By Kasper Jade
Published: 01:00 PM EST (10:00 AM PST)
A Delaware company specializing in air purification is suing Apple Inc. in order to get the iPod maker to stop causing a ruckus over the airPOD name used to market its desktop-based air filtration systems.
In the 4-page complaint, filed last week in an Illinois district court, BlueAir Inc. alleges that counsel for Apple have been making a big stink since last summer over its request for a trademark on term airPOD.
Lawyers for the Cupertino-based gadget maker have reported asserted likely confusion of BlueAir's airPOD mark with Apple's iPod mark, threatening to file oppositions with the United States Trademark Office, and more recently "making threats of seeking attorney fees and more."
BlueAir charges that it's Apple, rather than itself, which is therefore creating the actual controversy between the parties and causing harm by way of those threats of trademark infringement and unfair competition.
Introduced in June of 2006, BlueAir's airPOD product stands at 6-1/2 inches wide, 13 inches tall, and 3-1/2 inches deep. It comes clad in aluminum with the mark "airPOD" embossed on its front-side and must be plugged into a 110-volt outlet to operate.
"There is no reasonable likelihood of confusion, mistake, or error in the marketplace for persons of even the lowest perceptive capabilities who are seeking an iPod music player considering or buying an airPOD desktop air cleaner instead," BlueAir's attorneys at Chapman and Cutler LLP argue in the suit.
"'AirPOD' and iPod are distinct in sound, appearance, and connotation as applied to their respective goods," they add. "Although the ending --POD portions are identical, the initial portions AIR-- and i-- are distinct in appearance and connotation and distinguishable in sound as well to any ordinary observer."
Nevertheless, the complaint claims that Apple requested an extension with the trademark office to allow it time to file opposition to BlueAir's trademark application, and that lawyers for the Cupertino-based firm subsequently e-mailed and telephoned counsel for BlueAir demanding the company withdraw its application for the "airPOD" name and rebrand its product under a new mark not containing the three successive letters "POD."
"On information and belief, neither BlueAir nor Apple knows of any single bona fide instance of confusion between the AIRPOD mark on personal desktop air purifiers and the iPod mark for personal portable music players," BlueAir's attorneys say. "Indeed Apple has not opposed federal registrations or impending federal registrations of AIRPOD marks for air fresheners, carrying cases, and industrial air filters, nor has it, on information and belief, sought to stop the hundreds of other uses of AIRPOD and AIR POD marks for other products such as 'air time' recorders for snowboarders, and the like, findable in any Internet search for those terms."
BlueAir is seeking an order from the Court that would end the harassment by declaring that its airPOD mark is not confusingly similar to Apple’s mark and that it may be used and registered without further interference from the iPod maker.
