In December 2008, I paid for a one-year developer agreement with Apple. In February 2009, I released version 1.0 of my app (call it "App Name"). I made a few updates to it that same year. In December 2009, my developer agreement expired and I did not renew. My app went into the Suspended state and was no longer searchable on the App Store. I left the app in the app repository with the full intention of renewing my agreement sometime in the near future.
In August 2011, another company recorded a standard character service mark as "App Name". In November 2011, they released version 1.0 of “App Name ™” (notice the trademark character in the app name). They have since made numerous updates.
In February 2012, I paid for a one-year developer agreement renewal with Apple. I searched for “App Name” in the app store and noticed the other app. In July 2012, I contacted Apple regarding the potential rights infringement. They want me to provide, under penalty of perjury, that I am or that I represent the authorized rights holder of the rights infringed by the app and they will forward my request on to the offending developer.
At this time, I did some research about trademark law. I believe I have a case, but I would like to know what others think. Do you think I have a case against the developer of the other app for using the exact same name as my app? Please note that my app is a game and theirs is a social networking service.
Side note: recently, Apple changed their search algorithm in such a way that if a user searches for “App Name”, the other application is displayed first, and my application is not displayed at all.
Assumptions: I believe Apple does not allow two apps to exist with the exact same spelling, but I have not been able to get them to confirm this yet. I believe that sometime before the other company recorded the trademark, they searched the App Store for “App Name”, and since it did not show any results (my app was suspended), they proceeded in good faith with recording the trademark and developing the application. When they were ready to submit their first version, they were not allowed to submit under the name “App Name”, so they named it “App Name ™”, likely as a way to assert their ownership of the trademark.
