of right to patent.
"A person shall be entitled to a patent unless -
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed..."
The patent application process/filing of a patent is one of the area where Patent law and Trademark law have almost nothing to do with one another (see point 1 above). Let's just say that I am in my third year of law school, and I can file a Trademark application. Not so for a patent. This is a much more complex process.
In what capacity?
OK someone with some actual legal training, after reading the linked article and the last post I feel another "John Kerry" moment within me is about to occur. Yup, I'm back to my original thoughts that this case does have some legal merit for Apple.
Like I said initially after visiting the USPTO website, the timing just looked very suspicious, and the linked article seems to bare this out.
Like I said initially after visiting the USPTO website, the timing just looked very suspicious, and the linked article seems to bare this out.
Yes. I am sure that Apple will argue that Cisco put stickers outside of packaging during the time period after the trademark was abandoned to make it look as if the trademark was in use when in fact it wasn't. Cisco could make equally compelling arguments against this contention.
Quote:
Signed, Flip-Flopper-In-Training
You're not a flip-flopper, you're just looking at both sides of the issue and then choosing one.
Comments
That's true, Cisco will have to prove that their ™ covers the class of the devices that the iPhone is in. If the ™ is too generic, i. e. covers to much territory, it's an uphill battle for the ™ holder, since they have to show actual products covering all segments in the ™ IMHO.
But, no one here seems to be reading the articles about this.
Most copyright/trademark experts questioned about this think that Apple will have a problem winning this.
It doesn't matter that Cisco's product isn't exactly the same. It is USED pretty much the same way.
It's the POTENTIAL for confusion that determines whether the names will conflict.
Also, as Cisco correctly points out, the two lines will converge in functionality over the years. That's a natural process.
And this would preclude Cisco from using THEIR OWN NAME for products that later compete more directly with Apple's.
This is definitely screwed up!
Apple would certainly sue under the same circumstances.
And, again, remember that this was first regestered in 1996.
Perhaps it was Apple that got the idea from this!
That wasn't serious of course, as it's unlikely that Apple knew about it then, but the point to it, is that Apple has never shied away from taking what they want, if they think they can get away with it.
And as now there are hundreds of products named "i" something or other, the fact that Cisco has "iPhone" isn't a reason why Apple can use that name.
Remember the dispute Apple had with Tiger Direct?
Now the shoe is on the other paw.
Remember there was an argeement waiting for Apple to sign (or so it is rumored) and they walked away. What does that tell you about the situation?
It tells us that Apple knew Cisco had the rights to the name, and that they needed to license it.
But, this isn't entirely about the name, is it?
They're not a cellphone. They don't use a cellular network. Therefore, "We're the first company to ever use the iPhone name for a cellphone" is perfectly accurate. They're phones, but not cellphones.
It doesn't matter.
If it's felt that the PUBLIC might confuse the two, then Apple will lose.
The devices don't have to be the same.
The fact that phone calls can be made on each could be enough.
But, no one here seems to be reading the articles about this.
Most copyright/trademark experts questioned about this think that Apple will have a problem winning this.
It doesn't matter that Cisco's product isn't exactly the same. It is USED pretty much the same way.
It's the POTENTIAL for confusion that determines whether the names will conflict.
Also, as Cisco correctly points out, the two lines will converge in functionality over the years. That's a natural process.
And this would preclude Cisco from using THEIR OWN NAME for products that later compete more directly with Apple's.
This is definitely screwed up!
Apple would certainly sue under the same circumstances.
And, again, remember that this was first regestered in 1996.
Perhaps it was Apple that got the idea from this!
That wasn't serious of course, as it's unlikely that Apple knew about it then, but the point to it, is that Apple has never shied away from taking what they want, if they think they can get away with it.
And as now there are hundreds of products named "i" something or other, the fact that Cisco has "iPhone" isn't a reason why Apple can use that name.
Remember the dispute Apple had with Tiger Direct?
Noe the shoe is on the other paw.
Granted that all that is true, and I believe it is, I still find the timing interesting as I posted earlier WRT the 1996 USPTO filing, it's original name "IPHONE" and that the original filer wasn't Cisco. That's all. Besides as I've also mentioned it may have more PR value than legal merit (for both parties).
That's true, Cisco will have to prove that their ? covers the class of the devices that the iPhone is in. If the ? is too generic, i. e. covers to much territory, it's an uphill battle for the ? holder, since they have to show actual products covering all segments in the ? IMHO.
It works both ways. Cisco will have to prove that Apple used a trademark that they own. I believe that it's obvious. They should have no problem there. They then have to show that there will be confusion among the potential customer base. That's their main point of contention in the case.
Then, Apple, as the alleged infringer, will have to show that they do not.
Seriously, are you a ? attorney? Because if you are then you're opinion would carry some weight. Myself, I don't have a clue, I'm just looking at the facts as I know them, those facts suggest to me at least, that there are some merits Apple has here (legal and/or PR wise).
Ok, Frank. There is background here.
http://www.forbes.com/markets/2007/0...markets18.html
Apple KNOWS they have no right to the name.
http://www.marketwatch.com/news/stor...yhoo&dist=yhoo
http://www.macworld.com/news/2007/01...pute/index.php
There's more stuff out there, of course, but these give the gist of it.
Ok, Frank. There is background here.
http://www.forbes.com/markets/2007/0...markets18.html
Apple KNOWS they have no right to the name.
http://www.marketwatch.com/news/stor...yhoo&dist=yhoo
http://www.macworld.com/news/2007/01...pute/index.php
There's more stuff out there, of course, but these give the gist of it.
Yes understood, Apple knew beforehand about the Cisco ? and were in negotiations with them, but Apple walked away and it makes you wonder why? Price "extortion" or legal merit (I'm no expert, you guys seem to know more about this stuff than I do, so I would agree with you that perhaps there isn't much legal merit in Apple's case) or PR value?
There, now I've gone all "John Kerry" on you guys and shifted my viewpoint more towards yours, are you happy now?
Granted that all that is true, and I believe it is, I still find the timing interesting as I posted earlier WRT the 1996 USPTO filing, it's original name "IPHONE" and that the original filer wasn't Cisco. That's all. Besides as I've also mentioned it may have more PR value than legal merit (for both parties).
The timing doesn't matter. It's like a patent, first in, first served.
It would have to be proved by Apple that Cisco knew that Apple was going to use that name for a phone.
But, even that would be problematic. Apple is no where near being the exclusive user of names starting with "i".
If Apple wanted to have a clear case, they would have had to sue every company that came out with a product using the "i". They didn't.
I have plenty of experience with this.
The timing doesn't matter. It's like a patent, first in, first served.
It would have to be proved by Apple that Cisco knew that Apple was going to use that name for a phone.
But, even that would be problematic. Apple is no where near being the exclusive user of names starting with "i".
If Apple wanted to have a clear case, they would have had to sue every company that came out with a product using the "i". They didn't.
I have plenty of experience with this.
See my last post above. BTW I just found the timing interesting, that's all, it clearly wasn't "just" a coincidence, a random process, there is a history and PR value associated with the "i" branding and Cisco took advantage of it (IMHO) as they have full rights to do so as the ™ holder AFAIK.
Yes understood, Apple knew beforehand about the Cisco ? and were in negotiations with them, but Apple walked away and it makes you wonder why? Price "extortion" or legal merit (I'm no expert, you guys seem to know more about this stuff than I do, so I would agree with you that perhaps there isn't much legal merit in Apple's case) or PR value?
Cisco wanted interoperability between their products, and Apple's. That is likely more than Apple is willing to do, and I'm sure that it was the deal breaker.
But, Apple was being very coy about this. They appearently indicated that they WOULD do this, and then, when it was too late for Cisco to get an injunction against them for the introduction, failed to follow through. As Apple won't sell this for 6 months, they figured they had plenty of time to do whatever they had to do.
It's also why Apple wants a jury trial. A judge is unlikely to side with them. A jury is more likely to. A judge works on the facts. A jury also has considerable emotional pull. I've been on a lot of juries. If you have been also, you will know what I mean.
There, now I've gone all "John Kerry" on you guys and shifted my viewpoint more towards yours, are you happy now?
Never!
See my last post above.
My "problem" is that I tend to get too involved in details. I like to wrap things up tightly.
It's my background. I know it's annoying sometimes.
They're not a cellphone. They don't use a cellular network. Therefore, "We're the first company to ever use the iPhone name for a cellphone" is perfectly accurate. They're phones, but not cellphones.
That's not the point.
Apple habitually sues people who use their names (or even subsets of names, like the word "pod") in even the remotest of screwy circumstances, when there is clearly no relationship whatsoever. (Like a device for measuring usage of arcade video games, or a fabric bag for laptops.)
It is very hypocritical for them to claim universal protection of their names, and simultaneously claim that their iPhone is nothing like Cisco's iPhone. A VoIP phone is a lot close to a cell phone than a fabric bag is to an iPod.
Hopefully, the judge will notice this too.
No, it doesn't work that way. As far as I know, the iPhone name was registered before the first iMac even came out.
Even if the iMac came out first, no one can get an open ended trademark.
Apple would have been smart to have registered all names for products that they could possibly think of. But, Apple isn't always smart. They have made many mistakes Filing patent applications too late, etc.
uh.....no
think of McDonalds and their ability to protect their "Mc" trademark, to the point of having family run business change their names even though they where registered before McDonalds (think the globe) and stopping others from ever using "Mc" even though they have not registered all possible Mc (names) they can possibly think off
same thing for the "olympic" trademark, if you have the word "OLYMPIC" in your business and the Olympics are coming to town, then you MUST remove all "olympic" words from your establishment till the games are over (take it up with the olympic committee)
maybe cisco should sue EVERYONE using the term "iPhone" or selling product/services named under "iPhone" http://www.iphone.com/
uh.....no
think of McDonalds and their ability to protect their "Mc" trademark, to the point of having family run business change their names even though they where registered before McDonalds (think the globe) and stopping others from ever using "Mc" even though they have not registered all possible Mc (names) they can possibly think off
same thing for the "olympic" trademark, if you have the word "OLYMPIC" in your business and the Olympics are coming to town, then you MUST remove all "olympic" words from your establishment till the games are over (take it up with the olympic committee)
maybe cisco should sue EVERYONE using the term "iPhone" or selling product/services named under "iPhone" http://www.iphone.com/
This is nonsense!
MacDonalds can't have other companies remove their name if they have a valid copyright or trademark. If those companies try to use the name, knowing that McDonalds uses it. That's their problem. It can be different for a website. But, even that can be ticklish.
Many companies use Mc in their name. Just look in the phonebook.
No one can ever be told to remove their name because the olympics is coming to town.
I would just to have loved to see just what Greece, and Olympic Airways would have done about that a few years ago!
Interesting development...
I was about to post that link but you beat me too it! Oh well, it IS an interesting development if it is, in fact, true. And if Apple found out about this before the keynote, it could explain why they didn't sign any agreement with Cisco AND why they are so confident they will win despite everyone assuring them that they would lose.
I guess only time will tell...
The timing doesn't matter. It's like a patent, first in, first served.
Absolutely, 100%, WRONG.
1. "the timing doesn't matter"
Patent law, maybe, maybe not (see below on first-to-file vs. first-to-invent, there are legal differences between the two). Trademarks: yes, timing does play a more significant role
2. "It's like a patent":
Patents are different than trademarks (substantively and for the most part, legally): the two cover wholly distinct forms of intellectual property which are governed by completely different legal principles: Patent protection was established by the US Constitution (Article 1, Section 8, p. 8, while Trademarks were only protected under state common law before congress passed Title 35. That said, the law governing the two do share similarities in that Patents and Trademarks can be abandoned. This is not the clear cut case of Trademark infringement that some are making it out to be. Whether a Trademark has been abandoned is an extremely fact-specific question, therefore, both sides can present facts to support their side of the issue. Not only does Apple have a chance to win this lawsuit, but Cisco could end up in hot water if they manipulated evidence to suggest that they were actively using the iPhone name when in fact the trademark COULD have been abandoned in 2005 due to unuse. See this article for evidence of this possibility: also provided by Spamsandwich
http://blogs.zdnet.com/Burnette/?p=236
In general, IP law discourages intellectual property squatting: you either use it, or you lose it.
3. It's like a patent, first in, first served.
The United States does not use a first to file system like Europe does, but uses a first-to-invent system. Congress considered revising the Patent statute to a first-to-file system in 2005, but this change has not been approved. This means that, contrary to your assertion, you could be the first-to-file, but it someone else invented the invention covered by the patent first, it makes no difference: the first inventor prevails.
In Europe (and pretty much the rest of the world), the first person to file is considered the inventor. Period. Not so in the US. What this means is that with Patents, even is a person is first-to-file and receives a patent, another person can initiate an interference action and try to prove that they were the first inventor:
http://en.wikipedia.org/wiki/Patent_interference
See 35 U.S.C. Section 102(g): Conditions for patentability; novelty and loss of right to patent.
"A person shall be entitled to a patent unless -
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed..."
MPEP 2300-Interference Proceedings
The patent application process/filing of a patent is one of the areas where Patent law and Trademark law have almost nothing to do with one another (see point 1 above). Let's just say that I am in my third year of law school, and I can file a Trademark application. Not so for a patent. This is a much more complex process.
It's the POTENTIAL for confusion that determines whether the names will conflict.
The potential for confusion is one of the major tests used to resolve trademark infringement actions (whether the name, product, logo, packing is so similar to that of another that consumers will confuse the two). The potential for confusion does not determine whether the two names will conflict and is moot in this case since the two names are exactly the same (iPhone vs. IPHONE). The questions is, rather, who has the right to use the name, not whether the potential for confusion exists (pretty clearly the case since the names are almost identical). Sorry to nitpick.
I have plenty of experience with this.
In what capacity?
Absolutely, 100%, WRONG.
1. "It's like a patent":
Patents are nothing like trademarks (substantively and for the most part, legally): the two cover wholly distinct forms of intellectual property which are governed by completely different legal principles: Patent protection was established by the US Constitution (Article 1, Section 8, p. 8, while Trademarks were only protected under state common law before congress passed Title 35. That said, the law governing the two do share similarities in that Patents and Trademarks can be abandoned. This is not the clear cut case of Trademark infringement that some are making it out to be. Whether a Trademark has been abandoned is an extremely fact-specific question, therefore, both sides can present facts to support their side of the issue. Not only does Apple have a chance to win this lawsuit, but Cisco could end up in hot water if they manipulated evidence to suggest that they were actively using the iPhone name when in fact the trademark COULD have been abandoned in 2005 due to unuse. See this article for evidence of this possibility:
http://blogs.zdnet.com/Burnette/?p=236
In general, IP law discourages intellectual property squatting: you either use it, or you lose it.
2. It's like a patent, first in, first served.
The United States does not use a first to file system like Europe does, but uses a first-to-invent system. Congress considered revising the Patent statute to a first-to-file system in 2005, but this change has not been approved. This means that, contrary to your assertion, you could be the first-to-file, but it someone else invented the invention covered by the patent first, it makes no difference: the first inventor prevails.
In Europe (and pretty much the rest of the world), the first person to file is considered the inventor. Period. Not so in the US. What this means is that with Patents, even is a person is first-to-file and receives a patent, another person can initiate an interference action and try to prove that they were the first inventor:
http://en.wikipedia.org/wiki/Patent_interference
See 35 U.S.C. Section 102(g): Conditions for patentability; novelty and loss of right to patent.
"A person shall be entitled to a patent unless -
(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person's invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed..."
MPEP 2300-Interference Proceedings
The patent application process/filing of a patent is one of the area where Patent law and Trademark law have almost nothing to do with one another (see point 1 above). Let's just say that I am in my third year of law school, and I can file a Trademark application. Not so for a patent. This is a much more complex process.
In what capacity?
OK someone with some actual legal training, after reading the linked article and the last post I feel another "John Kerry" moment within me is about to occur. Yup, I'm back to my original thoughts that this case does have some legal merit for Apple.
Like I said initially after visiting the USPTO website, the timing just looked very suspicious, and the linked article seems to bare this out.
Signed,
Flip-Flopper-In-Training
Like I said initially after visiting the USPTO website, the timing just looked very suspicious, and the linked article seems to bare this out.
Yes. I am sure that Apple will argue that Cisco put stickers outside of packaging during the time period after the trademark was abandoned to make it look as if the trademark was in use when in fact it wasn't. Cisco could make equally compelling arguments against this contention.
Signed, Flip-Flopper-In-Training
You're not a flip-flopper, you're just looking at both sides of the issue and then choosing one.