Apple Files Application to Register iPhone X's "FACE ID" as a Trademark. Will it Obtain a Registration?

Apple's new iPhone X comes with a facial recognition feature that unlocks the phone simply by scanning the owner's face (although the accuracy has come under some fire lately). That feature is call the Face ID, and Apple just filed a federal trademark application for the name.

The trademark application for FACE ID, which Apple filed on October 23rd, is for the stylized version of the name seen above. The application covers:

Computer hardware and software for secure biometric authentication, and password management and protection for use on computers, handheld mobile digital electronic devices and mobile telephones

in Class 9 and was filed on an intent-to-use basis (which suggests Apple is not using this as a trademark yet, but has a bona fide intention to do so in the near future - likely because pre-orders for the iPhone X didn't start until October 27th). Interestingly, Apple also claims a priority date of April 24, 2017 based on a trademark application it filed for this same mark in Liechtenstein. Claiming priority based on a foreign application is permitted under Section 44(d) of the Trademark Act. See also TMEP 1003.

Can Apple obtain a registration for FACE ID on the U.S. Patent and Trademark Office's Principal Register though? To obtain such a registration, Apple will need to show, among other things, that FACE ID is not merely descriptive of the listed hardware and software for secure biometric authentication.

A trademark is considered merely descriptive "if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). For example, BED & BREAKFAST REGISTRY was held merely descriptive of lodging reservation services. In re Bed & Breakfast Registry, 229 USPQ 818 (Fed. Cir. 1986). Merely descriptive trademarks can be registered on the Principal Register if they become distinctive of the applicant's goods or services in the marketplace, but that is nearly impossible to show if a trademark was only recently adopted. TMEP 1212 et seq.

Assuming Apple obtains a registration for FACE ID on the Principal Register, it would have the exclusive, nationwide right to use that term in conjunction with computer hardware and software for secure biometric authentication (subject only to those who may have acquired trademarks rights in this term for the same or related goods prior to Apple's application). If it must amend this application to the Supplemental Register (which I call the minor leagues of trademark registrations) because the Trademark Office deems FACE ID merely descriptive, it would not obtain those exclusive, nationwide rights. TMEP 801.02(b); 15 USC 1094.

So, is FACE ID merely descriptive of computer hardware and software for secure biometric authentication? That will be up to the attorney at the Trademark Office assigned to this application (and perhaps eventually the Trademark Trial and Appeal Board and a federal court) to decide.

According to my quick search, this is the first trademark application for FACE ID filed by Apple and the 47th trademark application filed by the company in 2017.

Apple Files Trademark Application for New Icon Based on Prior-Filed App in Trinidad & Tobago

As one might expect, Apple Inc.'s federal trademark portfolio is quite expansive. As I've blogged about before, Apple has filed over 1,000 trademark applications with the U.S. Patent and Trademark Office, including several for the various icons found on many of its electronic devices.

An application filed on  March 22 appears to be for one of those icons. One that date, Apple filed a federal trademark application for design seen below covering "computer software for transmitting, streaming, receiving, playing, routing and storing audio, video, images, and multimedia content" in Class 9.

Apple filed the application for this icon on an intent to use basis, suggesting it is not yet using this mark but has a bona fide intention to do so in the near future.

Interestingly, Apple is claiming, under Section 44(d) of the Trademark Act (15 USC 1126(d)), a priority date of September 23, 2016 based on a trademark application for this mark it filed in Trinidad and Tobago on that date. This is a strategy Apple and other companies have been known to use to establish an earlier filing date while keeping the contents of the trademark application secret, because some countries, like Trinidad and Tobago, do not maintain publicly accessible trademark databases like the U.S. Under Section 44(d), so long as the U.S. application is filed within six months of the foreign application, and the applicant has a bona fide intent to use the mark in the U.S., an applicant can claim priority relating back to the filing date of an application filed in most foreign countries. See also TMEP 1003.

So what is this new icon? Is it related to the iPhone 8 set to be released later this year? As far as I can tell, it appears to be a combination of the AirPlay and AirDrop features on the current iPhones (pull up the shortcut menu from the bottom of your screen and you'll see what I mean). Other than that, it is unclear.

Although Apple has filed thousands of trademark applications in the past, 2017 seems to be off to a slower start. According to my quick count, Apple has filed only four U.S. trademark applications so for (including one of the icon above). Two of those applications were related to television shows: one for VITAL SIGNS covering, in part, "entertainment services in the nature of ongoing television programs in the field of drama" and the other for PLANET OF THE APPS covering, in part, "an ongoing reality based television program provided through the Internet."

Apple Files 1,135th Trademark Application with "Add to Apple Wallet" Icon

Apple, Inc.'s federal trademark portfolio is quite extensive. By my unofficial count, the company has filed approximately 1,135 trademark applications with the U.S. Patent and Trademark Office (although only about 712 are "live" as of the date of this post). These applications cover everything from product names, to app icons, and, of course, Siri.

The latest trademark therefore comes as no surprise. On April 13th, Apple filed a federal trademark application for the "Add to Apple Wallet" icon seen below (WALLET disclaimed).

Apple filed this trademark in Class 009 for computer software related to organizing boarding passes, coupons, gift cards, and sporting tickets, processing mobile payments, personal information management, and verifying credit card transaction and payment information. 

Apple has had success in registering icons as trademarks before and I suspect this application will be no different. Apple is using Section 44(d) of the Trademark Act to claim priority for this mark as of October 22, 2015, based on a trademark application it filed in Jamaica on that date.

Apple Files Trademark Applications for SMART CONNECTOR Interface

On February 13th, Apple, Inc. filed federal trademark applications for SMART CONNECTOR and APPLE SMART CONNECTOR in Class 009 for "electrical and electronic connectors; electronic connectors for handheld mobile digital electronic devices and keyboards." These applications refer to the new design interface that allows communication between Apple's Smart Keyboard and the iPad Pro, as seen below.

These trademark applications are not to be confused with patent applications. Trademarks will only protect the terms SMART CONNECTOR and APPLE SMART CONNECTOR as used on electronic connectors. In other words, it would prevent another person or entity from using a term similar to "Smart Connector" to describe some sort of electronic connector. It does not protect the way the Smart Connector works. A patent application is required for that.

These two applications bring the total number of federal trademark applications filed by Apple, Inc. to 936 (that's a lot of filing fees), with 716 of these filings still being active (applications not yet registered plus registrations), and 553 live, registered trademarks. That's quite a portfolio.

Apple Files Trademark For "Activity" App Logo Days Before September Special Event

On August 26th, Apple, Inc. filed a federal trademark application for the app logo below as it relates to

computer software for tracking, storing, viewing, monitoring, displaying, transmitting and managing user interaction data concerning exercise, physical activity, steps taken, distance walked or run, time standing or sitting, calories consumed, calories burned; computer software for tracking, monitoring and managing information and goals regarding a heath and fitness program; computer software for mobile telephones and mobile digital electronic devices[.]

The filing comes exactly two weeks before Apple's September 9th Special Event in which the company is expected to release a new iPhone 6S and iPhone 6S Plus along with a new, sleeker version of Apple TV. Apple submitted the screenshot below as proof of the application's use in commerce.

The application states Apple has been using this app logo since April 24, 2015 (which is exactly the date Apple Watch released) but I could not find it in the App Store for the iPhone. However, it does appear that this app is already being used on the Apple Watch. I also found at least one article reporting that this app appears on your phone after you connect it with an Apple Watch.

Given the timing of Apple's recent filing, and the language in the trademark application related to "computer software for mobile telephones," I would not be surprised if this new Activity App received some attention at the company's September 9th Special Event.