Why Don’t They Report the Rest of the Story?

June 15th, 2011

So as we reported over the weekend, Apple is being sued for trademark infringement over the use of the iCloud name by a Phoenix-based VoIP provider known as iCloud Communications. The action is curious, since Apple s said to have already paid for the icloud.com domain and U.S. trademark in a transaction with Xcerion of Sweden, the apparent owner of both.

Are you with me so far?

Thus, you have to wonder how iCloud Communications, if they are not the actual trademark owners, were somehow allowed to continue to use that name. Or maybe they didn’t draw enough attention to themselves, since they are, despite what you’ve heard, mostly providing something other than what most people regard as cloud-based storage. Sure, VoIP uses the Internet, and a bank of servers to manage the system, but the that’s not the same as providing cloud-based storage, backup, syncing and streaming services. On the other hand, it appears do run their own data centers, so they say, where they offer both Web hosting and colocation, the latter allowing you to have your own server installed at their site. That’s likely where the confusion might arise, although Apple’s iCloud features seem sufficiently different to avoid any possible confusion.

Unfortunately, it appears that almost none of the stories I’ve seen on the subject cover much beyond the filings and a few related issues. You’d think that the significance of this lawsuit is sufficient to warrant a little leg work, or at the very least, a casual visit to geticloud.com, the site run by iCloud Communications. If they bothered, they’d see that the possibility of confusing Apple’s iCloud with them is just about zero. Besides, if they aren’t asserting a trademark on the site with the appropriate registration symbols next to the name, and another company already sold that trademark to Apple, what right do they have to claim ownership of the iCloud name?

So maybe the name was registered with the state in which the company was incorporated, which would, say, prevent someone else from using the name iCloud in that state.

Since I wanted to see what really was going on, I searched for the iCloud trademark at the Arizona Secretary of State’s site, and came up with an Articles of Organization document dated May 9, 2011, for an iCloud Networks LLC. That company has the same address as iCloud Communications, so it is most likely the same firm.

That filing is curious, because iCloud Communications’ complaint claims they’ve used the name since 2005, and, as I mentioned in a previous column, the site boasts of a “25-year track record” and then, a few paragraphs later, a “20-year track record” in providing telephone-related services. They also claim to have been formed in 1985, meaning 26 years, although perhaps the anniversary date isn’t at hand. If you’re confused over these different dates, let me assure you that I am as well. I’m also concerned that the media didn’t do their due diligence to learn something about this company before publishing the story.

Now operating without a registered trade name isn’t a crime, so long as the company has the appropriate licenses to do business. But claiming to own a trademark without evidence will do nothing but add another logjam to the already backed up Federal courts. It will, I suppose, result in some nice paydays for a few lawyers, and, I suppose there’s always the hope on the part of the plaintiff that Apple will toss some cash the way of iCloud Communications to make them go away.

At the same time, such an action carries a high risk. Apple could just as well go to the mat and force the complainant to run through loads of cash before giving up. Or file a counter action that would possibly prevent use of the name iCloud under any circumstance.

But please realize that I’m only coming to these conclusions based on the evidence readily available online. It is quite possible iCloud Communications does have a genuine U.S. trademark to assert, even though that information doesn’t seem to be available at their site.

What makes situations of this sort even more confusing is that there may be an iCloud company of some sort in any or all of the other 49 states. Most may lie under the radar, although you’d think Apple would have examined corporate filings in search of a conflict. Then again, if iCloud Communications, or, rather, iCloud Networks LLC, never registered the name until after Apple acquired the iCloud trademark, the case is open and shut.

My real concern, however, is the way the media often limits coverage of what may be an important story to quoting a press release without comment, or just summarizing a legal filing. If that’s supposed to be what journalism stands for in the 21st century, perhaps I’m in the wrong business. But I’m not giving up — at least not yet.

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4 Responses to “Why Don’t They Report the Rest of the Story?”

  1. Terry says:

    What I find funny is the fact that slapping an “i” in front of “cloud” is so obviously a borrowed idea. It’s obvious to me that this company has changed it’s name at some point in the last 25 years, if not last few years. What was it’s name before? It’s highly unlikely that it was iCloud all those years ago when no one, no one stuck and “i” in front of it’s name.

    • @Terry, Courts will look at the dates when the name was first used, when the registrations were filed, and so forth. If iCloud Communications never used that name in any legal filing prior to May 9th of this year, I think they’re toast. They may end up paying Apple money, but I’m no lawyer.


  2. Sam says:

    According to the Internet Archive Wayback Machine ( http://wayback.archive.org/web/20070101000000*/http://www.geticloud.com/ ), they’ve been using “geticloud.com” since at least March 9, 2007. Not that that makes their case defensible, but at least we know they didn’t quickly register it after Apple’s announcement.

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