Not even an infringement in theory

This must be one of the most remarkable infringement cases of this year. Dutch company Lens Media wants to take Apple to court for doing nothing about an IP infringement that is taking place in the AppStore.

Since recently the company is selling an app through the Apple AppStore called “iTheorie” (Dutch for: “iTheory”). The app helps you to learn traffic rules in preparation of the driving licence exam. Lens Media has – according to themselves – requested Apple several times to delete an app from the AppStore with the identical name.

Now that Apple has refused to do so, Lens Media states that Apple is infringing their trade name rights, as it creates confusion amongst their students.

Markmatters.com finds this case interesting for a number of reasons.

First of all, we seriously doubt that if there is an infringement, it can be based on trade name rights. If you have acquired trade name through use, you can only act against other trade names. It is doubtful whether the alleged infringing app, can be seen as a trade name.

Furthermore, the sign iTheorie is rather descriptive, lacking all distinctiveness. The scope of protection, if any, should be very, very small. In fact, the trademark application of the word mark iTheorie has been provisionally refused by the Benelux Trademarks Office.

And finally, did you see the logo that Lens Media is using for their app? Are you serious? Isn’t that the Internet Explorer logo, incorporated in the stylized “iTheorie” mark? Maybe Lens Media should take a good look in the mirror before claiming any kind of IP infringement.

We hope this will be continued, although we believe the Apple IP folks will not be scared by this doubtful case.

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