This is ridiculous. It'll never stick in Europe, either. To make a trademark claim you need to be operating in the same sort of market, and you really need to prove that this restaurant is profiting from the popularity of Apple's brand by people confusing their logo/brand with that of Apple.
The latter is a real requirement in trademark law. It might be worded slightly different in the specifics, cause it's been a few years since I learned about it.
Another requirement for maintaining your trademark, is that you spend reasonable effort to protect it. That is, you can't trademark some word or logo and do nothing with it, and then when some other company happens to use it, grows big, you can't suddenly jump out of the shadows and say HAHA! I TRADEMARKED THAT (yes, that is indeed quite the opposite from what those software patent trolls are doing, patent law is quite different from trademark law, even though they both fall under IP laws).
In some strange and twisted sense, Apple's lawyers might have gotten the idea that this is how they should be protecting the Apple brand. Except Apple is not in the restaurant business, nor does the general public associate their brand with restaurants in any sense, so that's that.
> . To make a trademark claim you need to be operating in the same sort of market, and you really need to prove that this restaurant is profiting from the popularity of Apple's brand by people confusing their logo/brand with that of Apple.
The restaurant will probably go bankrupt from legal fees before this can be thrown out in their favour?
Slightly off-topic: Suppose they do go bankrupt, but somehow get some money to fight on (or sell the premises to get enough money to fight on) and win. Can they get compensation for the interruption of business?
I don't know anything about the law of Luxembourg, but in many jurisdictions prosectuing an unmeritorious lawsuit will result in the court ordering you to pay the legal costs of the other party.
Generally that won't fully compensate for the cost and hassle, but it does act as a deterrant for bringing frivolous lawsuits. Unless your legal department has a 9-figure budget I guess.
In most common law countries costs awards are discretionary (ie - the judge decides), but the general rule is loser pays.
Luckily in most jurisdictions, the party bringing the vexatious proceedings also ends up being the loser. Therefore innocent parties have some protection from being unilaterally screwed by getting caught up in the courts.
Yes, but the innocent parties have to win the suit in order to be awarded anything. If you have someone with a lot of money to sue you in order to annoy you, they usually try not to win, but just to extend the length of the process until your money runs out.
True. I agree that's a problem most modern legal systems are struggling to deal with.
Until they do all I can recommend for innocent parties who find themselves in that situation is to look for a lawyer who will take a quasi-pro bono retainer.
I'm currently representing such a party on a no-win no-fee basis, at the applicable court-mandated scale. If we lose I get nothing, and if we win I get the costs order (at a reduced fee).
I'm not sure how much this'd be important, but Apple (iTunes, really) has a presence in Starbucks stores. The lawyers might consider that enough to perk up their radar.
Exactly. I'm not sure why Apple is going after small cafes now to protect it's trademark. This isn't the first time it has happened, either (as someone has pointed out below). I really don't see them gaining anything by winning this case, or losing anything by letting it go.
Knowing little about trademark law, I'm wondering if you considered trademark dilution [1]. It appears to contradict most of what you've said, e.g. must operate in the same market and prove the offender is profiting.
The rules may be different for famous marks, and Apple's actions could make perfect sense.
From the Wikipedia article:
"Such trademarks would include instantly recognizable brand names, such as Coca-Cola, Kleenex, Kool-Aid, or Sony, and unique terms that were invented (such as Exxon) rather than surnames (such as Ford or Zamboni) or ordinary words in language."
So in this case, at least, I would think that 'Apple' is an 'ordinary word'.
IANAL, and I realize this is probably laughable from an IP lawyer's point of view, but ...
Why can't OverbearingCompany send a letter stating something like we notice your logo or other IP is similar to ours. We recognize that we are in different businesses, and so we choose not to pursue this matter at this time, but we reserve the right to pursue any legal remedy at any time in the future that we determine your material to be infringing on ours.
That would demonstrate that OverbearingCompany is practicing all due care, yet doesn't waste OverbearingCompany's time and avoids potential destruction of SmallUnderdog.
As things are, the mere existence of large, overbearing companies causes accidental and sometimes catastrophic injury to the small and cuddlies of the world. Is that really what IP lawyers dreamed of doing when they were kids?
From a legal perspective this would actually be worse then doing nothing. You've now recognized a mark which "might" infringe and tacitly given your approval of such a mark. In a later trademark case (with a new third party) the third party would go "look OverbearingCo you were okay with these guys!".
OverbearingCo is better off doing nothing at all, and claiming they never knew about the infringing work.
This is the same Apple that was sued by Apple Music (the Beatles' record company) and promised not to enter the music business. Then came itunes, and Apple Computers was rich enough to settle with Apple Music for millions.
Maybe this "appleaday" restaurant could promise Apple they won't enter the consumer electronics market, and then just do whatever the hell they want anyway.
In Walter Issacson's Book, Apple Inc paid Apple Corp $500 million dollars for the worldwide rights to the "Apple" name, and then licensed it back to Apple Corp. When you invest 1/2 Billion dollars in a name, you want to make sure you don't lose rights to it by not defending your trademark.
This is a (removedswearwords here) company that creates high tech gadgets under the brand (logo & name) of a fruit going after small totally unrelated businesses using that word _in the original meaning_, as - erm - reference to the fruit. You know, the one that existed before any of these companies were even started.
Bonus points for logos that are not even _close_ to the Apple logo (I could probably draw a badly damaged circle and would be nearly as close/similar). And one of the examples listed (the German thing) doesn't use the name 'Apple' (which might have some kind of protection, stupid or not) but the German 'Apfel' instead.
Maybe one needs to have deeper insights into trademark laws or general business practices, but for me this is the definition of bullshit.
IF we're missing something here I might need to apologize and revise my point, but even if you're calling your local restaurant 'somethingwithapple' and have gazillions of Apple gadgets inside (waiters with an iPhone/iPod POS system, cash registers with iMacs or whatever): There should be no way for Apple to ask for anything here. Apple (the word), as far as I am concerned, is public domain, old and has only a single proven meaning: Falls from trees, tastes good with chocolate or honey.
The idea isn't ridiculous. You could even start a company called Apple Computers Inc if you could effectively make the case that consumers are not confusing you with the big Apple.
If your theory holds true, then why was Apple Corp able to win $500 million from Apple Inc? Do you really think there was anyone confusing the owners of the Beatle's Record Holdings?
Well, that was a settlement, so the strict answer is "Because they convinced them it was easier that way." But while I wasn't confused, I'm sure they were able to make a case that some people were, or the suits wouldn't have gone on that long-- if nothing else, because why bother?
Right now it would be easier to change the name of the fruit itself than change the way the money goes. Let's just call apples something else. And grow cubical ones. With no round corners, as Apple has patents on round corners.
This will also defend the farmers that grow apple trees, so they can still sell their products without telling everyone "No, I'm sorry, I don't sell phones, I sell apples. You know, the fruits. No, not silver, red fruits. No touchscreen."
Big companies should have a "chief legal officer" position. This guy is not a lawyer, but the overseer of the lawyers. His primary function is to decide when its in the company's best interest to pursue legal action and when they'll simply make an ass of themselves on the world stage.
Too often lawyers confuse what they legally can do with what is in their company's best interest to actually do. Sometimes the best legal action is not the best action.
My thoughts exactly. Companies might choose as this CLO someone with considerable PR experience. Lawyers, almost by definition alone, lack this experience.
If your company can not created enough work for you. Then you create enough work for yourself. You need to justify your pay check to the company somehow.
It's certainly appalling if true, and would be another example of big business putting a glass ceiling on independent entrepreneurship, but I would like to know the exact reason behind the lawsuit.
Given Apple's nature, I would be more apt to believe the story of Appleaday was using a hackintosh for their POS system.
Actually, it happens quite often and not just with Apple. The mobile company, Orange, has been doing the same to companies with the name 'orange' in it. It normally starts with threatening letters from lawyers, where small companies often can't afford decent legal advice to defend themselves. Some yield, others put up a fight, but the aim is to reduce as many other companies using a similar name as far as possible.
It's strange that the best examples I know of are all the names of fruits.
Any time a story like this pops up, regardless of the company involved, I assume it's the fault of some overzealous subcontracted lawyers. I can't imagine any sane company executive approving something like this, since it makes absolutely no business sense. It only creates bad PR.
Some people like to start a restaurant -> file the name 'AppleADay' -> name is approved -> they start the restaurant -> Apple files a complained about the name.
Seems like this is an automated action from Apple.
It seems Apple enjoys digging themselves into a PR hole with all these ridiculous lawsuits. A lot of negativity can destroy a man, and it can destroy a company, too. I think they should focus on the positive and constructive things, especially now that Steve is gone, rather than pursue this path.
> The Olympics has also sued and won against places that were around before them (the modern olympics) that use Olympic in any part of their name.
A large part of that is because various govts give "Olympics" special treatment via explicit legislation.
Govts do this because failure to do so makes the IOC angry. Since Olympic venues lose money, IOC anger should be seen as a good thing but politicians benefit from pissing away money on hosting an Olympics so ...
From my experience, Most of these legal attack were initialed by small - mid size law firms, they actually didn't received direct orders from Apple, but doing this to get paid by bill Apple legal department for their works. This is a ego system for those small firm even individuals to live with
As the legal holder of the trade mark, only Apple can bring/authorise someone to bring these proceedings.
Acting without explicit instructions, or representing that you are authorised to act for a party is a quick way for a lawyer/law firm to lose the right to be a lawyer/law firm.
i can't help but think that, due to the current legal climate, a company has to actively defend their trademarks to establish precedents for future lawsuits. i speculate that apple does not see a threat in the Apple-a-day restaurant, but feels it is strategically to their advantage to go through the motions in court. i speculate that apple doesn't care about the outcome of this lawsuit.
That's my query. I thought you could only sue if it infringes on your trademark in your particular field? They're going on like they want us to rename the fruit.
It is not Apple but the copyright system that is rotten to the core.
Copyright infringement requires the copyright holder to litigate to keep the copyright. If there is a preceding history of infringement that Apple knowingly ignores, there comes a day when a willful and harmful infringement cannot be stopped.
It's seems many people don't understand how a market works. Companies are not evil for evil's sake, not even a company like Apple. Sending a cease and desist letter to a small restaurant is a cost that would be eliminated if it was possible without risking a much greater cost. Apple is not ignorant about the PR pitfalls either. They are forced to weigh risk vs risk and act accordingly.
Instead of coming to premature conclusions that border on delusion, we should ask ourselves what mechanisms exist in the market that forces a multi-billion dollar global conglomerate to go after a small restaurant.
Forget the notion that Apple or any company is doing stuff like this out of spite. That is a red herring. The system within which Apple and AppleADay are actors needs to be changed and situations like these are data on what is wrong with it.
Listen, I'm not conflating Apple into a single person with horns and a tail. I'm none of their fans, but that only plays into my tone/adds some sarcasm to my posts and doesn't change my general attitude.
As someone pointed out you first talked about copyright, but this seems to be a trademark issue. Now I'm the first to admit that I'm not a lawyer etc. pp, I don't know shit about trademarks. And I certainly have not the slightest clue about US (Apple's home) laws and regulations.
But no, this is not something that makes sense under any regulation that mankind can have invented while sober people were in charge. An apple is a fruit. Period. Not a trademark. If you happen to grant a trademark for that name than that's unfortunate, but doesn't change the fact that this word has a meaning and will be used for that.
If you choose a specific image for your company you need to protect that logo. But this _doesn't_ include scaring little guys that happen to draw this common everyday thing in a totally different way for their totally different business. That's insane.
I kind of understand your point and fair enough: We should blame that trademark (and .. copyright) system every day, just because. But please, you cannot conflate these things. However broken the system(s) are, these cases don't make sense in any case. Compare the images. Think about the business involved.
Aluminum gadgets with distinct apple icon engraved vs. food shops serving apple based dishes and drinks using the word apple in their name / a drawing of an apple as their logo.
Out of spite? No, probably not. Totally unnecessary, even considering your point about broken markets and laws? But of course! Probably some lawyers gone mad, as others stated - they might be able to bill some hours for this crap.
Just please don't ~defend~ this by saying that Apple needs to do this, or else..
Okay, I'll try to explain. It is a reasonable question. First, it's important to understand that trademarks are unique among kinds of intellectual properties because they are valid in all eternity if you continue to use them. Patents and copyrights are at least supposed to expire. Not trademarks.
Now let's say you are managing a team of highly coveted people with the task of protecting the Apple brand world wide and for all eternity. What is the biggest threat you can identify? Is it that Samsung will suddenly launch the Samsung Apple phone? No.
Trademark dilution laws are in place only for very famous brands, and dilution is for brands what erosion is for mountain tops. Apple wants their brand to remain strong for 200 years and more. During that time natural erosion will have completely reshaped our cities and landscapes. Our language will have changed many times over and many of the idioms and sayings we use now will be incomprehensible to most people. It is in this environment that Apple the brand must survive.
A modern skyscraper has a theoretical infinite lifetime because it is constantly maintained. Otherwise it would erode and break down in a couple of decades. In a similar way will a brand erode in the minds of people if not properly maintained. Basically what happens is that the brand over time becomes associated with a general category of products instead of a specific manufacturer. So that when someone says "I'm thinking of buying an Apple, can you recommend a good model?", no one any longer thinks she actually means a device manufactured by Apple. It's like ordering a Coke and getting a Pepsi without reflecting on the difference.
So you are the brand manager. The biggest threat you have identified spells long-term dilution. You think about the term "Apple". It is different from let's say "Coca-Cola" because it's also a fruit. How do you factor this into your anti-dilution strategy compared to the brand manager at Coca-Cola? Are you more afraid of dilution than they are? Or do you think that the existence of the namesake fruit will help protecting you from dilution?
No matter what your decision would be, Apple's brand division has clearly decided that they need to be more thorough than most brands. It might be their culture or strategy, but if anything it is a sign of thinking long-term and risk-averse.
And when people say "how can they act like this, don't they know that apple is a fruit?", my theory is that they are completely aware of the fact and it actually makes them more anal than they would have been if their brand would have been Xcrublbob.
Can you explain how your previous (paraphrased) "people might not understand that the market forces Apple to act like this" and your (well explained, again my words not yours) "Apple might intentionally _decide_ to fight every remote chance of trademark violation because they chose a common word as a trademark in the first place" fit together?
I get your explanation here. I don't think that this should be valid and don't agree with the actions taken obviously, as stated a couple times in the thread. But you make a good point explaining possible reasons to go down that route.
However, if they _decide_ to go down that route - just to be safe - following the same thoughts as yours, aren't we back at the 'company acts evil' starting point? The one that you wanted to dismiss or weaken when you claimed that they might be _forced_ to act in this particular way?
What I am fumbling to get across is that good vs. evil is a far too simplistic model to even remotely fit reality. Everybody exist and works within extremely complicated systems and relationships. And to make it even more confusing, we tend to think short-term when we judge others but long-term when we make our own decisions. And almost all differences in opinions comes down to short-term vs long-term thinking.
Imagine these three poor guys now fighting for survival while battling Apple in court. It is to me not at all unimaginable that they some day find a 12 year old boy standing outside their restaurant with a sack of apples, selling them to by-passers for a dollar each. And that they proceed to kick the boy away with snide remarks about how he should know better. I can also imagine a bystander asking them, "Why would you do that, there is no harm to your restaurant from a boy selling apples outside" and them replying "Yeah he's a nice kid. But if we let him be the municipality might think that it is us that are selling fruit in the street. We already had problems with our business permit, and with this huge Apple litigation on top of it, we don't want any more trouble."
The bystander thinks that in short-term there is no harm at all having a kid outside selling apples. The restaurant owners think long-term and decides that they don't want it to be the beginning of a development they can't control. Both perspectives are valid although as outsiders we think that the long-term risks the restaurant owners worry about are grossly overstated and we don't have the insight to begin with. But they might be right to take a small risk of bad publicity to mitigate what they see as big risk in months or years to come. Nobody knows beforehand.
It is not that they (Apple or our imaginary restaurant owners) are forced to take this course of action. But they act in a system where they see it as the right thing to do. And that doesn't make them evil. Evil would be to go out of their way to harm others for no other reason than the inherent joy in doing so. It doesn't fit into my world view that Apple or any large corporation is doing that [insert specific exception to that rule here for a clever pun, i.e. "except Facebook, they are evil to the bone"].
And: I'm not saying that the imaginary situation above is exactly the same as the real one here. It is just an illustration of how we as bystanders never really knows what goes into a decision.
The latter is a real requirement in trademark law. It might be worded slightly different in the specifics, cause it's been a few years since I learned about it.
Another requirement for maintaining your trademark, is that you spend reasonable effort to protect it. That is, you can't trademark some word or logo and do nothing with it, and then when some other company happens to use it, grows big, you can't suddenly jump out of the shadows and say HAHA! I TRADEMARKED THAT (yes, that is indeed quite the opposite from what those software patent trolls are doing, patent law is quite different from trademark law, even though they both fall under IP laws).
In some strange and twisted sense, Apple's lawyers might have gotten the idea that this is how they should be protecting the Apple brand. Except Apple is not in the restaurant business, nor does the general public associate their brand with restaurants in any sense, so that's that.