A small New York publisher that uses the label “ibooks” has struck out in its lawsuit against Apple,(s AAPL) after a New York court on Wednesday held that the publisher’s mark was not distinct and that consumers would not confuse the two companies’ products.

The case began in 2011 after Black Tower Press, a publisher of sci-fi and fantasy titles, filed a trademark suit in response to Apple’s announcement that it would use the word “iBooks” to describe software that allows users to purchase online books. Here’s a look at the two marks:

Black Tower came into possession of the “ibooks” mark in 2006 by purchasing the assets of another publishing company that had used the word for an imprint that sold millions of sci-fi and horror books in the early 2000’s. Neither Black Tower nor its predecessor, however, obtained a registered trademark for the word.

Apple, on the other hand…