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Apple’s (NASDAQ:AAPL) orange iOS music icon will not get legal protection after the Trademark Trial and Appeal Board upheld an examiner’s decision that ruled the image was too similar to a mark already owned by Myspace. The registration for an orange and white square icon, featuring a music note, was issued in 2008 to music service iLike, which was later acquired by Myspace.
While Apple argued that the registered mark was “weak” because several other companies had trademarks featuring music notes, the board dismissed the argument on the basis of a “likelihood of confusion” analysis. “Moreover, consumers may not recognize the differences because they do not typically set out to find them,” the board said in its ruling.
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The board is also concerned that Apple’s music app and iLike’s downloading and sharing feature are too similar in function, raising the probability of confusion. “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,” the ruling said.
Apple can appeal the decision to a federal district court.
Myspace was bought by Specific Media from News Corp (NASDAQ:NWSA) for $35 million last year and is managed by Tim Vanderhook, Chris Vanderhook, and Justin Timberlake.
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