Eye on Winer

Dave puts out an interesting perspective on the latest goings on in the world of ‘podcasting’ as a trademark. He demonstrates that he knows a little bit about trademarks but, as we all know, Dave is no attorney, trademark or otherwise. Here’s where he’s right.:

Although I am not a lawyer, it seems to me that iPod is an excellent trademark, it’s not descriptive, it’s a made-up word, until Apple came up with it, it meant absolutely nothing. So, from the start, it was a defensible trademark.

There’s no doubt that iPod is a trademark. The problem comes in when he starts to talk about why ‘podcasting’ isn’t an infringement on the iPod mark:

I think podcasting may create some confusion for the podcasters but not for Apple. No one confuses a podcast with an iPod, any more than car wax is confused with a car.

Trademark law is not about confusing one good with another. Certainly that’s one thing against which the holder of a mark is protected, but that’s not WHY trademarks exist. From the earliest days of common-law trademark the purpose has been to avoid consumer confusion as to the SOURCE of the goods. To protect the good-will that a company has built up and to protect consumers from being misled into purchasing or using a product that doesn’t come from where it seems.

In this sense, Apple has a decent (though not air-tight) argument that the term ‘podcast’ infringes on the iPod mark. Why? Because consumers might believe that things calling themselves “podcasts” are made, endorsed, or otherwise supported by Apple. Whether this can be explained away is irrelevant, the problem is that the average consumer might not know that ‘podcast’ is a general term referring to a specific kind of technology instead of a source-identifier.

This entry was posted on Sunday, September 24th, 2006 at 6:22 pm and is filed under Apple, Dave. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.