Apple (s aapl) is used to getting its way when it comes to intellectual property. It came up short, however, in getting protection for its famous music icon after trademark judges said last week that consumers might confuse the mark with one owned my MySpace.
In a decision issued last Tuesday, the Trademark Trial and Appeal Board upheld an examiner’s decision to refuse Apple trademark protection for the famous orange music mark that appears on iPhones and computer screens. It refused on the grounds that it was too similar to another mark:
The mark on the right was issued in 2008 to a music service called iLike which let users download and share music. MySpace obtained iLike in 2009 and shuttered it earlier this year, according to Wikipedia.
In its argument to the TTAB, Apple stated that not a single consumer has confused its music icon with the mark owned by MySpace. It also argued that the trademark was “weak” because eight other companies have obtained trademarks in the same field with music notes. The Board, however, dismissed these arguments and performed a “likelihood of confusion” analysis to conclude that an average consumer would muddle the marks:
In view of the facts that the marks are similar, the goods and services are related and are encountered by the same classes of consumers, we find that applicant’s double musical note and design for “computer software [..]” is likely to cause confusion with the registered mark comprising a double musical note and design [..] for listening to MP3’s and for sharing MP3’s and music playlists with others.
Apple can appeal the TTAB’s decision, which was first reported by Law 360 (sub req’d), to a federal district court. The company didn’t immediately return a request for comment.
You can read a highlighted version of the decision here: