iSee iPod iNfringement

Many are dubious about the assertion that Apple is justified in its claim that podcasting is infringing on the iPod trademark, but I would argue we need not linger too much in subjectivity to determine whether Apple is justified or not.

My three premises: the use would be less seriously infringing if the term's “pod” reference refers to something other than the iPod. The use is legitimate if “podcasting” is so different from the iPod brand that the two will not be confused; that is, the former will not gain a halo effect from the latter and the latter will not be damaged by the former. The use of “podcasting” is also non-infringing if it was used before the term iPod.

My analysis follows.

Point 1: Acronyms and Revisionism. My friend Mark countered my earlier arguments with the suggestion that the “pod” in Podcasting refers to “portable on demand.” I'd never heard it in that sense, except for in reference to the storage units, but that doesn't mean it isn't true. The Wikipedia had someone add this reference to the beginning of the podcasting article the other day, however it was removed, which makes me suspect that the editors saw it as a suggestion of questionable quality, just as I do. That does not seem to be what people typically mean when they use the term. Is this really anything other than a revisionist change in defense of fears that Apple would cry foul? The Guardian, the publication that first used the term “podcast” has this to say on the matter:

According to Creative Labs, it stands for “Personal On Demand broadCAST” (from www.zencast.com/about). However, that interpretation differs significantly from that intended by web developer Ben Hammersley. He first used the phrase in an article in the Guardian on February 12, 2004, as a synonym for the unwieldy “audioblogging”. He meant it as a contraction of “broadcasting” (because the content is sent over the net) and “iPod” (as a byword for MP3 players).

The article continues with some serious support for the assertion that podcast usually doesn't mean “portable on demand audiocast.”

Says Hammersely [the coiner of the term]: “Creative are talking rot. The pod in 'podcast' was obviously and blatantly meant to refer to the iPod. The accusation that I'd use such a clumsy acronym invites another one: […censored…].” We're sure Creative will spell out what that means.”

Now, there is no denying Creative and just about anyone else can say “but wait, now when we use the term we mean this, that, and the other thing.” What must be recognized however is that in this case such a claim is revisionist. If people could get away with such claims, I could start using Cokemachine to refer to my fancy new soda dispensing system and, when Coca-Cola tried to sue me, say, “I'm not referring to Coca-Cola, I'm referring to 'Cola Out of a Kool Electronic MACHINE.'” I think everyone knows that we'd have something other than “podcast” as the name of audio/video blogging if not for the fact that the iPod name has become synonymous with the MP3 player. If such a weak defense was accepted in cases of trademark infringement, virtually anyone could weasel out of trademark infringement.

If we rule out the “but, but, but, I don't mean iPod!” defense, we still have to deal with two other parts of my premise. First, that perhaps podcasting and iPods are so different the trademark is not an issue and, second, perhaps Apple wasn't first to use the term (unlike my earlier claim).

Point 2: Different Sectors. Apple argues that it is not infringing on the Apple Corp. trademark on the principle that no one is confusing Apple Computer with the Beatle's Apple Corp. record label. They are two companies in very different markets, and even now that Apple sells music, it doesn't do so in a way likely to confuse consumers. Does this apply to the iPod versus “podcasting”? This is admittedly somewhat subjective, but I would say no. “iPod” refers to a “digital audio player” (DAP), “podcasting” refers to an audio-blog that is typically could be played back on a DAP. Note that while the two are not the same thing, podcasting is something that is directly related to the iPod in such a way that it seems logical that “I have an iPod, so something broadcast from it would be a “podcast.” Just because my Cokemachine isn't a soda in and of itself does not clear it of infringement.

That leaves us with one point, and this is the one I think you'll want to challenge if you want to show that “podcasting” isn't infringement.

Point 3: Prior Art. If “podcasting” or “pod” existed as references to DAPs and activities involving DAPs prior to the iPod, this would clear “podcasting” from infringement. For example, I used the name SAFARI for my CMS before Apple used it for its web browser. If Apple decided to sue me for “infringing” on its common law trademark claims to “Safari,” I could easily (albeit expensively) counter that I used it first. I have plenty of archived proof showing I used the name as early as 2000 on the web and even earlier — 1999 — in private correspondence. Can anyone show that “pod” was associated with a DAP prior to the Fall 2001 launch of the iPod? Better yet, prior to the development of the iPod?

I have tried to be fair with the points listed above. I challenge anyone to show that any of them (or all of them) are unreasonable. If you cannot, I would suggest it is disingenuous to continue to insist Apple is legally wrong to do what it is doing. This doesn't mean you can't continue to argue that Apple is making a bad business decision in suing over this term, of course. I'd find myself in agreement with such a view, but that is a story for another post.