So many of us have become hopelessly addicted to our Blackberry smartphones and personal messaging devices that the devices are frequently referred to as “Crackberries.” Seeking to capitalize on this addiction, beginning in December 2006, Defining Presence Marketing Group (“DPMG”) sought to register four trademarks covering various iterations of the phrase “Crackberry.” Claiming their use was a parody of the ever popular Blackberry device, DPMG based their trademark registration on use of the Crackberry mark in connection with “Web-based marketing services, computer services, online chat rooms, and apparel.” All four of the Crackberry marks were published for opposition in late 2007.
Research in Motion (“RIM”), owner of the Blackberry trademark has been embroiled in patent litigation for most of the 21st century and apparently has not had its fill of intellectual property-related litigation. Not long after DPMG’s applications were published, RIM initiated opposition proceedings challenging all four of the Crackberry marks. DPMG defended its applications by asserting that Crackberry was a parody of the Blackberry name, and as such would not cause confusion among consumers. RIM disagreed, claiming that use of the Crackberry marks was likely to cause confusion and ultimately would cause dilution of the Blackberry trademark.
Until February 27, 2012, we waited anxiously (more than likely glued to our very addictive Blackberries) for a decision regarding the viability of DPMG’s Crackberry trademark applications. Finally, the Trademark Trial and Appeal Board (“TTAB”) ruled that because RIM’s Blackberry trademark was famous, and because the respective goods and services were similar, consumers for RIM’s Blackberry-branded devices and DPMG’s Crackberry-branded products were likely to be confused by the two similar names. The TTAB commented that its findings were further supported by the fact that the expression Crackberry was in wide use prior to DPMG’s adoption of that term in connection with its services.
Although successful, RIM’s multi-year opposition efforts to stop the Crackberry menace may prove to be pointless. RIM saw a 45% decline in sales last quarter as its Blackberry products continued to lose market share to iPhone and Android-based devices. Perhaps the stronger innovative efforts by Apple and Google will prove to be the ultimate cure for Blackberry addiction.