Rounded Corners Not Enough to Win This Apple Court Battle

Apple has been denied trademark protection for its ubiquitous music icon because it was judged too similar to a design owned by MySpace.

Just weeks after a jury confirmed Apple’s patent on rectangles with rounded corners, the Trademark Trial and Appeal Board declared that Apple couldn’t trademark its orange musical-note icon on the grounds that people may confuse it with another design (with pointy corners!) that was already registered.

The earlier icon was registered in 2008 by iLike, a music-sharing service acquired by MySpace the following year.  Despite clear design innovations that included 3-D shading, a mottled background, a faux reflection and, of course, Apple’s patented rounded corners, a panel of trademark judges upheld an examiner’s determination that the two icons looked too much alike.

You can read the full decision at GigaOm, which helpfully highlighted the crucial  “likelihood of confusion” test:

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.

Some might question whether Apple’s icon and anything on MySpace are really “encountered by the same classes of consumers,” and Apple may well appeal the decision to a federal district court — but its lawyers had better hurry.  If this week’s snazzy relaunch of the redesigned social networking site catches on, enough music fans may actually return to MySpace to make the trademark panel’s decision pass the giggle test.

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