Tuesday, January 29, 2013

Jailbreaking a Smartphone is Now Legal

I must confess, I have heard of "rooting" a phone, but never "jailbreaking" a smartphone.  Now, I have said I have heard of "rooting," I make no mention as to whether I understand what "rooting" a smartphone is or even how to "root." 

Nevertheless, the United States Copyright Office recently published its exemptions to the DMCA (an act performed every three years) which included a ruling that "jailbreaking" a smartphone does not violate the DMCA.  After doing some digging, I learned that "jailbreaking" a phone is to unlock it so that it may download material from any marketplace, not just the approved marketplace.  Apparently, iPhones are the ones unlocked more often than not--this explains my lack of knowledge, since I am a proud Android user.  Of course, downloading illegal content is a no-no.

Adding to my confusion, is the fact that the Copyright Office's exemption only applies to phones purchased within 90 days of publication of the exemption.  Huh????? Oh, and do not even think about jailbreaking your tablet, that is still not allowed.  Double-huh????  Well, all I can say is come back in about three years and we can figure out if the Copyright Office catches up with the current times. 

Saturday, January 26, 2013

Apple Just Can't Win for Losing

Once again, I find myself writing about Apple.  In this iteration, Apple sued Amazon.com, Inc. for false advertising and trademark infringement with respect to Amazon's "Appstore."  As you may expect, Apple claims that Amazon's "Appstore" infringes upon its "App Store" trademark. A judge recently determined that Amazon's "Appstore" does not constitute false advertising. 

The two companies remain locked in litigation over the trademark claims.  Interestingly, when battling Microsoft in earlier litigation over the "App Store" name, Apple and Microsoft hired linguist experts.  Unsurprisingly, Apple's linguist opined that the words were a proper noun and Microsoft's linguist claimed that the term was "generic" and/or descriptive of the product.  If true that the term is "generic," then it is not a trademark.  If descriptive, then Apple would have to provide additional proof that the term signifies that Apple is the source of the online store in the mind of a consumer. 

Apparently, Apple applied for registration of the mark in 2008 and it published for opposition in 2010 (which indicates that there were several office actions that Apple had to overcome).  Microsoft opposed the registration which resulted in the initiation of litigation to determine whether the term "App Store" may be a proper trademark.  Apple's registration is on hold pending the outcome of the litigation between Microsoft and Apple.    

Getting back to Apple vs. Amazon, the United States District Court, in ruling in favor of Amazon, did not find any evidence that a consumer accessing the Amazon "Appstore" would be confused by or expect it to be identical to Apple's "App Store."  Indeed, Amazon's store sells apps for Android phones/devices while Apple's sells apps for its iPhones and iPads. 

What I find interesting is that there was no ruling on the trademark aspect of the case.  Usually, courts do not give consumers enough credit and often determine that such consumers are easily confused.  However, it appears to me that with the advent of smartphones and tablets, the common usage of internet search engines, etc., consumers are actually not so easily duped.  Despite what the linguists say, I would be surprised if a significant number of consumers would believe Amazon's store to be the same as Apple's.  Hopefully, the courts will begin to give us consumers a little more credit.

Tuesday, January 8, 2013

Clearly Canadian is Making a Comeback

Old brand names do not die, they sometimes get revived.  I am going to be dating myself, but I remember when I was in college and a new type of sparkling water hit the markets.  It was Clearly Canadian and came in cool sounding flavors like "Orchard Peach" and "Western Loganberry."  Even the soft blue bottle was pleasing: 

Unfortunately for Clearly Canadian, it disappeared among the barrage of flavored water drinks sometime in the early 2000s.  An investor is going to retread the brand.  Apparently, there is a group of entrepreneurs who dig up old brands, purchase the name, and then attempt to cash in on the brands.  Apparently, these entrepreneurs hope to cash in on the growing nostalgia from us older folk longing for the items of our youth.  Instead of creating a brand from scratch these guys pay a small fee to the United States Patent and Trademark Office and shake the rust off of these brands which are already familiar to millions of potential customers. 

Of course, this strategy is not without risk.  Oftentimes the prior owner of the trademark may not want someone else to use the mark.  Thus, if you think you may want to relive a part of your youth by bringing a brand back to life, it would be good to research the brand's prior owner, and possibly, negotiate with the owner to avoid a costly lawsuit. 

In addition, it is not enough to sell to those of us who may remember Clearly Canadian fondly.  A "trademark rebooter" will also need to bring the product and the brand into the here and now by making it palatable to today's consumers.