What’s more fun than speculating about the outcomes of court cases? Well, most everything. But it does pose an opportunity for a healthy debate. So let’s play What If…

What might happen if Cisco and Apple in up in the courtroom?

Leaving aside for the time being that “iPhone” is a pretty weak name for a product that’s much more than a simple phone, it does appear that Cisco has been the proper registrant of the iPhone trademark since 2000. Based on my understanding of trademark law (note: not a lawyer), there’s no legal mechanism for Apple to seize the mark for itself.

However, Apple’s argument seems to be that the product category of cell phone is sufficiently different from Cisco’s offerings that it’s not infringing at all. That’s the reason why Dodge Viper and Viper car alarms co-exist peacefully, even though they exist in the same industry. However, considering that the iPhone is more than just a cell phone (revolutionary communications device that uses WiFi and IP when available) I’m not sure a judge would agree with that claim.

So based on what I know (again, not a lawyer), here’s what I think could happen, if the two companies don’t settle out of court:

Judge agrees with Apple

In this situation, the court decides that the products are not enough alike and Apple’s use of the name does not constitute infringement of Cisco’s trademark. Both companies can then legally use the same name on different types of products. Cisco cries a bit and is prevented from offering a product similar to Apple’s iPhone.

Judge agrees with Cisco

The reverse happens. The distinction between the products is held to be too fine and the iPhone name is deemed to be exclusively Cisco’s mark. The company is possibly awarded damages. Apple then has to negotiate for use of the name, or rename its product.

Judge rules that iPhone is too generic for trademark protection

Wired Pete at Cult of Mac makes the argument that because “the public,” after months of speculation and fantasizing, already identifies the iPhone name with Apple.

One could make the argument that the incredibly small portion of the general population that trades rumors about future Apple products hardly makes up “the public,” but lets run with it. Popular sentiment would not be sufficient grounds to award an exclusive trademark to Apple. In this case, a judge could rule that the trademark is now too diluted and generic for any one entity to own. “iPhone” would then mean “any kind of internet-enable communication appliance” not any one specific device.

Apple is not likely to argue this. “iPhone” would not mean much to the company then and any other company could release a similar product with the same name. Plus, it could lay the groundwork that i- product names in general are too generic to trademark protection. Admittedly, that’s my largest legal stretch, but once again: not a lawyer. Feel free to debate it though.

But that all just fun speculation. This is not likely going to make it to court, but it is providing a lot of press for both companies.

That’s my take. Feel free to kick it around.

Update Jan14: Check this post at TechnicallyTrue for lots of deep background on the iPhone fight.