Thursday, December 10, 2009

The iTouch and the myTouch

When I first saw a TV advertisement for the myTouch telephone, I thought instantly of the iTouch, which as I understand it, is an iPhone without the phone app (I have never held either in my hands and have only seen the former in anyone else's.)  And having spent a few years working occasionally on the linguistic side of  trademark law, I wondered if Apple did not have a case for trademark infringement.  One of the tests is that the new mark evoke the notion that the product it identifies might have the same origin as the product identified by the earlier mark. If surveys were to demonstrate that a significant proportion of consumers share my perception, Apple would be a major step forward toward proving its case.
A case for infringement would have to consider the similarity of the marks. They are, of course, very similar. We have in the case of “iTouch,” a lower case “i” followed by the word “Touch,” and in the case of “myTouch,” we have a lower case “my” followed by the same word. The letter “i” when capitalized and only when capitalized refers to the person speaking or writing something. Here, though, it is not capitalized. In the case of “my” we have a word that refers to the speaker/writer of something or, in the case, of “myTouch,” the owner/user. One thing is clear, the “i” of “iMac” or“iPod” or “iTunes” or or “iPhone” is normally not intepreted as referring to the owner/user.
In fact, when the iMac was first introduced, Steve Jobs claimed (see the title link)
The iMac comes from the marriage of the excitement of the internet with the simplicity of Macintosh.
He went on to say that it was designed with the fact that the primary use people wanted a personal computer for was to get onto the internet. Jobs cited a set of "i"-words that he wanted to associate with the iMac, namely "internet, individual, instruct, inform, inspire." Therefore, the voice of he creator provides compelling evidence that there is no semantic connection between the “i” of “iTouch” and the “my” of “myTouch.”  When he associates the iMac with these other "i"-words, he severs the relationship between "i" and the owner/user more completely even though one of these words is "individual."  Note  that this word is not equivalent in meaning to "personal."  In fact, the iMac was and is used in environments in which many individuals use a particular machine.
The fact that the lower case prefix”i” is attached to a wide range of products distributed by Apple argues for it having only the meaning “a product distributed by Apple.” Originally, this “i” primarily referred to the internet though Jobs added some other associations. But the iPod breaks this connection. Apple crated iTunes in the hope that people would buy music using iTunes and then downloading it onto their iPods. That would involve internet connectivity. However, one could use an iPod without ever connecting it to a a program that connected to the internet by simply ripping one's own or a friend's music and converting it to a format the iPod could read and downloading it directly.
It is clear that there is a significant morphological similarity between “iTouch” and “myTouch” for they share a morpheme. However, the first has a prefix that refers to the internet primarily but also to other things or just signifies that the product is made by Apple, and the other has a prefix that refers to the owner/user. In addition to the morphological similarity between "iTouch" and "myTouch," thre is an enormous overlap in product function.  In fact the only substantive difference is that the iTouch cannot be used to make calls. So, Apple would find it difficult to keep HTC and T-Moble from using the mark “myTouch.” Nevertheless, as I said, I suspect a survey of consumers aware of the  iTouch, confronted with this new product,  would connect “myTouch” to “iTouch” and thereby to Apple. At the very least, HTC would seem to be ripping off some of Apple's market good will. I am not a trademark lawyer but I think that is a 'no no.”

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Blogger Full Metal Attorney said...

Hey LG, glad to see you're still at it. As far as the trademark law goes, I think you're right (or close enough). It's been a few years for me, but I seem to remember a "confusingly similar" standard was out there. However, it's not called the iTouch, but instead the iPod Touch. It's still confusingly similar, in my opinion.

By the way, I've been discussing immigration lately, which I expect to be the next big topic in Congress after health care is done. If you're interested, check it out.

1:50 PM

Blogger The Language Guy said...

Hey, Kelly. Good to hear from you. You are clearly right that the true name is the "iPod Touch." I don't know where I got the name "iTouch" from but it is clearly out there. Check out this site or or this reference to the iTouch Tablet or this Amazon site. In searching for how it might have been that I got this wrong, I also found the existence of an ITOUCH internet service site. It may be a "full service internet service" provider but it has a very Mickey Mouse web site. I wonder if Apple just decided not to fight for the name "iTouch." The idea of an "iPod Touch" is totally out of keeping with all the other names, which consist of one word, and, moreover, this product seems to bear very little resemblance to the iPod. Maybe they knew people would shorten it.

2:15 PM

Blogger Full Metal Attorney said...

I can't believe Apple is letting them get away with it, on a product that is directly competing. Try looking up iTouch on Wikipedia, and it redirects you to "iPod Touch." This means enough people are getting confused already, and the similar vowel sound on top of that.

As far as the product names, Apple started to add a lot of two-name products when they started the iPod Shuffle and iPod Nano lines, which initially were less expensive alternatives to the iPod, and the iPod Photo, which was a more expensive version with additional functions. They later renamed the iPod "iPod Classic," therefore none of them have a one-word name anymore. They later created the iPod Touch. I suppose they also added the second name to make it seem more special and to convince current iPod owners to buy one.

11:03 PM

Blogger Mrs. Geezerette said...

I know nothing about trademark law and little about iPods and the like, but your argument, LG, makes sense to me.

Hi Kelly. It is good to see you here. It almost feels like a small reunion.

12:02 AM

Anonymous Anonymous said...

This comment has been removed by a blog administrator.

3:39 AM

Blogger Unknown said...

This is clearly differentiate between the two technologies.
- J.
Web Solutions

6:33 AM

Blogger Unknown said...

As an earlier poster indicated, the apple device is called "iPod Touch"

Not "iTouch"

Amoung others, Tyco and Logitech hold a trademark on "iTouch"... Not apple

Enter iTouch into the following search engine to see the list:


11:54 AM


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