Apple crunched in driPhone trademark dispute

CHRIS GARDNER
Last updated 10:25 18/12/2013
driPhone
CHRIS HILLOCK/Fairfax NZ

Naming rights: Hayden Crowther, founder and director of driPhone, a company that makes waterproof smartphone cases, celebrates his win over Apple in court.

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Apple Inc has been ordered to pay the court costs of a Hamilton inventor who it went after for selling waterproof smartphone cases under the driPhone brand name.

The US company behind the iPad, iPod and iPhone lost its trademark claim against Hayden Crowther which said the driPhone name amounted to "passing off" and was likely to deceive consumers or cause confusion.

Mr Crowther said he was happy with the $2950 the Intellectual Property Office ordered Apple to pay him, but the two-year legal struggle with one of the world's largest companies had cost the company in other ways.

He would not share the exact figure, but it was somewhere around 10 times what he had been awarded.

"On the return I am getting for the payout, it's a very poor result. It would have been better off being spent on Project Kiwiana in Otorohanga or other charity rather than me going into a battle but there's obviously marketing opportunities that come with this."

Assistant commissioner of patents and trademarks Jane Glover found the driPhone and iPhone names were not sufficiently similar to cause confusion in the marketplace.

"The prefix ‘dri' looks and sounds quite different to the prefix ‘i'," she ruled.

Intellectual property litigation and enforcement specialist Kim McLeod, of AJ Park in Auckland, assisted Mr Crowther with his case.

"It's a good outcome for him," Mr McLeod said. "He has always believed his trademark should be recognised and he's been vindicated."

Mr Crowther said the dispute had put the business on hold for two years.

"It did weigh heavy on me for a long time," he said.

"It's not the ideal way to start up a business. It's hard enough getting a start-up off the ground as it is without start-up money disappearing into legal land. It's been tough.

Mr Crowther said the dispute had held up product launches, the development of new lines and caused potential investors to doubt the company's prospects.

"I certainly would not like to have to do this again.

"If I didn't think I was right, I wouldn't have started the fight. It's obviously been concerning, as I am not a trademark expert.

I am a small guy who thought I had come up with a great name."

"I am obviously happy and relieved that I have won it now, I thought that would be the outcome, just really super relieved that it's all over and done with in New Zealand."

Apple has one month to appeal.

"I'm not sure where that goes," Mr Crowther said.

He may have won the battle in New Zealand, but Mr Crowther hasn't won the war around the globe.

"Apple has also opposed my trade mark in the European Union and China.

"It's a little bit like Sir Edmund Hillary climbing up a steep mountain . . . I've still got to conquer the bigger mountain overseas. I am hoping that it will be a little bit easier, it's given my confidence a boost, but by no means is it done and dusted overseas."

The driPhone trademark is already registered in Australia and Mexico.

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Apple's attorney, Barbara Sullivan of Henry Hughes attorneys, was not available for comment.

An Apple spokeswoman declined to say whether the company intended to appeal.

- © Fairfax NZ News

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