Academic

Faculty Blogs: Trademark Cases are the Best!

Joe Leitsch, our Technology Support Specialist, and I are both avid iPhone users. He recently pointed me to a trademark dispute bubbling up in the iPhone App industry about the use of the phrase "pull my finger" by the owners of the iFart application, a flatulence sound producer. The issue: does use of the phrase infringe Air-O-Matic's trademark PULL MY FINGER for its own flatulence sound producing app.

Notwithstanding the silliness of the apps, the trademark dispute is a classic. iFart is claiming that it wants to use the term "pull my finger" not as a trademark, but rather in the descriptive sense of the phrase. Air-O-Matic is countering trademark infringement. Now the issue is, will consumers be confused?

Not to let the air out of Air-O-Matic's argument (sorry, had to), but Air-O-Matic's problem is that it chose a trademark that is very descriptive. I conclude this because I believe that it would be understood by most consumers to relate to the "pull my finger" flatulence related prank. Because of this, a strong argument can be made that others in the passed-gas sound producing industry have a need to use the phrase. The Lanham Trademark Act actually provides for such a defense, 15 U.S.C. § 1115(b)(4) (no infringement of a trademark where the use "is descriptive of and used fairly and in good faith only to describe the goods or services of such party.").

 Editted to add links

Full post as published by University of Louisville Law Faculty on March 07, 2009 (boomark / email).