You may recognize the icon at the top left as Apple’s signature icon for the Music application on the iPod, iPad, and iPhone. Apple applied for a trademark for the icon, but it looks similar to a trademark that is owned by MySpace. The Trademark Trial and Appeal Board (TTAB) upheld an examiner’s decision to refuse Apple’s trademark protection for the orange music icon.
The registered mark was issued in 2008 to a music service called iLike, which lets people download and share music. MySpace acquired iLike in 2009 and shut it down earlier this year. Apple made an argument to the TTAB saying that not a single consumer has confused their music icon with the trademark that is owned by MySpace. Apple also said that MySpace’s trademark was “weak” because 8 other companies obtained trademarks that look similar with the music notes.
However the Board dismissed those arguments and performed a “likelihood of confusion” analysis to conclude that an average consumer would not be able to tell them apart.
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.
Apple is able to appeal the TTAB decision to a federal district court. You can read information about the decision below: