“Siri, I’m upset.”

“All shall be well, and all shall be well, and all manner of thing shall be well.”

Okay — so she’s not the deepest or most prophetic robot that ever tried to cheer me up, but we have all come to simultaneously know, love, and hate Siri. She saves us time by writing out our grocery lists (despite her confusion of homophones), keeps us from getting lost (although she tends to take the long way) and sometimes, on a Monday, simply provides just enough sass to keep us drudging until 5:00p.m. Apple is very proud of its little lady. Referring to the robotic personal assistant, the company advertises, “Your wish is its command.”

So, when the U.S. Trademark Office turned down Apple’s 2012 application for protecting Siri’s trademark as a “social network,” Apple stood up for its loyal virtual assistant. This week, the company filed an appeal with the Trademark Office, claiming that the examiner was not correct in his conclusion and that Siri deserves another chance.

Initially, it was determined by the examiner that Apple is not currently using Siri as part of any social networking business. Therefore, Siri cannot be protected by a social network mark. However, Apple argues that in many ways Siri accompanies social network websites such as Facebook and Twitter. For example, Siri can post and update statuses to both sites via a user’s voice command, allowing Siri to serve as a direct tool for online social interaction.

Some wonder whether this move from Apple’s legal team means that Siri’s social media future is bright, with more innovative, multi-platform media capabilities to come. This is somewhat expected, as our society inches closer and closer to artificial, technological assistance. We already have Siri and the Roomba robot vacuum. It’s only a matter of time before we’re able to fill our cubicles with a bunch of Wall-Es, right?

Others write this legal move off to be merely proactive. After all, Apple’s fierce legal team loves intellectual property and has been accused many times of creating a litigation bubble around its products, making it exponentially more difficult for competitors to enter the market with rival products. Apple is known to get crafty with its legal practices. In the past, the company has cited design patents when questioning the originality of Samsung technology (Apple Inc. v. Samsung Electronics Co. Ltd. et al.), protected its products with utility patents, trade secrets and copyright, and even obtained trade dress to uphold certain shapes, colors, or materials of a product as its own (the sneakiest of all the IP tactics).

The word “Siri” has definitively been Apple’s for two years. Apple holds the trademark for Siri as voice recognition software; however, Siri’s primary function seems to be unclear across the board.

I wondered if Siri was worried, so I asked her if she was upset. It turns out, she’s quite the optimist, answering, “Everything is fine. All of my circuits are operational.”

Only time will tell whether Siri’s purpose can be legally defined. In the meantime, we can still appreciate her as our trendy, ditzy assistant whom we resent but would never dare fire.

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Let’s talk toys. In the trade dress community, there appears to be some naughtiness afoot. Here’s the nitty-gritty on trade dress: it’s the law covering a product’s shape, color, design, texture, and even how it’s packaged and presented. If a competitor makes a product that is sufficiently similar to these attributes of another product so as to cause consumer confusion — BAM! Trade dress infringement.

Fuhu Inc., a company that specializes in child technology, is bringing suit against IdeaUSA for infringing on the trade dress of its tablets. The California-based company claims that IdeaUSA mimicked the “butterfly shape” of Fuhu’s “Nabi” tablet for their similar product, IdeaPlay. As further indication of the butterfly theme, Fuhu named their tablet Nabi because it means butterfly in Korean. So clearly, the butterfly-idea-shape-thing was taken, but did that stop IdeaUSA?

Due to licensing formalities, I can’t reproduce images of the two tablets, but click these two links for the visual –> the Nabi tablet and the IdeaPlay.  By utilizing soft edges and elongated corners, Fuhu created a product that contains the technology to which our generation’s children should be exposed, with their trademarked “Drop Safe” bumper to protect the tablet from realistic experiences. The design is brilliant. Easy to grasp. Resistant to shatter. However, this brilliance gave the infringing version equal shine because they are the SAME physical product.

Fuhu claims that consumers will likely be confused as to the source of IdeaPlay because of the very apparent similarities between the two products. Well, of course. YES. The IdeaPlay is nothing short of a knockoff. It isn’t difficult to grasp why IdeaUSA would want to copy (notwithstanding the fact that it’s illegal) the exact makeup of Fuhu’s kiddie tablet. The Nabi has nabbed more than $118 million in revenue, amounting to a glorious growth of 42,148% in just three years. (WHY DIDN’T I CREATE THIS?!) I say all of this to make the following point: to win a trade dress case, the makeup of your product needs to be distinct or well known by the public. The cute round edges of this children’s tablet are what make it work, and this design is clearly favored by consumers.

While the Nabi tablet ranges from $100 for the kindergarten version to $290 for the preteens-early-adolescents rendition, IdeaPlay is currently selling on Amazon for a solid $129. Welp. I know which gift would be bought in my household this Christmas season. And for a product that looks almost identical to its legitimate, though more pricey, counterpart? Why not? From an intellectual property standpoint, this is deliberate theft. Fuhu is rightfully seeking punitive damages here. IdeaUSA intentionally sought to capitalize off of the financial gain generated by the Nabi. Fuhu’s design was placed on the market first. The only visible difference between the two products is that the IdeaPlay has its camera placed on the boundary of the tablet, as opposed to being affixed to the touch screen like the Nabi.

This brings me back to the Victoria’s Secret case I covered a few weeks ago. There is the same blatant intellectual property theft occurring in both cases. Which brings me to my next question -why are businesses disregarding trademark law? Definitely a topic worthy of some coverage. It’s starting to seem as though the Lanham Act carries no weight, or at least not enough to deter competitors from swiping phrases and designs every week.

Gena.

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Featured image courtesy of [LadyDragonflyCC – >;< via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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