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Cisco v. Apple II: AM followup on trademark lawsuit

As you all know by now (and saw Scott post last night), the trademark discussions between Apple and Cisco over the use of the iPhone name did not resolve cleanly and Cisco has filed suit. Negotiations were apparently in progress up until Monday night, with the remaining issues focused on interoperability between the Linksys iPhone and Apple's new cellphone, according to Cisco's spokesman. Cisco didn't expect Apple to introduce the phone as "iPhone" without a completed agreement.

Apple's response? Spokeswoman Natalie Kerris pointed out that the iPhone trademark has been poorly defended: there are several other VoIP products and at least one set of headphones that are already using the "iPhone" or "IPhone" brand.

The New York Times reports that companies like Comwave, Nuvio and Teledex already sell products with an iPhone name; there's also a full rundown in this preannounce post at the Barron's blog.

Quoting Ms. Kerris, via News.com:

"We think Cisco's trademark suit is silly...We believe (their) trademark registration is tenuous at best," said Natalie Kerris, an Apple spokeswoman.

"There are already several companies using the iPhone name for VoIP (voice over IP) products," Kerris said. "We're the first company ever to use iPhone for a cell phone. If Cisco wants to challenge us on it, we're confident we'll prevail."

As noted previously, I am not a lawyer; my minimal knowledge of trademark law tells me, however, that when a trademark falls into disuse, is not defended against infringement, or becomes a generic word (aspirin), it's fair game for other companies to use. Cisco claims that it has pursued infringement actions against these other companies, but it seems that many of them have been selling "iPhone" products for some time.

OK, time to call on the TUAW Law Squad: any professional opinions out there?

Update: Cisco's general counsel blogs on the suit here; Harvard Law on the loss of trademark here. If Infogear/Linksys/Cisco had a three-year lapse in using "iPhone" for a product at any time between 1996 and today, that's abandonment. If not, they have a case.

Update II: Check the Internet Archive to see Cisco's iPhone support page from 2000-2006. Not an aggressive defense of trademark, but the product was there...

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