Do androids dream of trade mark law?

The launch of the highly-anticipated Google “Nexus One” phone based on the “android” platform has the blogosphere buzzing about more than the technology.  There is controversy over the name and who owns the intellectual property rights to “Nexus One”.  The estate of science fiction writer Philip K Dick claims that the name has been taken from his novel Do Androids Dream of Electric Sheep? later made into the movie Blade Runner.  The novel tells the story of a bounty hunter whose mission is to eliminate rogue “Nexus-6” series androids.

Isa Hackett, Dick’s daughter, and Electric Sheperd Productions, the company that manages adaptations of Dick’s work, have alleged that Google’s use of the term “Nexus One” is a violation of their trade mark and other associated intellectual property rights.

Google has denied the allegations, stating that they are using the common meaning of the words:  “Nexus” as a place where things converge and “One” denotes the first of a series of phones based on their android platform.  The “Nexus One” phone therefore symbolises the meeting of mobile and computing technology and has no relationship to the novel.  

Electric Sheperd Productions’ position is weakened by the fact that it has not registered “Nexus” as a trade mark.  Similar to Australian law, registration of a trade mark under the Lanham (Trademark) Act (15 U.S.C. 1051) in the USA entitles the owner to exclusive use of the mark in respect of the classes of goods and services for which it is registered.  This means that Dick’s estate will be forced to rely on other legal remedies to protect its intellectual property rights, such as the tort of passing off or unfair competition laws.

A similar issue arose when Verizon Wireless sought George Lucas’ permission to use the “DROID” trademark, in naming its Motorola Droid phone.  As “DROID” is registered trade mark owned by Lucasfilm Ltd, the parties struck a commercial licensing agreement for Verizon Wireless to use “DROID” for its Android phone.

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