Apple’s Use of ‘Face ID’ Could Result in a Lawsuit

Apple may be the first tech company to equip a smartphone with a facial recognition platform as advanced as “Face ID.” But the company is not the first to use the term “Face ID,” or even trademark it.

A small company called FingerTec has been using the name “Face ID” for a line of door access hardware with facial and fingerprint biometric security. It’s not clear how long the Malaysia-based company has been using the term, but the company itself has been around since at least 2005.

Whereas Touch ID is a registered trademark owned by Apple, the Cupertino tech giant doesn’t currently have a trademark on Face ID within the U.S. In the last couple weeks, Apple has filed a figurative trademark application with the European Union for the graphical representation of Face ID, according to Patently Apple.

But while FingerTec has been using the “Face ID” name for its products, the company does not have a trademark on the name within the U.S., either. But another company does.

According to U.S. Patent and Trademark Office records, there are three existing trademarks for the phrase “Face ID.” All three are currently owned by a company called TMT Technologies apparently based in Dover, Delaware. Specifically, one of those trademarks relates to “computer hardware and software for use in biometric authentication.” That trademark was filed in February 2017. TMT Technologies also has a trademark on Face ID relating to information technology consulting services.

Interestingly, the oldest trademark on Face ID seems to originate from a San Diego-based biometrics company called ImageWare Software, Inc., but is now owned by TMT Technologies as well. The trademark relates to facial recognition and retrieval software for “law enforcement applications.” Additionally, this is a registered trademark, unlike the others, and was first filed for in February 1998.

Of course, the real question is whether or not Apple can get sued over its use of the term Face ID. That’s a bit more complicated, and this is obviously not official legal advice, but we can go over the basics of trademark law.

A trademark, according to the USPTO, is a “word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods of one party from those of others.” Trademarks only protect commercial goods and services — a company can’t restrict people from saying “Face ID” in conversation unrelated to that company’s products, for example.

Similarly, a trademark generally protects goods and services against similar goods and services. Hypothetically, a cosmetics company that uses the term “Face ID” for a line of makeup, for example, would have a hard time suing Apple for its biometric authentication platform’s name. The cosmetics company would have to argue that consumers would be confused over Apple’s use of the term.

Additionally, a trademark protects the source of a product or service. In these cases, a trademark must either be inherently unique, or it must protect a product that is itself distinctive. A company suing Apple would have to prove in court that the general public identities or associates the term “Face ID” with their company and product, rather than Apple or its product, and that Apple’s use of the term would cause confusion.

That gets tricky since TMT Technologies, LLC is an obscure company. They don’t seem to have any forward-facing consumer products. Even the address listed on their trademark appears to belong to an company called NRAI Services, which is unrelated to the tech field. On the other hand, TMT Technologies’ trademark specifically relates to facial recognition software.

So even though Apple doesn’t currently hold a trademark for the term “Face ID,” it probably won’t get sued. Of course, the company is no stranger to lawsuits, and has arguably been sued on shakier grounds than this, so we’ll just have to wait and see.

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