–Dan Kelly, Attorney

Here is a brand baiting gem spotted yesterday at a website called Daily Checkout:

Unremarkable?  A deal, you say?  Well, the following disclaimer appears twice in the sidebar adjacent to this deal:

And here is another feature pulled from the sidebar:

Greeaat . . . an MP3 player that won’t work with iTunes.  Seriously?

In [weak] defense of Daily Checkout and/or its source for this product, Apple does not appear to have registered trademark rights in the U.S. for SHUFFLE, standing alone.  That aside, Apple does own a U.S. trademark registration for IPOD SHUFFLE for use in connection with “Portable and handheld digital electronic devices for recording, organizing, transmitting, manipulating, and reviewing text, data, and audio files,” and these products look exactly like Apple’s iPod shuffle products, potentially implicating product configuration trade dress rights.

In my assessment, the fact that Apple does not have a registration for SHUFFLE by itself is probably not a strong defense (presuming wrongdoing–see below).  There is an argument to be made that “shuffle” is merely descriptive for use in connection with digital media players, but it is not a strong argument, especially when Internet search engines return Apple’s iPod shuffle landing page as the first organic hit in searches for “shuffle” by itself.  Further, arguing that “shuffle” is a generic term for a digital media player is even weaker–at least it is not a definition listed in this online dictionary.

I can think of only two possibilities here.  These are either blatant knock-offs, or these are some sort of consignment, reject, overstock, etc. of genuine iPod shuffles, and in exchange for being able to sell them at a discount, the seller was required to disclaim that they were made, sponsored, or endorsed by Apple.  If the latter, one wonders whether any contract governing the deal covered all of the appropriate trademark bases.

H/T to Randall Hull at The Br@nd Ranch.