1 September 2023TrademarksSarah Speight

Apple settles ‘Smart Keyboard’ TM dispute with USPTO

Tech firm agrees to settle four-year fight after failing to convince the USPTO to grant a trademark for its iPad accessory | Appeal Board found the term ‘Smart Keyboard’ generic and ineligible for a federal trademark.

Apple and the US Patent and Trademark Office (USPTO) are close to resolving a dispute over the tech firm’s rejected ‘Smart Keyboard’ trademark application.

In a joint motion filed at a Virginia Federal Court yesterday, August 31, the two parties said they have agreed to settle the case in principle, four years after the USPTO first rejected Apple’s trademark application in 2018.

The dispute centred on Apple’s ‘ Smart Keyboard’, a magnetic iPad cover that also functions as a keyboard and stand.

The Trademark Trial and Appeal Board (TTAB) upheld the USPTO’s decision in 2021, finding the phrase was a generic term for "technologically advanced keyboards”.

But in a complaint filed last October, Apple argued that the term ‘Smart Keyboard’ was distinctive, having rarely been used to refer to anything other than the product in question. Apple also claimed that the word mark had developed a secondary meaning as a result of the product’s “substantially exclusive use” over a number of years.

The tech giant further asserted that the USPTO had granted trademark registrations to hundreds of marks in the technology space that consist of ‘Smart’ with another word, including many of its own such as ‘Smart Cover’, ‘Smart Case’ and ‘Smart Folio’.

However, the TTAB reiterated that ‘Smart Keyboard’ is a generic term and ineligible for a federal trademark.

The Board said that the evidence—including dictionaries, third-party websites and articles, retail promotions, patents and patent applications—supported its finding that purchasers and prospective purchasers understand the term ‘Smart Keyboard’ as referring to ‘technologically advanced’.

It is unclear what the terms of the settlement agreement are, although this week’s joint motion includes a request for a short extension of the current summary judgment briefing deadlines to allow both parties time to finalise their agreement and file a stipulation with the court.

The hearing on motions for summary judgment will remain as previously set on October 27, 2023, at 10am.

The case was heard in the US District Court for the Eastern District of Virginia, Alexandria Division.

Counsel for Apple is Robert Scully of Blankingship & Keith, and Dale Cendali of Kirkland & Ellis; while Counsel for the USPTO is US attorney Jessica Aber.

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