Monday, September 24, 2012

The Apple Does Not Fall Far From the Tree

It is well known that Steve Jobs "borrowed" the Graphical User Interface ("GUI") for its Mac from Xerox.  Legend has it that he also "borrowed" the mouse from Xerox, too.  Apparently, Steve Jobs visited Xerox who was showing off their GUI, but decided not to exploit it. So, Steve Jobs exploited the idea and made Apple's Mac a household name.  Now, with the launch of the iPhone 5, it appears that Apple may have "borrowed" the clock of the Swiss rail company for its iPad/iPhone clock app.  Swiss Federal Railways licenses the clock design from watchmaker, Mondaine. 

Here is the iconic Swiss rail clock: 

Can you tell the time? Apple's iPad clock app (left) versus Mondaine's iconic clock face 

And, Apple's new clock app clock:

Apple vs Mondarin

Needless to say, the Swiss Federal Railways are suing Apple for trademark infringement.  Just another lawsuit to add to the litany of them involving Apple.  Seems a bit ironic that Apple owes much of its "innovation" to others, but seems hellbent on chasing Samsung all over the world with lawsuits.  Steve Jobs proclaimed that Google's Android was a "stolen product," meaning that he accused Google of stealing his smartphone. 

A purpose of intellectual property law is to foster innovation and creativity by allowing someone to take advantage of their innovation for a limited time.  Then, it falls into the  "public domain" so that others can use that innovation and improve upon it.  Sometimes it is just a fine line between stealing another's intellectual property and innovation. 

Tuesday, September 11, 2012

Ben & Jerry's Upset at Being "Ben & Jerry-ed"

Ben & Jerry's who names its ice cream flavors by playing off names and words recently filed a lawsuit against a pornography studio, Caballero Video ("Caballero") for titling its films by playing off the flavors of Ben & Jerry's ice creams.  For example, Caballero boasts titles such as "Boston Cream Thighs," "Peanut Butter D-Cups," and "Chocolate Fudge Babes."  Ben & Jerry's ice cream flavors include "Boston Cream Pies," "Peanut Butter Cups," and "Chocolate Fudge Brownie."  The lawsuit includes other aspects of Ben & Jerry's intellectual property, but what caught my interest was the suing Caballero for doing essentially what Ben & Jerry does in naming its flavors. My guess would be if it was not a pornography company doing the "Ben & Jerry-ing" Ben & Jerry's would not be as upset.

The Lanham Act provides additional protection for "famous" trademarks by way of dilution.  Dilution refers to the unauthorized acts that tend to blur or tarnish the famous trademark by using it in a disparaging or unsavory way.  As you may imagine, this cause of action often targets the pornography industry.  One of the elements of a dilution cause of action is that the use of the trademark by the defendant (Caballero) dilutes the quality of plaintiff's (Ben & Jerry's) trademark by diminishing the capacity of the plaintiff's mark to identify and distinguish plaintiff's goods and services.  For a refresher on trademark basics go here

Needless to say, Ben & Jerry's succeeded in obtaining an injunction to stop Caballero from selling its Ben & Jerry series of titles.  However, Ben & Jerry's will still need to prove that Caballero's titles "dilute" its trademarks.  Because Caballero "borrowed" other aspects of Ben & Jerry's labeling, it may have an easier time showing dilution.