Believe it or not common sense actually wins out from time to time in our legal system, including the convoluted mess known as patent and trademark law. In fact, it happened this week as the United States Patent and Trademark Office (USPTO) essentially told Apple it's off its rocker for trying to trademark the term "multi-touch" and denied the Cupertino company's application trying to do exactly that.
Of course the USPTO was a bit more diplomatic about its rejection and less colorful in its word choice, but the point remains. Multi-touch is too general a term for Apple or anyone else to trademark. That didn't stop the company from trying, which argued that "multi-touch identifies how the interactive surface of the kind used on" Apple's products operate, according to a court document MacRumors uploaded to Scribd . It appears Apple was trying to put itself in position to sue handset makers using the term multi-touch, three of which were mentioned in the filing. The USPTO didn't bite Apple's argument.
"We find that 'multi-touch' not only identifies the technology, but also describes how a user of the goods operates the device," the USPTO wrote in its decision. "Based on the evidence discussed above, as well as other evidence in the record, we agree with the examining attorney that MULTI-TOUCH indeed is highly descriptive of a feature of the identified goods. We now consider whether applicant has submitted sufficient evidence to establish acquired distinctiveness of this highly descriptive term."
The USPTO later went to acknowledge that the iPhone has sold like gangbusters, but that alone doesn't necessarily prove the purchasing public associates multi-touch with Apple.
"Simply because the applied-for term has been used in association with a highly successful product does not mean the term has acquired distinctiveness," the USPTO concluded.