“Podcast” is Generic

I’m don’t often make legal predictions, but I’m going to go out on this nice sturdy limb here and predict that Apple’s attempt to assert trademark rights in the word “podcast” will fail. There are multiple grounds why it should fail (the term is in no way dilutive of “iPod” for one), but if I were a judge I would be very receptive to the suggestion that the term is now generic and thus part of the public domain.

Podcasting is the method of distributing multimedia files, such as audio or video programs, over the Internet using syndication feeds, for playback on mobile devices and personal computers. The term gained wide popularity as a portmanteau of iPod and broadcasting, but was seen before that as an acronym for “portable on demand”.

The term podcast, like ‘radio’, can mean both the content and the method of delivery. The host or author of a podcast is often called a podcaster. Though podcasters’ web sites may also offer direct download or streaming of their content, a podcast is distinguished from other formats by its ability to be downloaded automatically using software capable of reading feeds like RSS or Atom.

Incidentally, a quick search at the USPTO finds 20 filings with the word ‘podcast’ in them…but only two for the word alone. One, dated Feb. 10, 2005, is for “online prerecorded radio or other recorded program over the Internet for purposes of allowing users to download, in electronic audio or video files, information regarding entertainment and educational to MP3s or other portable audio and video players.” The other, for “SOUND RECORDING FEATURING AUDIO INFORMATION FOR DOWNLOAD-SPOKEN WORD AND MUSIC” claims a first use in commerce of only Feb. 2006. Neither is from Apple.