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  • Writer's pictureCassandra L. Wilkinson

The Android Powered iPhone?

That is correct, there is an Android powered phone called the iphone that is for sale in Brazil. The formal name of the device is the Gradiente iphone Neo One and Apple cannot do anything about it at the moment.
You may be asking yourself how such a world renowned brand is facing these kinds of issues. Well, the short answer is that U.S. and Brazilian trademark law differ quite significantly. In Brazil, a trademark’s first registrant has full trademark protection rights, whereas in the United States the first to prove usage of the trademark holds rights.
Gradiente applied for the iphone trademark in 2000 and registration was granted to them in 2008. In Brazil, once a registration is granted, the registrant has five years to prove usage; otherwise, the trademark is cancelled.
Brazilian regulators have ruled that Apple does not have exclusive trademark rights to “iPhone” in Brazil. The verdict does not forbid Apple’s use of the name in Brazil, but it does not give them the ability to make Gradiente stop selling their iphones.
Apple has since appealed the ruling by the Brazilian Patent and Trademark Office. Apple’s grounds for appeal are based on the fact that Gradiente must have made use of the trademark between January 2008 and January 2013, since trademarks in Brazil must be developed within five years of approval. Gradiente released their product in December 2012, which is within the guidelines. In order for Gradiente to keep their trademark rights, they must respond to the appeal with their first use dates within 60 days of the appeal. Even though the dates are within the deadline, this probably will not be the end of the battle.
Recently we have seen Apple struggle with the same trademarking issues with the iPad trademark in China, which was previously owned by Proview Technology Shenzhen Co. Ltd. The outcome of this case was Apple paying the bankrupt company $60 million. A high settlement could be what Gradiente wants, but at the moment there will be an Android powered iphone for sale in Brazil.
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