This action seeks preliminary and permanent injunctive relief, monetary
relief, and attorneys’ fees based on Apple’s i) federal unfair competition and false designation of origin in violation of § 43 of the Lanham Act, 15 U.S.C. § 1125(a); and ii) Arizona state trademark infringement, unfair competition, and injury to business reputation in violation of Arizona common law. By virtue of iCloud Communications’ long and extensive use of the iCloud Marks, its advertising and promotional campaigns and expenditure of substantial monies thereon, iCloud Communications had, prior to June 6, 2011, established significant goodwill and valuable rights in and ownership to the iCloud Marks in connection with computer telephony and electronic data transmission and storage services.
The goods and services with which Apple intends to use the “iCloud” mark are identical to or closely related to the goods and services that have been offered by iCloud Communications under the iCloud Marks since its formation in 2005. However, due to the worldwide media coverage given to and generated by Apple's announcement of its “iCloud” services and the ensuing saturation advertising campaign pursued by Apple, the media and the general public have quickly come to associate the mark “iCloud” with
Apple, rather than iCloud Communications.
Although Apple aggressively protects its trademark rights, Apple has a long and well known history of knowingly and willfully treading on the trademark rights of others—a history which began as early as the 1970s when Apple was first sued for trademark infringement by the Beatles record label, Apple Corp. Although the case was settled on the condition that Apple not enter into the music business, Apple entered into the music business in the 1990s and was sued again.
Apple’s announcement and launch of its “iCloud” cloud computing service appears to be just one more example of Apple’s “act first and worry about the consequences later” approach to trademark use as even the most cursory Internet search—which could have easily been conducted by any of the legion of Apple’s inhouse marketing or legal staff—would have revealed the prior, long term usage of the iCloud Marks by iCloud Communications. Additionally, it is likely that consumers will be given the misimpression that Apple, not iCloud Communications, is the source of the services offered under the iCloud Marks and/or that iCloud communications is an unauthorized user of and is infringing upon Apple’s trademark rights. Such misimpressions will damage iCloud Communications’ reputation. The loss of and damage to the goodwill in the iCloud Marks, the damage to iCloud Communication’s reputation and confusion among consumers is likely to continue—and, in fact, intensify—unless Apple is enjoined from its use of the mark “iCloud.”
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Science, Computers & Technology Updates, Intellectual Property Updates
Federal, 9th Circuit, Alaska |
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