Trademark Cases are the Best!

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Joe Leitsch, our Technology Support Specialist, and I are both avid iPhone users. He recently pointed me to a trademark dispute bubbling up in the iPhone App industry about the use of the phrase "pull my finger" by the owners of the iFart application, a flatulence sound producer. The issue: does use of the phrase infringe Air-O-Matic's trademark PULL MY FINGER for its own flatulence sound producing app.

Notwithstanding the silliness of the apps, the trademark dispute is a classic. iFart is claiming that it wants to use the term "pull my finger" not as a trademark, but rather in the descriptive sense of the phrase. Air-O-Matic is countering trademark infringement. Now the issue is, will consumers be confused?

Not to let the air out of Air-O-Matic's argument (sorry, had to), but Air-O-Matic's problem is that it chose a trademark that is very descriptive. I conclude this because I believe that it would be understood by most consumers to relate to the "pull my finger" flatulence related prank. Because of this, a strong argument can be made that others in the passed-gas sound producing industry have a need to use the phrase. The Lanham Trademark Act actually provides for such a defense, 15 U.S.C. § 1115(b)(4) (no infringement of a trademark where the use "is descriptive of and used fairly and in good faith only to describe the goods or services of such party.").

 

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