In a decision handed down by the Trademark Trial and Appeal Board at the United States Patent and Trademark Office (USPTO), Apple has been denied an application for a trademark on the term Multi-Touch. Apple originally applied for the trademark on January 9, 2007, the day the iPhone was introduced.
A lawyer for the USPTO denied Apple's initial trademark application and the company appealed to the Appeal Board. The board upheld the initial refusal to grant the trademark.
For trademarks, "the greater the degree of descriptiveness the term has, the heavier the burden to prove it has attained secondary meaning." The trademark attorney pointed out that the term "multitouch" has taken on generic meaning, being used by a wide variety of publications to describe the touchscreen technology on Android phones, tablets, and notebooks.
Thus, from the foregoing, we find that “multi-touch” not only identifies the technology, but also describes how a user of the goods operates the device. Based on the evidence discussed above, as well as other evidence in the record, we agree with the examining attorney that MULTI-TOUCH indeed is highly descriptive of a feature of the identified goods. We now consider whether applicant has submitted sufficient evidence to establish acquired distinctiveness of this highly descriptive term.
There is a list of items that can determine if a mark has "acquired distinctiveness", including sales success, length and exclusivity of use, and advertising expenditures. The board ruled that Apple has not met the burden to be granted a trademark on multi-touch.
We've posted the full decision to Scribd.
