MICROWARE SYSTEMS CORPORATION v. APPLE COMPUTER INC (2001)

United States Court of Appeals,Eighth Circuit.

MICROWARE SYSTEMS CORPORATION, an Iowa corporation, Plaintiff-Appellant, v. APPLE COMPUTER, INC., a California corporation, Defendant-Appellee.

No. 00-2006SI.

Decided: January 16, 2001

Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.

Deborah M. Tharnish, argued, Des Moines, IA (David A. Tank, Kent A. Herink,Daniel A. Rosenberg, on the brief), for appellant. George A. Riley, argued, San Francisco, CA (Edmund J. Sease, Des Moines, IA, on the brief), for appellee.

The plaintiff, Microware Systems Corporation, owns a registered trademark, “OS-9,” on its software products, which are real-time operating systems. The defendant, Apple Computer, Inc., calls the current generation of its personal computer “MAC OS 9.” Microware brought this suit for trademark infringement. The District Court ¹ denied Microware's motion for a preliminary injunction and granted Apple's motion for summary judgment, holding as a matter of law that Apple had established the defense of fair use.

We affirm. The evidence of confusion was minimal. Microware and Apple sold, for the most part, to entirely different markets. Microware does not claim it lost any sales. “MAC OS 9” accurately describes, in a fashion customary in the industry, the current version of Apple's product. For the rest, we refer the reader to the able district judge's full opinion, with which we agree in substance.

Affirmed.

FOOTNOTES

1. The Hon. Robert W. Pratt, United States District Judge for the Southern District of Iowa.

PER CURIAM.

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