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: 

 

And, Apple's new clock app clock:

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. 

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. 

SimsSocial v. The Ville

Electronic Arts, Inc. recently sued Zynga for copyright infringement alleging that Zynga copied the design choices, animations, visual arrangements, and character actions/movement from Electronic Arts's Sims Social game.  Sims Social released about ten months before Zynga's The Ville.  Apparently, Zynga is not new to such lawsuits.  There have been others involving Mafia Wars, CityVille, and FrontierVille.  Zynga settled all of these lawsuits.

As more and more of these types of games become prevalent and more and more uses find themselves absorbed in these games or other virtual worlds, there will be bigger competition to keep a user's attention.  Based on Facebook friends alone, the life cycle for users to play these games is about a year or so.  Which means that it is important to grab new players and keep their interest by coming out with new games or features.  For the unscrupulous, this would mean copying another's work rather than creating it independently.  By the time that a company created the new feature or game, the game may be passe.

I am not familiar with either Sims Social or The Ville, but I am sure that there will be updates on this case.  Stay tuned. 

Beastie Boys Rapper Says No to Turning His Music Into an Advertisement Jingle in His Will

I just read an article about the recently-deceased Adam Yauch's (of Beastie Boys fame) will which contains a provision prohibiting his songs from being used in an ad.  As I wrote earlier, branding is changing and companies are now trying to find new ways to get their brands before a consumer. So, it is no wonder that some artists are doing something similar with their art.  I have been guilty of looking up the name of a song I heard in a commercial, or recalling fondly a song from my youth playing in a commercial.  And, who could not appreciate this little gem from Honda, or this one?  And another favorite for mixing two different genres in a commercial. 

Yet, in some artists' minds (like Mr. Yauch) the use of one's song in a commercial cheapens the song.  I guess this is the other side of the coin that we see with fan fiction where a fan creates fiction based on another author's characters.  As I wrote earlier here and here, some artists embrace these fans' work thinking that it enhances their work (and, presumably, creates additional interest in the original work).  Other artists try to shut down these fan sites seeing it as an infringement on their intellectual property and ripping them off.  Now, as we see from the Adam Yauch article and the commercials linked above, there are two schools of thought with regard to the use of music in an advertisement.  Some artists despise it and will not allow their work to be featured in an ad, while others appear to embrace it. 

In my personal experience, I have searched for and purchased songs that I have heard on a commercial on several occasions.  Or, I have dusted off my old albums and put them in my Playlist de Jour because I heard a snippet of a song in a commercial.  What do you think?

A Cease and Desist Letter Written With Honey, Not Vinegar

Over the course of my practice, I have often had clients come to me after receiving a cease and desist letter.  Usually, the cease and desist letter, written by an attorney trained by or from one of the "Big Firms," promises hellfire and damnation to my client unless it immediately acquiesces to their client's laundry list of demands.  The demands are lengthy, and often include requiring my clients their first and second born.  I am not a big fan of these types of letters, in firing off cease and desist letters indiscriminately, or such intellectual policing tactics.  Unfortunately, sometimes such tactics are necessary when the other side is simply unreasonable and uncooperative.

As I often counsel my clients when they want me to send a cease and desist for them, it is usually better to try the nice approach first rather than immediately going for the mean approach.  In fact, I often try to get the client to agree to ending the cease and desist letter with an offer to have a dialogue about the issues raised in the letter in the hopes of avoiding having to litigate.  Other times, I try to get the client to think of ways to turn the issue into a "win-win," for my client and the other party. For many small business (and some medium businesses), litigation is bad business--well, except for us litigation attorneys who usually will get paid regardless of result. 

So, when I ran across this article about the attorney for Jack Daniels sending a cease and desist letter to author Patrick Wensick over his book cover art, I was impressed.  I disagree with the article saying that such a letter is "unlawyerly," since the letter gets across the conundrum that every intellectual property owner faces:  if you do not protect it, you can lose it.  Apparently, Mr. Wensick was impressed with the letter because he posted it on his website.  I am sure that Jack Daniels did not expect, but does welcome the free good publicity.  Moreover, as an intellectual property owner himself, Mr. Wensick clearly understands the issues and does not need a nasty letter telling him that he going straight to hell for infringing on Jack Daniels' label design.

Three cheers to Jack Daniels' attorney and a big thank you for reminding us that sometimes you can catch more bees with honey than with vinegar! 

 

Apple v. Samsung Over Galaxy and a Schizophrenic UK Court Ruling

 In another chapter of the international legal saga between Apple and Samsung over their intellectual property relating to their tablets (iPad and Galaxy), a UK court made an interesting ruling.  While the UK judge found that there was no infringement by Samsung of Apple's design rights, he also will allow Apple to opine that Samsung infringed its design rights.  What? Yes, you read that correctly, but wait, it gets better.  The same judge ordered Apple to pay for ads in various UK media and on Apple's website to correct the impression that Samsung violated Apple's design rights in the iPad.

From what I understand of this ruling, it is about as schizophrenic as any ruling I have ever seen.  On the one hand, the court finds that there is no infringement of Apple's design, requires Apple to place ads stating that Samsung's Galaxy tablets do not copy Apple's iPad design, but allows Apple to claim, as an opinion, that Samsung infringed the design of the iPad.  Of course, Apple states that it plans to appeal this ruling.  It will be interesting to see if the ruling withstands the appeal.

Settling with Proview Bought Apple Two New Lawsuits in China

Well, after settling with Proview for its iPad name, Apple appears to have bought two more lawsuits over its intellectual property in China.  Thursday, a company named Zhi Zhen Internet Technology sued Apple over Siri.  Zhi Zhen alleges that Siri infringes its voice assistant service patents named Ziao i Robot. According to reports, Zhi Zhen applied for its patent in 2004.  Apple recently announced adding Mandarin and Cantonese versions of Siri which undoubtedly is what caught Zhi Zhen's attention.  Of course, the recent $ 60 million settlement with Proview must have caught Zhi Zhen's eye, as well. 

Jiangsu Xuebao is also suing Apple for allegedly infringing its Snow Leopard trademark. Apparently, Jiangsu registered the Chinese equivalent of Snow Leopard in 2000.  In 2008, Apple tried to register that same word, but the Chinese trademark authority refused to register that name.  Presumably, the denial of registration stemmed from Jiangsu's prior registration.  Jiangsu seeks $ 80,000 and an apology.  The timing of this lawsuit is curious, indeed.

It seems as if Apple is caught in the Chinese conundrum.  It is a huge potential market.  It also is ambivalent to intellectual property protection.  I am sure there will be more to these stories.