In a recent ruling, the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office denied Apple a trademark on its iTunes musical note icon. Trademark judges said that consumers might confuse the orange Apple icon with MySpace’s previously registered orange musical note trademark in connection with music services. Despite Apple’s argument that consumers have not confused the two marks in the past, the TTAB said that because “the marks are similar and the goods and services are related and encountered by the same classes of consumers”, Apple’s “double musical note and design for computer software is likely to cause confusion” among consumers with MySpace’s registered mark.
Apple may appeal the decision, which would make for an interesting case in light of the fact that last month Apple argued its own design icon case against Samsung, among other claims. In that case, Apple argued, with great success, to prevent the use of Samsung icons, though they were largely different from Apple’s icons, based on similarities in only miniscule details. For additional information regarding patent and trademarks, contact Pamela Riewerts at Riewerts@bowie-jensen.com.