Tag Archives: Apple

Another Costly International Trademark Battle for Apple.

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After fighting to secure its iPad trademark in China, Apple appears poised to engage in another costly trademark battle overseas. Brazil’s copyright authority recently ruled that the iPhone trademark rights belong to a local company, Gradiente Eletronica SA.

As with many international trademark systems, Brazil awards trademark registration to the first party to file, without taking into account who used the trademark first, or which party is more closely associated with the brand. In this case, Gradiente first applied for a trademark in 2000, six years prior to Apple’s subsequent trademark application and launch of the popular iPhone product.

Gradient was awarded the iPhone trademark in January 2008, according to The Wall Street Journal. Under Brazil’s trademark law, in order to gain exclusive rights, it was required to sell a product making use of the mark within five years.

Gradiente iPhone

In December 2012, the company announced an Android-based smartphone called the “IPHONE Neo One.”

According to Brazil’s National Institute of Industrial Property (INPI), Apple is now contesting whether Gradient used the brand within the required time frame.

However, in February, the INPI ruled against Apple.  Accordingly, Apple filed suit and is also trying to work out a financial settlement (reports indicate that the two entities are close to a settlement). Either way, it appears that Apple has another costly legal battle on its hands.

How Can I Help?

It can be more difficult to protect trademarks and other IP rights overseas. Therefore, it is imperative to consult with an attorney experienced in foreign intellectual property concerns.

I have developed long-standing, close relationships with firms and experts worldwide to enable me to offer my clients in-depth experience in foreign law.

If you, or someone you know, need help with any Intellectual Property issue, foreign or domestic, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Apple Registers Trademark for Its Distinctive Store Design

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Apple fiercely guards its intellectually property, like all trademark owners should.  So it isn’t surprising that the company recently obtained a trademark registration for the design of its retail stores.

According to the trademark description, Apple seeks to protects its minimalist design and layout, which includes “a clear glass storefront surrounded by a paneled facade” and, within the store, an “oblong table with stools…set below video screens flush mounted on the back wall.”

While the Apple trademark made headlines, this type of trademark right—known as trade dress—is not unusual. It generally covers the design and shape of the materials in which a product is packaged.  Examples include the layout of a magazine cover and the distinctive shape of a bottle. In 1992, the U.S. Supreme Court allowed a fast-food chain to protect the appearance and décor in its Mexican restaurants.

As with other trademark registrations, trade dress applicants must be able to show not only that the design is distinctive, but also that the average consumer would likely confuse its products with others of similar appearance.

Apple has good reason to want to protect the design of its retail outlets. Locations in the U.S. generated an average of $43.3 million in FY2011. In addition, while the most recent registration only applies in the U.S., counterfeit stores have popped up overseas. As Reuters reports, a counterfeit store that opened in China looked so authentic that employees thought that they were working for Apple.

How Can I Help?

Consistently using a distinctive “look” for your company can be extremely valuable and certainly worthy of protection. For more information about trade dress rights, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Mid-Year Recap of the Top IP Cases to Watch for 2013

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Overall, 2013 is shaping up to be a big year in intellectual property law. There are several key cases to watch in the areas of trademark, copyright, and patent law.

Association for Molecular Pathology v. Myriad Genetics, Inc.: The U.S. Supreme Court has agreed to delve back into the scope of patentable subject matter, as it applies to medical genetics. The primary question before the Supreme Court is whether isolated genes are “products of nature” that are ineligible for patent protection or products of human intervention and ingenuity.

The result is: genes are a product of nature and cannot be patented.

Kirtsaeng v. John Wiley & Sons: This copyright infringement case was argued before the U.S. Supreme Court in 2012, but a decision will be issued in 2013. The lawsuit addresses the tension between the first-sale doctrine and the Copyright Act’s ban against importing a work without the authority of the copyright owner. While the case involves foreign textbooks made and legally acquired abroad and then imported into the United States, the Supreme Court’s decision is expected to impact the larger, million-dollar “gray market” for goods, upon which companies like Costco and eBay rely.

The result: in a 6-3 decision, the Court held that the first-sale doctrine applies to copies of copyrighted works lawfully made abroad.

American Broadcasting Cos. v. Aereo: New technology will continue to test the limits of the Copyright Act in 2013. The Second Circuit is poised to decide whether start-up company, Aereo, has infringed the copyrights of networks, including ABC and Fox Television, by taking broadcast television signals and retransmitting them over the Internet to its subscribers. Because the decision could shake up how consumers get their television, the media and technology industries are closely watching the case.

Currently:  Aereo 2, ABC 0, waiting for the Court to decide.

Apple v. Samsung: The ongoing litigation between Apple and Samsung is just one example of the so-called “software patent wars” that dominated 2012. With lawsuits still pending in California and across the globe, the two tech giants will likely continue to dominate legal headlines.

Currently: Bickering back and forth enough to annoy the judge in the case.  Likely not to go to trial this year.  Samsung has asked for a new trial due to problems with the original trial which could make cell phones obsolete before these two get a verdict.

In addition to these cases, there are a number of regulatory changes in the works, most notably the official conversion to a first-to-file patent system under the America Invents Act.

How Can I Help?

If you, or someone you know, need help with any Intellectual Property issue, from filing a patent, trademark or copyright, or just advice regarding how best to protect your ideas and your brand, contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Round corners.

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In the seemingly never ending litigation between Apple and Samsung, I get a lot of questions about the $1.5B award in the only win Apple has had during all these legal battles.

Apple Inc. was granted a design patent for the rounded corners of its iPad tablet device, Patent D670,286 for “The Ornamental Design For A Portable Display Device.” However, from the drawings submitted in connection with the patent application, it is fairly clear that the patent is intended to cover the rounded rectangular shape of the tablet’s face.

Although it may seem strange to patent the corner shape of an electronic device, U.S. patent law provides for granting design patents to any person who has invented any new, original and ornamental design for an article of manufacture. The subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.

Unlike traditional patents, design patents only protect the appearance (ornamentality) of the article and not structural or utilitarian features.  In this case, Apple was granted protection for the rounded corners of the iPad which have no effect on how the device functions.

Although the design patent is yet another weapon in Apple’s fight against rival tablets, it is important to highlight that the patent only protects Apple from those who may try to mimic the look of the iPad and not its functionality.

How Can I Help?

As you can see, the way something looks can be as protectable as how it functions.  If you have a design you would like to patent, or you know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Apple v. Samsung: Redux for Juror Misconduct?

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The ongoing intellectual property litigation between Apple and Samsung continues to make headlines months after the blockbuster verdict was announced.  Samsung is seeking a new trial on the basis of juror misconduct.

Samsung alleges that the foreman of the jury that awarded Apple $1.05 billion in damages failed to disclose his involvement in two legal matters—a personal bankruptcy in 1993 and a lawsuit by his former employer, Seagate Technology Inc. According to court documents, Samsung has a “substantial strategic relationship” with Seagate and the lawyer who filed the complaint against juror Velvin Hogan is married to an attorney employed by the firm representing Samsung in its current IP litigation with Apple.

“Mr. Hogan’s failure to disclose the Seagate suit raises issues of bias that Samsung should have been allowed to explore,” Samsung argued in support of a new trial. The company also suggested that the juror failed to disclose the lawsuits in an effort to “secure a seat on the jury.”

Even if the juror was not entirely truthful, Samsung will likely have a difficult time proving bias. Federal courts have routinely held that not all juror biases adversely affect a litigant’s right to a fair trial.

Under the Supreme Court’s two-prong test, “[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Here, Hogan maintains that he was only asked to disclose his involvement in any litigation within the past ten years and that both matters occurred outside of the specified time period, according to a Bloomberg report.

How Can I Help?

As this case highlights, many IP cases do not end with a jury verdict. Through post-trial motions and the appeals process, litigants can continue to challenge prior rulings and, in some cases, ultimately prevail.

If you need help to protect or patent your ideas, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

MySpace Prevents Apple From Trademarking Logo.

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Seeking to regain its relevance in the ever-changing world of social media, former giant MySpace may be able to rely on the momentum of a recent intellectual property victory over Apple. The Trademark Trial and Appeal Board recently denied Apple’s bid to trademark its famous music icon after determining it was too similar to a mark already registered by MySpace. Both marks depict a double musical note in an orange rectangle.

Using traditional “likelihood of confusion” analysis, the Board concluded that an average consumer would be unlikely to discern the marks. As explained in the decision:

In view of the facts that the marks are similar, the goods and services are related and are encountered by the same classes of consumers, we find that applicant’s double musical note and design for “computer software [..]” is likely to cause confusion with the registered mark comprising a double musical note and design [..] for listening to MP3’s and for sharing MP3’s and music playlists with others.

The Board acknowledged that when placed side-by-side, certain differences between the two icons do exist. However, it was quick to note that “the test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression so that confusion as to the source of the goods and services offered under the respective marks is likely to result.”

The Board also rejected Apple’s argument that the trademark held by MySpace was weak because eight other trademarks using similar musical notes. Ultimately, the Board found that the Apple and MySpace marks had more in common than the other marks. The Board also cited the similarities in how the marks would be used. “Applicant’s software and the registrant’s services perform similar functions: controlling digital music,” it noted.

Even powerful companies like Apple do not always come out on top in intellectual property disputes.  MySpace was victorious in this case because it was able to demonstrate a likelihood of confusion with its existing mark.

How Can I Help?

If you need help selecting or protecting your brand or trademark, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Asus Transformer Prime Enters the World of Amateur Astronomy

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Here is a story of how a Transformer Prime owner used his tablet to take images of the moon.  I also have a Prime and use it to control my mount for astrophotography using this great program from Souther Stars SkySafari Pro (both fro iOS and Android) and the Blutooth adapter that they also sell.  There are a lot of other astronomy programs, both free and for pay, that are available.  Also, there is a great program that will allow you to control your Canon camera from your phone/tablet.  This combined with SkySafari equals a portable astrophotography setup that is hard to beat.  Let me know if you have a favorite tablet/smartphone astronomy program.

– Ex astris, scientia –

End of the App Lock-In?

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As I was perusing my favorite technology blogs regarding, various smartphones, I was interested in the new Windows Phone 7 (WP7) Nokia Lumia 900 reviews.  I noticed that every article mentioned how fast it was on a single core device.  The constant reference to the single core brought out the attorney in me, so I did a little investigating.  It seems that there is no multitasking for applications in WP7.  Not a terrible limitation by any means.  However, I personally have looked at the Nokia and other WP7 phones along with Windows 8 and have no desire to have a Duplo/Lego phone that does more to annoy me than accomplish my work.  Your mileage and preferences may vary so don’t hate me because I don’t like your phone.

That being said, it dawned on me that if the new processors in phone and tablets were powerful enough, there is the opportunity to provide virtualization.  Virtualization on a phone or tablet would allow you to run multiple operating systems.  With the right set of hardware and software, a smartphone or tablet could run all the different segregated Apps.  This would mean a user would be able to run iOS , Android, Blackberry, WP7 apps on a single platform.

Just think one OS to rule all them all.

Is this the wave of the future, buy one, run all?  Or is this just a pipe dream.  Cast your vote in my poll.

If you have any software, hardware or Internet questions, please contact me for a free consultation.