Steve Jobs had a pension for secrecy and a talent for building up the public's interest until he introduced the name of a new product. A classic is the two thousand seven introduction of what has become Apple's largest business, an iPod, a phone, and an Internet communicator, an iPod a phone. Are you getting it? These are not three separate devices. This is one device, and we are calling it iPhone. Apple is still just as obsessed with secrecy, but there have been leaks about the next iPhone that
will launch later this year. A stainless steel and glass body, different screen technology, and a three D sensor that recognizes your face. What we don't know its name. It's one of Apple's most fiercely guarded secrets. It may be called the iPhone X to celebrate its tenth anniversary, or iPhone pro, but Tim Cook, following Job strategy, doesn't want anyone to know for sure until he says that name on stage.
My guests are Michael Rishard, professor at Villanova University School of Law, and Brian Conroy, a commercial and trademarks listitor at Rennick's List. Michael, we've heard a lot about Apple and it's patent wars, but not so much about trademark. Explain the difference between a patent and a trademark. Sure of patent is protection that you get on an invention you have, and at protection excludes the world from using that invention. A trademark, on the other hand, is more
of a creature of commerce. It's what you call your device, or it can be a logo, or it can be product packaging. But it's something that is distinctive to your product that causes people to reckon knives that it's associated with your product and not somebody else's. And Apple has used techniques over the years to keep its product name secret. Why what is the importance of filing for a trademark
and keeping it secret until launch? Well, the reason you file for a trademark is to lock out other people from filing on the same mark, and so that's why you do it. The problem is, when you file for a mark, the whole point of it typically is to let the world know that you're doing it so nobody
else picks the same mark. However, if you are into marketing and keeping your name secret, which Apple is not every company is, but Apple is, then it's very difficult to file your mark and also keep it secret so that you can have the Steve jobs like we now have to give you the iPhone reveal at an event where everybody can do and awe. Brian, what's the current approach used by Google, Amazon and other tech companies that
exploits a rule in the US Trademark Act. Um, Well, it's a it's a rule that's not just in the
U S Trademark Act. It's a rule that comes from a treaty dating back to the eighteen hundreds, and so pretty much every country has something similar, and it basically allows you to file for a trademark in one of the countries that's a signatory to the Convention, and then if you apply in another country that's also signed up to the Convention, which as I say, most are, including the US, then you have what would be a six month priority window where your application in the US is
afforded the same dat of application as the application you filed in the first country. So the technique that a lot of the big corporations are using is to file their first application, which is their priority application, in a jurisdiction that doesn't have an online searchable database, so there's no way for most people to know that the trademark has been filed, and therefore they kind of get to
have their cake and eat it. They get the priority date so that no one else is going to be able to jump ahead of them, but they also get the secrecy so that nobody knows they've done it, so they can apply for their US trademark after they announce whatever it's going to be, the iPhone X, but they already have a date for filing for that from the other country previously. So tell us what you did to spoil Tim Cook's surprise names last year. Um, Well, what
I noticed was a pattern that Apple used. So as I said, there there is a number of countries where there are no online searchable databases. One of them is Jamaica. And I noticed that in two thousands and sixteen two two thousand and sixteen, nearly all of Apple's secrets, if I could ca of that, trademarks were filed in Jamaica as a priority filing date, and then the US application followed sometime within the next six months. So I said
to my boss, I've got a crazy idea. UM, I think I can find out the names of the next Apple products that are going to be launched at the big launch event coming up, and I want to hire a local agent in Jamaica to go into the Jamaican trademark office and do a local search and see if I can find any filings there that suggest what the next names are going to be. And you found them, I did, yeah, well, well sort of, yeah, I found the iPhone seven and iPhone seven plus, which were announced
at the next event. But then the touch bar and some of the other products like EarPods weren't announced for another and maybe three or four months after that. But yeah, there was There was fifty seven I think trademarks that have been filed in Jamaica that that hadn't been announced yet. If I could put it like that in thirty seconds, and we will continue with with more of this, Michael. But why is it so important? These names are not
exactly surprising names or inventive names. Why the intense secrecy around them. Well, Apple likes to keep everything about its product launch secret. It likes to keep product details secret, and so it's got protected. You know, it's gone after people who leaked that data, and so the name is also very important, and so I think it's part of an overall plan so that even though the iPhone seven is not terribly uh secret, uh, you know, surprising that other ones might be. And so they really want to
keep a stream going. We're talking with Michael Risch, professor at Villanova University School of Law, and Brian Conroy, commercial and trademark solicitor at Rennick Solicitor about Apple's quest to have the names of its iPhones and other products secret
until the reveal comes on stage. Michael, we just heard about how um Brian got the information ahead of time from the Jamaica Trademark Office, and then the Jamaica Trademark Office changed its its rules and and the way it did things in order to help to keep things more private. But what interest do trademark offices haven't keeping secrecy? Isn't the reason they have these databases is for the public to be able to review them. Right that It's it's
a mixed bag. So the political economy here is pretty clear. Jamaica is getting these filings, uh, and so it wants to keep getting the filings, and therefore it's going to do things that helped to keep getting the filings. On the other hand, if you clamp down on searches too much, then you're basically useless as a as its trademark office.
That said, the types of searches most trademark applicants do are not the types of searches that people are doing when they're trying to figure out what Apple is going to name its new product. That kind of a search is sort of a broad exploratory search. You're looking for searches within a certain time period. You're looking for searches filed by certain companies, maybe with certain lawyers, but you don't because you're looking for shell companies. But you don't
need any of that. If you're searching a trademark office just to see whether you're infringing somebody's trademark, all you really need to do is search on the name that you're interested in using, and Jamaica allows you to do that. If you come up with new widget two point oh, you can say to Jamaica, I want to see if anybody else's trademarked widget two point oh, and they say, no, nobody has, and you can file your trademark. Uh. But that doesn't help very much when you're trying to guess
what Apple is going to name their next product. Unless I guess you could ask them, hey, I want a trademark iPhone ten? Is anybody trademark that so? So? Brian? How is it now very difficult or impossible if it's a Jamaican filing to figure out what the next name is going to be if it's filed in Jamaica. I think the answer is yes, because, as the other guys mentioned, unless you speculatively search for iPhone X or for anything you think it might be UM, then you're not gonna
be able to find it. So what I did previously was exactly as he said. I did a search for all trademarks filed by Apple in the six months prior to their launch event, and I got a list of them all. And you just can't do that anymore, I would say, just on the iPhone thing, they don't always
register the iPhone name. So they've iPhone seven and seven plus registered I think four C and six, but not all of them, which they don't need to do because once they have iPhone in the bag, the number that comes after it isn't that important from a trademark point of view. Did they ever go after you? Did anyone fin any lawsuit again? You or anything? God, I hope not. Well if if, if this is a surprise way of telling me I'm being served. No, I just wanted to
know they don't like leakers. And well it's not a leak though everything that I published as a matter of public record, you see, there's nothing wrong with us. I mean, just because the way the Jamaican office works. I mean, if you file an application in the States, everyone will be able to see it about four days from now, even though you won't get it for possibly months. In Europe, it's even quicker. If you file an EU application now, in about two hours, anyone will be able to find it,
so you know it's there at the time. At least it wasn't against the rules of the office. So no, no, there's been nothing. Okay, So, Michael, you were talking about Apple's history of going after leakers. Is there besides this reveal that they want to do on stage? And as I mentioned, the names that they've come up with, some are not really all that inventive in my mind. But is there an effect of an early reveal of the
name on foreign markets? There can be, but only if they didn't file um, only if they didn't file for the trademark rights, which sometimes you hear about. So some foreign markets are register only in the US you have to actually have an intent to use or actually be using the mark in order to get protection for it. But in China, for example, you can register a mark whether or not you have any intent to use it, and within you have like three years to show whether
you're using it or not. And so what you find is that if people are not careful about registering and their name gets out, then somebody else can beat them to the punch. Now, for Apple, the the real problem would be is if the name leaked out before they filed it with some trademark office somewhere, because even China is a member of the Paris Convention and we'll give
you priority to your foreign filing. But if the name leaked out even before then, uh, then somebody could rush to China and file trademark application and this has been known to happen, lock basically lock US companies out. Well, I'm going to be very disappointed if it's called iPhone X or iPhone pro because those are the names that have been have been around. Thank you both so much.
It's been very interesting. That was Michael Rish she's a professor at Villanova University School of Law and Brian Conroy's Commercial and trademark solicitor at Rennick Solicitor