26 October 2012

The Apple of Temptation


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Image: apple bite by owaief89 on Flickr
apple bite

The popular Christian tradition holds that the serpent tempted Adam and Eve to eat an apple from the forbidden tree in the Garden of Eden and as a result the first human beings got expelled from there.

According to Wikipedia,

temptation is

the desire to perform an action that one may enjoy immediately or in the short term but will probably later regret for various reasons: legal, social, psychological (including feeling guilt), health-related, economic, etc.

Having read today’s Forbes’ article What Apple Gets Wrong In Its Samsung Apology, I could think of nothing, but temptation.

The thing is that Apple had claimed that the design of Samsung’s Galaxy Tab infringed upon Apple’s design in the iPad.

For that, the Cupertino company went before the English High Court, but suffered a defeat. It then made another attempt – this time before the Court of Appeal – however, only to reap another judicial loss.

Owing to these unfortunate circumstances,

Apple were ordered to post a statement

on their website to inform the public that Samsung’s design had in fact not infringed upon the design incorporated in the iPad.

The text they had to use read as follows:

“On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronic (UK) Limited’s Galaxy Tablet Computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design No. 0000181607-0001. A copy of the full judgment of the High court is available on the following link [link given].
That Judgment has effect throughout the European Union and was upheld by the Court of Appeal on ….. A copy of the Court of Appeal’s judgment is available on the following link […]. There is no injunction in respect of the registered design in force anywhere in Europe.”

Instead, their version is reading as follows:
(click-in to enlarge)

While this is, strictly speaking, not exactly what their Lordships did prescribe, it is likewise not untrue.

The problem with this statement, however, is

that its authors have drafted it in a manner that tempts the readers to side with Apple, rather than to provide them with the information on the lawsuit’s outcome.

This is duplicity, which Apple (like the biblical serpent) might at a later stage bitterly regret.

8 December 2011

Apple’s iPad Trade Mark Bumped In China


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Image: Logo de l’iPad by Rob Janoff via Wikimedia Commons
Apple ipad

As FT.com reports, a recent Chinese court ruling prevents Apple from using “its” iPad trade mark in China.

The reason therefor

seems to lie in a dispute between Apple and the Taiwanese company Proview Electronics.
Funnily, Proview is no stranger to Apple.

Somewhere between 2000 and 2004 the Taiwanese company had registered the trade mark iPad in the EU, China, Mexico, South Korea, Singapore, Indonesia, Thailand and Vietnam, but in 2006

decided  to assign

it to Apple by concluding a global agreement.

When Apple started to sell its iPad devices in mainland China, they did surprisingly encounter trade mark infringement proceedings brought by Proview Technology, the Chinese affiliate of Proview Electronics. The litigation value is said to amount to 1,6 billion USD, which is absolutely ridiculous if you bear in mind that the 2006 trade mark purchase counted some

shabby 55.000 USD

Some other reports derive Proview Technology’s combativeness from that fact that it has been insolvent for some time. The Chinese branch could thus have spotted an opportunity to cash in on Apple.

It is not Apple’s first dispute over the iPad trade mark.
The Cupertino company has so far been successful in regulating the cases arising from purported infringements and I have no doubts as to how they will end up with this particular situation.

4 October 2011

HTC Joins Apple On The Road To Perdition


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Image: 800px-HTC_Evo_4G by Anya1986 on Flickr
800px-HTC_Evo_4G

Do you remember Apple’s disrespect of their customers’ privacy?

It now turns out that the Taiwanese

HTC ain’t any better

in that respect.

Privacy International, whom I follow on Google Reader issued an article citing a very detailed report prepared by Artem Russakovski, Justin Case and Trevor Eckhart and made available on the Android Police website.

It turns out that HTC, in the absence of any corresponding consent, collect the personal data of their users and share that data with third parties.

Assuming that HTC have deployed the same business model also within the European Union, they have committed some

serious breaches

under the applicable data protection and privacy legislation here.

First, HTC should be aware of the fact that by processing personal data they act as a data controller and are therefore under the obligation to process the data fairly and lawfully and only for an explicit and legitimate purpose.

Second, when processing personal data, HTC must ensure that the buyers and users of their mobile devices, i.e. the data subjects have served HTC with an

explicit consent

to that data processing.

Not that HTC fail to obtain that explicit consent, they moreover mislead their users!

It is said to work like that: HTC ostensibly offer their users the option not to allow the collection and use of personal information, but even if the users select that option, HTC collects and processes the data anyway.

And third, by so doing, HTC have failed to prevent an

unwarranted intrusion

into the private sphere of their users.

I think that HTC, being a major competitor to Apple, should offer its customers a set of good privacy options, in order to create an advantage over the Cupertino company.

Instead, HTC seems to have opted to spy on and fool their customers thereby joining Apple on the road to perdition…

How about you?

Would you prefer one mobile device manufacturer over another, if it offers you a better privacy protection?

13 June 2011

Apples Growing Clouds


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Image by Sean MacEntee on Flickr

5806315596_349d8ef626_z

Apple officially launched its much-hyped iCloud suite of services, applied for the registration of the trademark “iCloud” and entered the hostile territory of trade mark infringement: the Arizona based iCloud Communications LLC brought legal proceedings against Apple Inc before the Federal District Court for the District of Arizona.

Does it sound familiar? I personally felt reminded of Apple’s dispute with Fujitsu over the iPad trade mark. Indeed, the current situation is similar to the iPad case, but nevertheless distinctive in some important instances.

When I first read about the lawsuit I navigated to the US Patent and Trademark Office’ website and performed a search thereby processing the sign “iCloud”.
And you know what?
Apart from Apple’s numerous applications, there is only one US registered trade mark consisting of the iCloud sign and it is owned by the Swedish company Xcerion AB. The same is true also with respect to the Community Trade Mark  iCloud. Xcerion has registered both, the US and the Community Trade Mark for classes 9 and 42.

What follows is that iCloud Communications’ mark

Is Not A Registered One

Should they then qualify to claim infringement at all?

Yes, however not on the ground of registered trade mark infringement, but on unfair competition and false designation.
Indeed, iCloud Communications’ complaint relies on § 1125 (a) of the Lanham Act as well as on Arizona state law.
Precisely, iCloud Communications claims that Apple infringes upon the iCloud trade mark of iCloud Communications, because

By virtue of iCloud Communications’ long and extensive use of the iCloud Marks, its advertising and promotional campaigns and expenditure of substantial monies thereon, iCloud Communications had, prior to June 6, 2011, established significant goodwill and valuable rights in and ownership to the iCloud Marks in connection with computer telephony and electronic data transmission and storage services.

and

The goods and services with which Apple intends to use the “iCloud” mark are identical to or closely related to the goods and services that have been offered by iCloud Communications under the iCloud Marks since its formation in 2005.

Reads pretty logical, does it not?
Well,

Besides One Thing

Apple’s attempt to register and use the iCloud mark is not the first one: iCloud Communications themselves mention the previous trade mark registration of Xcerion

whose use of the mark post-dates that of iCloud Communications by two years.

So, is there any reason why iCloud Communications omitted to sue Xcerion?

Hmm, from what I read on the Internet, some wagging tongues allege that Xcerion’s Pockets

Were Not Deep Enough

Hence, observing the development of the iPhone and iPad disputes, this one is also likely to end up in a settlement agreement.

In that event Apple will have to pay a (negligible) amount of money to operate a nursery in the clouds.

From a legal point of view, however, the matter involves the (alleged) infringement of an unregistered trade mark by a registration application.
This is not really common place and thus of a greater interest for me.
I will therefore stay focused on it.

Did I miss something? It is now you turn to add -)!

21 May 2011

Apple’s Appstore Or Tradmarking Descriptiveness


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Image by Rudi Riet on Flickr

365162021_7c71853ba9_z

Let me ask you a funny question: should a keeper of a greengrocer’s shop be granted the trade mark “greengrocery” for, say, class 31?

I can almost hear you shouting “No, for God’s sake, he should not!”

Well, I was joking, but why actually not? Is it because if the good greengrocer monopolised an everyday’s term for his trading purposes no other greengrocer would be able to run its shop?

Let me address this question in the story and consecutive analysis I am going to present below.

Believe it or not, but Apple managed to register the word marks

Appstore And App Store

with the Office For The Harmonization In The Internal Market (OHIM), which has authority to grant Community Trade Marks (CTM). Appstore bears the number 005554779 and is registered for classes 35 and 42. App Store bears the number 007078314 and is registered for classes 35, 37, 38 and 42.
If you like, you can conduct your own search using OHIM’s search application.

What both marks have in common is the fact that their registrations are pending cancellation.

Funnily, a broad front consisting of large technology companies such as Microsoft, HTC, Nokia and Sony Ericsson each filed formal applications for declaration of

Invalidity

of Apple’s two trade marks with OHIM.
The Intellectual Property Watch has the story and I strongly recommend you to read it.

Anyway, what could have been the reasoning of the tech companies, what could they have claimed? That is easy – what did we talk about at the beginning of this article, huh?
Yes, we talked about the monopolising of an everyday’s term. Everyday’s terms are generally considered descriptive for the purposes of trade mark law.
The CTM Regulation (207/2009) provides in its Article 7 (1) (c) that no registration shall be granted to

trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;

In other words, the tech giants have very likely claimed that the Apple’s trade marks are descriptive and therefore should have never been granted. Since OHIM granted them once to Apple, they should now be invalidated.

But wait a minute, what about

Baby-Dry

and what if Apple relied on it as authority?

Indeed, Baby-Dry was the high point of the European Court’s liberal attitude to registrability of descriptive marks. However, if I was to advise Apple in this instant case, I would not recommend them to rely on Baby-Dry.
Because in its later

Doublemint

judgment the Court realised that matters had gone too far in Baby-Dry and needed to be reined in.
In Doublemint the Court referred to the so called principle of availability, which says that there is a public interest that descriptive terms may be freely used by all traders.

Let me wrap it up: Appstore and App Store are (very likely) descriptive and OHIM might rule that they should be free for all.
By the way, have you read about Nokia’s plan to launch a co-branded App Store?

My Conclusion

We must not forget that trade marks provide their proprietor with a limited monopoly over the use of a sign in connection with the marketing of goods and/or services.
However and since Baby-Dry is no longer reliable authority, Apple’s adversaries have a strong case and good arguments to invalidate Apple’s registered trade marks.

Finally, you do not want Apple to trademark the descriptiveness, do you?

21 April 2011

Your iPhone Disrespects Your iPrivacy


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iPhone Desktopphoto © 2007 Terry Johnston | more info (via: Wylio)

No, doubt iPhone is a hip communication tool with a great design. Who would not like to have one?

But will you still want to have one if you knew that

iPhone Records Every Step You Make

Will you really? Hmm, well maybe not.

Guardian has the story and in the next few lines I will provide you with a very concise

Legal Analysis

What Apple’s iPhone seems to do is usually referred to as location data processing. In the European Union the latter is governed by Directive 2009/136/EC – the so called ePrivacy Directive.

Apple acts as a provider of a value added service in the sense of the ePrivacy Directive since it processes location data beyond what is necessary for the transmission of a communication or the billing thereof.
Apple is generally allowed to do so, however, under the condition that it fully informs its users of its data collection and processing

Prior To Obtaining Their Consent

From what I read, no users have been informed and their consent has not yet been obtained.
Besides the fact that it disrespects the privacy of its users, Apple is in a clear breach of applicable data protection and telecommunications legislation.

iPhone or iPrivacy, what will be your choice?

26 August 2010

With the rhythm of my heart


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labor - fetal monitoring: the left is the little guy's heartbeat, the right is the magnitude of his mom's contractionsphoto © 2011 george ruiz | more info (via: Wylio)

I have never doubted Apple’s inventive power. And how could I? After all I speak of the one that has made all the iDevices available to the public. The news on Apple’s recent patent filing, however, seem capable of throwing some doubts on that abovementioned inventiveness.

According to the EFF Apple prepares to take full control not only of their devices, but probably of their users. Things like voice recording, photographing or even detecting device’s user’s heartbeat definitely go too far.

In my view Apple’s patent application conflicts with morality considerations and the USPTO may have a strong case in demonstrating that the “moral utility theory” is not just a dead doctrine.

 

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29 January 2010

Whose iPad is it anyway?


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iPad Casephoto © 2010 Yutaka Tsutano | more info (via: Wylio)

You have certainly heard, seen or otherwise perceived (by the way who hasn’t?) that couple of days ago Apple presented its iPad to the public. However surprisingly, the fancy product name “iPad” that seems to perfectly fit into the iFamily of “iBook”, “iPod” and “iPhone”, could now enter the hostile territory of trade mark infringement.

It is funny, but the sign “iPad” has in recent years been really coveted by enterprises around the globe . So much, as some of these have undertaken trade mark registrations under different jurisdictions. For instance, the The Trade Marks and Designs Registration Office of the European Union  (OHIM) has granted the word mark “iPAD” for motors, engines and drives to Siemens and the word mark “IPAD” to the French Company STMICROELECTRONICS SA for, in particular, integrated circuits and termination lines that, however, may be also applied in cellular phones, computers and computer peripherals.

OHIM has further received an application for registration on 18 January 2010 and this is  filed by a US company named IP Application LLC. The application covers products and services classes such as computers, printed matter, toys, telecommunications and web services that just hardly fail to fit into Apple’s marketing target. It has been said in news reports that in 2009 Apple have used a proxy to file for a registration on Trinidad and Tobago in order to secure a priority date. This same Trinidadian registration is mentioned in IP Applications LLC’s application before OHIM. Any doubts why may be behind that act?

The above application, however, may cause some problems to its applicant. The Community Trade Mark Regulation states a so called relative ground for refusal where a trade mark applied for is identical with an earlier trade mark and the goods or services for which registration is sought are identical with the goods or services for which the earlier trade mark is protected. Consequently, STMICROELECTRONICS SA might successfully oppose Apple’s European registration.

As if that were not enough, the war clouds for Apple are gathering over another – much more promising – battlespace.

2002 Fujitsu came up with a handheld computer named “iPad” for use by shop assistants and has since then attempted to file for a trade mark registration with the US Patent and Trade Mark Office (USPTO).

Fujitsu iPad. Courtesy to TheRegister

Fujitsu’s application to register iPad name was deterred by an earlier filing by Magtek, an information technology security company based in Seal Beach, California, for a handheld number-encrypting device.

Magtek IPAD. Courtesy to Magtek.

The consequence was that the USPTO listed Fujitsu’s application as abandoned in the beginning of 2009, but the Tokyo company managed to revive its application in June 2009. In the autumn of the same year, Apple is believed to have filed requests of opposition before the USPTO and has now time until 28 February 2010 to submit its final opposition statement.

See whether the Canadian lingerie manufacturing company Coconut Grove, to which the USPTO assigned the trade mark “IPAD” for padded bras, will join the technology giants’ war game.

 

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24 September 2009

Eminem in a legal battle against Apple’s iTunes


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Eminemphoto © 2010 Courtney Bolton | more info (via: Wylio)

Associated Press informs in a very current report that a settlement attempt between Eight Mile Style LLC, being Eminem’s music publisher, and Apple Inc. has failed.

Eminem’s music publisher accuses Apple for making available 93 songs of Eminem on iTunes without having obtained relevant consent. Apple alleges it has a valid agreement with Aftermath Records, which controls the Eminem sound recordings at issue in the case.