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Apple loses trademark bid for “Apple Music” over priority issues

On Behalf of | May 26, 2023 | Business Law & Litigation

Technology giant Apple Inc. recently tried to register a federal trademark for the phrase “Apple Music,” which was to be used in conjunction with live performances covered by the company.

Some might think this would be an open-and-shut case, as who could identify the phrase with anything other than products and services from Apple Inc.? However, an appellate court recently denied Apple’s trademark bid in a case that ultimately dealt with the issue of priority.

Apple’s flawed legal case

Jazz musician Charlie Bertini challenged Apple’s trademark bid. Bertini argued he had trademark rights to the phrase “Apple Jazz” since 1985, which gave him priority.

Apple claimed it had priority, because in 2007 the company purchased the Beatles’ “Apple Corps Ltd.” which was trademarked in 1968.

The appellate court ruled that Apple was not permitted to attach Apple Music, which is used for live shows, to the Apple Corps trademark because Apple Corps was used for a separate type of product, music recordings.

Thus, Apple did not have priority over Bertini, and its trademark application was denied.

What is priority?

This case brings up the interesting issue of priority in trademark law. A trademark belongs to whoever first used the mark to sell goods or services in commerce. This person or entity has “priority” over any other entity that would later try to use that same mark or a similar mark.

The linchpin in priority is use. Whoever was first to use the mark gets trademark rights, even if they were not first to file for trademark rights for that mark. Use also means that simply getting an idea for a mark is not enough to give you priority. The mark must actually be used in commerce to be trademarked.

The concept of priority in trademark law can be complicated. You do not want to find yourself embroiled in an intellectual property dispute surrounding a mark you are using and want to trademark. Litigation can interfere with business operations and possibly cause you to lose the right to use the mark. Researching whether you have priority prior to applying for a trademark can save a lot of trouble down the road.