Apple's "iPad Mini" Trademark Application Rejected by Patent Office

For being "merely descriptive"

@NickyColman/foter.com

In January, the U.S. Patent Office rejected Apple's attempt to trademark "iPad Mini,"* releasing the official letter today. The office called the term "iPad mini" "merely descriptive" because "the prefix 'I' denotes 'internet'" and "[t]he term 'pad' refers to a 'pad computer' or 'internet pad device,' terms used synonymously to refer to tablet computers, of 'a complete computer contained in a touch screen.'" Apple has trademarked dozens of names, from "AirDrop" to "Xserve." AppAdvice.com notes Apple still has issues to resolve with the trademark of "iPad" in China and "iPhone" in Mexico and Brazil, where a local firm is selling something it calls the IPHONE.

You can read the full patent office's rejection letter here.

More Reason on intellectual property. 

*iPad, by the way, is trademarked

Comments

[Cheradenine Zakalwe]

There are libertarian concerns about IP law, but I'm not sure how this is one of them.

[Another David]

Two reasons I'm interested:

1) It demonstrates the capriciousness of the patent office. "iPad" is a generic term? Really?

2) It's fucking hilarious.

[Xenocles]

It seems to me that certain trademark infringements could amount to a kind of fraud. If I market a knock-off under a well-known mark, I am implying that the products are the same, even if the famous product underwent strict quality control and my knock-off was thrown together with parts I got from the dumpster. That's fradulent, and fraud is certainly a libertarian concern under certain wordings of the NAP.

When the products are actually identical, as is increasingly the case these days (where the brand-name and the generic often literally come from the same factories), this concern doesn't hold quite as much. But the principle still holds, and there's arguably still a minor form of theft whereby the generic product benefits from the name-brand's marketing efforts without paying for them.

[Xenocles]

To be clear, if I say "Compare this product to Brand X," there is no fraud since I'm inviting the consumer to draw his own conclusions and making the distinction between the two products clear. That's different from saying "This product is Brand X," which seems to be closer to what some of these knock-offs are doing.

[JW]

This isn't a knock off. No way, Jose.

[Xenocles]

It looks a lot like [Brand X] but there is no attempt to market it as such. That passes my Potter Stewart test.

[heller]

One may or may not be implying that they are the same product. Just because the mark is famous doesn't necessarily mean that any fraud is being done.

[Xenocles]

That's why I limited it to "certain" infringements.

[Drave Robber]

An interesting case is 'Rolex replicas' - most sellers these days don't even try to pretend they're genuine. Is there any wrongdoing in this?

[Xenocles]

It's a Stewart test. For me, the sale price is generally so low that there's really no reasonable confusion. If the replicas are that good I'd be more concerned that the guy is fencing stolen genuine goods than infringing on a trademark.

[heller]

But then you said:

If I market a knock-off under a well-known mark, I am implying that the products are the same, even if the famous product underwent strict quality control and my knock-off was thrown together with parts I got from the dumpster. That's fradulent...

[Xenocles]

Yeah, if I make a knockoff with the protected marks on it, that amounts to a claim that the product is the branded one.

"Rounded corners" is not a trademark in my book. "iPhone" and the Apple logo are.

[heller]

Umm... it doesn't really matter that rounded corners are not a trademark in your book though. They can be in the real world. One problem is that there is no clear line between logo and design. Another is that most fake goods are sold with a trademark not to defraud the person buying it, but in concert with the buyer in order to fool others into thinking the buyer has this status symbol. Actual fraud is reserved for much higher end items like antiques and collectibles, which can be plausibly sold secondhand.

[Xenocles]

I'm not defending all trademark claims or trademark laws. I'm outlining my concept of a defensible trademark system. That's all. So it matters a great deal what's in my book for this discussion.

[chorizo]

The libertarian concerns about patent and copyright abuse shouldn't really extend to trademarks, which are completely different. Trademarks are intended to protect consumers against fraud - for example so that a consumer doesn't get duped into thinking they're buying an Apple product because there's an Apple logo on the box. Patents and copyrights, by contrast, are government enforced monopolies to reward people for innovation/creativity. Patents and copyrights get abused because they are powerful monopolies sometimes being given to completely trivial innovations/creations, thereby hampering the progress of technology overall.

A federal trademark registration, especially for a deep pockets company, is mostly cosmetic. Apple can still sue anyone who sells a computer product labeled iPad Mini under common law trademark. The federal registration mainly just gets you advantages in burden of proof and the damages you can get. Apple can easily shut down competitors (their real goal) using common law trademark law and no federal law at all.

This is also a pretty weak rejection by the PTO and I expect it to get reversed eventually. The word "pad" is not descriptive of "an internet device." The fact that tech-unaware people will refer to any tablet as an iPad does not mean the term has become genericized.

[heller]

But it has nothing to do with preventing fraud. People can and do copy signature marks even if they are trademarked (indeed trademarks are the only marks worth copying). And they have the same problem as other patent laws; they can be abused in order to punish companies that aren't behaving fraudulently.

[Xenocles]

I could abuse the right of self-defense to disguise murder. That doesn't diminish the right of self-defense.

[heller]

The reason trademarks are "diminished" in my eyes is that they aren't based on the libertarian concept of property. Trademarks shouldn't be considered property, just as any other idea shouldn't be considered property. Trademark abuse is a problem that results from this misidentification, it isn't the reason I think trademarks are invalid.

[Xenocles]

There's another good reason for protecting trademarks; if I flood the market with poor quality look-alikes of your product your brand's reputation could suffer, resulting in a sales hit or the need to spend more money on marketing to compensate. Reputation might not be tangible, but it is an important asset.

[heller]

So? Almost every player in the market has to deal with imitations of their product vying for the same customer base. If you're not offering consumers a better product or a better price, why should they care?

[Xenocles]

Again, there are imitations and there are outright fraudulent claims of identity. You'd be justifiably upset if someone went to your workplace and used your credentials to do a bunch of shoddy work in your name, especially if there were no way to convince your management of the switch. When management fires you or you get passed over for a raise there's a quantitative injury from the hit to your reputation. I see no reason why a brand's reputation is substantially different from a personal reputation.

[Acosmist]

Not patent law. At all.

[heller]

Fine other, IP laws.

[Jordan]

Notorious patent troll gets a dose of karma.

[heller]

Live by the sword, die by the sword.

[Xenocles]

The "i" stands for internet? I thought it was just a continuation of the marking that began with Apple's iMac product. I don't think the internet was really such a big deal back then.

[heller]

I thought the "i" was supposed to represent individuality. Like, "look at how independent I am, I buy Apple products!"

[mad libertarian guy]

Yes. Then no.

[mad libertarian guy]

It wasn't, and the "i" doesn't stand for "internet".

The judge clearly knows nothing of the history of Apple products which, though in itself is no biggie, would seem to be paramount to a judge set to the task of having a sense of familiarity with their products.

[Acosmist]

Yeah this office action is completely wrong, and will be overturned. If it's right, Apple can't have trademarked "iPad" at all.

Also, it's not a judge, people. The examiner is not a judge.

[mariyana]

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