California - Apple Inc. on Wednesday failed in its efforts to persuade the U.S. Patent and Trademark Office to allow it to trademark the square, orange music player app icon familiar to iPhone and iPad users.
The Trademark Trial and Appeal board ruled that Apple's proposed trademark for the icon is too similar to a trademark already registered to the now-shuttered MP3 download service iLike, which also features a double musical note inside an orange square.
Apple sought to register its icon in relation to computer software used to play recorded audio content, sold as a feature of mobile devices like the iPad and iPhone.
The trademark examining attorney refused registration to Apple on the grounds that the proposed trademark is likely to cause confusion with iLike's registered trademark. iLike's trademark is registered in relation to providing temporary use of software for adding music and video profiles on the internet, listening to MP3s and sharing MP3s and music playlists with others.
The appropriate test is not whether the trademarks can be distinguished when subjected to a side-by-side comparison, but whether they are sufficiently similar in terms of their overall commercial impression so that confusion as to the source of the goods and services offered under the respective trademarks is likely to result, the TTAB said.
Though the trademarks are not identical, they both comprise a double musical note in an four-sided orange box, the TTAB noted.
"The basic similarities in the marks outweigh any specific differences that might be apparent upon a side-by-side comparison," the board said. "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."
Apple's software and iLike's services, meanwhile, perform similar functions in relation to controlling digital music, according to the board.
Apple argued that consumers looking for MP3 software are careful to distinguish between competing services since, among other reasons, many such services require the entry of personal information.
"One need only look around at any public gathering, or even just walking down the street, and you will notice many people with their handheld devices," the TTAB said. "While this group of people may include discriminating consumers, it also includes those who are not very careful."