The icon on the left represents iOS’s music app. The icon on the right is for a now-shuttered Myspace service called iLike . Apple introduced the Music app to iOS in 2007 with the iPod touch. iLike was founded in 2006, granted its trademark 2008, acquired by Myspace in 2009 and then shutdown earlier this year. But in a recent decision by the Trademark Trial and Appeal Board, Apple cannot trademark the icon for the iOS Music app. The reasoning? The marks and services are too similar and would likely cause confusion.
Born out of Garageband.com, iLike was a social music discovery site that allowed users to download and share music. But then Myspace bought the site for $20M and eventually shut it down earlier this year. The iLike url no longer resolves nor redirects to Myspace Music.
Per the document below, Apple applied for its Music trademark in April 2010, two months before previewing iOS 5 to the public. Prior to iOS 5, Apple’s mobile platform used an iPod icon to signify the music locker system. Apple indicated within its trademark application that the Music app is “computer software for use in reviewing, storing, organizing and playing pre-recorded audio content, sold as a feature of handheld mobile electronic devices…”.
However, an examiner for the US Patent and Trademark Office denied Apple’s request. And so it went to the Trademark Trial and Appeal Board.
Last Tuesday the TTAB upheld the original ruling despite Apple’s argument that no one ever has nor will confuse the two services. The TTAB sees it differently stating although there are differences between the icons, “we find that the basic similarities in the marks outweigh any specific differences that might be apparent upon a side-by-side comparison. The differences in the details of the respective depictions of the double musical notes and their background designs do not suffice to distinguish the marks in terms of their overall commercial impressions. Regardless of the differences which might be apparent in a side-by-side comparison, both marks depict a double musical note in an orange rectangle.”
The board also notes that Apple and iLike’s services are very similar, thus, combined with the similar icon, could confuse the average consumer.
GigaOM notes that Apple can appeal the ruling. So, at this point, Apple will either fight it out in the courts or roll out a new app to the gazillion iOS devices, which will ironically likely confuse the average consumer as well.