SkyDrive is, of course, Microsoft's cloud storage service used on the mobile side by smartphone users on all four major platforms: Android, iOS, Windows Phone and Symbian. Although I can't imagine confusing Sky the satellite TV and ISP company with Microsoft's SkyDrive Internet file store, it seems that some less tech-savvy users have difficulties.
From the case documents:
- ...He submits therefore, that the descriptive/allusive nature of the Sky mark in the sphere of cloud storage detracts from Sky's ability to denote the company, Sky. The likelihood of confusion and the ability to sustain detriment are correspondingly reduced. He goes as far as saying that the distraction caused to the average consumer in the field of cloud storage is such that Sky is not able to denote any particular undertaking offering such services....
- ...In fact, in this case, there were seventeen recorded incidents of Sky customers who rang Sky Customer Services because they were sufficiently confused when seeing the SkyDrive sign that they assumed that it was a service offered by Sky and rang the helpline to resolve their difficulty with the product. In addition to their witness statements, transcripts of their calls to the helpline were in evidence. Some of them were recipients seeking to access documents or photographs and in some cases they were the immediate user who was attempting to share the document or photograph.
- Two examples of this evidence are the witness statement of Mr Long and Mrs Cushing. Mr Long a Sky customer who is registered blind uses software to read aloud the information displayed in his laptop and iPhone. On 20 March 2012 he was sent an email with attachments. When he clicked on them he was automatically redirected to a link which suggested that he download the SkyDrive application. He did so and when prompted to enter his username and ID, attempted to use his Sky ID. Despite the fact that the link mentioned Microsoft, he thought it was a Sky service. When his details were not accepted he rang Sky customer services. When he was informed that SkyDrive was a Microsoft product he commented to the call agent that it was totally misleading to call the product SkyDrive and that he had assumed that it was a Sky product because of its name.
- Mrs Cushing was a user rather than a recipient. She was attempting to attach a curriculum vitae to an email using her Hotmail account, at a time when Microsoft was automatically requiring the use of SkyDrive for attachment of Office documents sent through Hotmail. She stated that she was totally confused by the appearance of the reference to SkyDrive having no recollection of having signed up for the service. She was also a Sky customer and assumed that she had been signed up by Sky without her permission. She rang Sky in order to ask how to remove SkyDrive from her computer and was amazed to discover that it was not provided by Sky at all.
- Ms Baxter and Mr MacLennan also visited Sky call centres and asked 59 "Customer Experience Leaders" who are duty managers responsible for overseeing typically around 8 -12 call agents, to ask whether they had heard of SkyDrive. The upshot was that 27 call agents responded positively. Of them, ten thought that SkyDrive was associated with Sky. Two of them recalled taking a call from a customer in relation to SkyDrive. They were not amongst those which had been thrown up by the Chordiant research....
The Register comments:
British judge Sarah Asplin, sitting in the chancery division of Blighty's High Court, ruled that the evidence in the case "revealed confusion amongst real people" about the SkyDrive service, including members of the public calling Sky's helpline about difficulties they were having with Microsoft's product.
Redmond tried to argue that the term "sky" was descriptive in that it related to clouds and therefore to cloud storage, but the results of a survey conducted in 2010 only had 20 per cent of responses that could be "characterised as containing a recognition of some kind of allusion to cloud storage", despite the fact that the first question in the study linked the term SkyDrive to the relevant services.
"Putting aside the doubts as to the probative value of the survey in the first place and the suggestive nature of the first question, I consider such a level of response to be insufficient," the judge said in her ruling.
Mrs Justice Asplin found that Microsoft infringed on the "Sky" trademark, but has yet to decide whether the remedy will be a fine for the firm or a change to the name of its cloud storage service, or both.
As usual with these legal cases, this could run and run.... Possible suggestions for a name for a rebranded SkyDrive welcomed!