Small firm in Landover sues Apple, CBS over 'Mighty Mouse' device

Clifton Broumand hopes a federal court will come to save the day for his 20-employee, Landover-based, specialty computer equipment company.

At stake is the future of Mighty Mouse: not the cartoon superhero who defeated villainous cats while wearing a red cape and yellow tights, but Broumand's computer-pointing device of the same moniker. Computer giant Apple Inc. also sells a computer mouse named Mighty Mouse, a term it licensed from CBS Corp.

That's one Mighty Mouse too many for Broumand. His company, Man & Machine Inc., is suing Apple and CBS in U.S. District Court in Greenbelt, claiming it developed and sold its waterproof "Mighty Mouse" more than a year before Apple began selling its device.

Man & Machine, whose mouse has been used by the U.S. military in Iraq and Afghanistan, wants a judge to enjoin Apple from using the mark.

The suit also seeks a declaration that the Apple-CBS licensing agreement is invalid and that Man & Machine's use of the mark does not dilute CBS' mark.

"You type in 'mighty mouse,' my name will not come up," Broumand said of an Internet search. "So therefore all the work that I've done to build up the name is really going for naught."

Made in Maryland

According to the suit, Man & Machine began developing its product in 2001 and started selling it in March 2004. Since Mighty Mouse's launch, Broumand said, his company has sold between 45,000 and 55,000 of the items, to customers from Finland to Australia.

Broumand said his customers include global consumer-goods company Sara Lee Corp. and managed care organization Kaiser Permanente.

Man & Machine has offices in New York, Holland and China, but its products are manufactured here in Maryland, Broumand said. President Bush visited the facility in July to discuss the difficulties small businesses face in offering health care to their employees. During the tour, he tested one of the company's keyboards that functions underwater.

The mouse sells for $80 on Man & Machine's Web site. Broumand, who founded the private company in 1982, declined to release recent revenue figures.

'Relatively small matter'

Apple began selling its own Mighty Mouse, which comes in a wireless model, in August 2005, according to the suit.

A call to a spokeswoman at Apple's Cupertino, Ca. headquarters was not returned. A CBS spokeswoman said the Manhattan-based company had not received the suit.

"[A]nd from all accounts this looks like a relatively small matter concerning the rights to use the name Mighty Mouse solely as it relates to a computer mouse," wrote Shannon Jacobs, the spokeswoman, in an e-mail.

That may be, but to Broumand, a self-described small-business owner, any disruption in customer relations could be disastrous.

"Apple's use of the trademark MIGHTY MOUSE for its computer mouse is likely to give consumers the misimpression that the larger, predatory junior user (Apple) is the source of the smaller senior user's (M&M's) goods," the suit states. "This 'reverse' confusion will directly and proximately cause M&M irreparable harm."

In addition to the lawsuit, Broumand is fighting CBS' application to trademark "Mighty Mouse" in connection with "computer cursor control devices, namely, computer mouse[s]." The company's subsidiary already owns the mark in connection with clothing and toys, but filed the computer-related application just last year.

In addition to opposing CBS' application, Man & Machine filed its own trademark application on Dec. 18, which is scheduled to be published for opposition on Tuesday.

After an application is filed, the U.S. Patent and Trademark Office reviews it, determines if the mark is available, and if so, publishes it, explained Max Oppenheimer, an associate professor at the University of Baltimore School of Law. After considering any objections, the USPTO either rejects the application or registers the federal trademark.

Scope of protection

Broumand acknowledged his company could face an expensive legal battle.

"That's certainly something that's been discussed in my company and something that's a concern to me," he said. "But does that mean somebody just walks away because you're afraid of somebody who has deeper pockets? I wouldn't be doing this if I didn't think we were in the right."

But he said he hopes a solution can come sooner rather than later.

"Nobody knows what's going to happen in court," Broumand said. "We're not looking to go to trial and spend a lot of money on both sides when it's not warranted. We just want to resolve it."

Oppenheimer, who teaches intellectual property, said an exception to the general rule that trademarks are only protected within a certain business sphere could mean Man & Machine's mark is also at risk.

"There's a rule for so-called famous marks ... that even though it's not something that's directly in your field, if the mark is sufficiently well known, it's entitled to a broader scope of protection," Oppenheimer explained. "Whether Mighty Mouse the cartoon character falls into that category, I don't know."

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