Irrelevant to the discussion. The relevant point here is that it isn't blocked, not when Adobe got a version ready.
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Apple Clamps Down on iOS Device Giveaways
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Irrelevant to the discussion. The relevant point here is that it isn't blocked, not when Adobe got a version ready.
What's that? You don't understand the twisted thoughts of the convoluted control-freak brain of Steve Jobs? You must need more Apple flavored Kool-Aid, my friend.
It's bad enough that Apple tries to enforce their will for software through licensing agreements, but it's something else to try and tell people to whom they can and cannot 'give' their bought and paid for hardware to (which people 'own' unlike software which you supposedly only 'license'; I find that BS too on many levels, but that's another bag of hurt altogether). I'm guessing this falls under some kind of discounted corporate purchase agreement or something. Otherwise, I can't imagine what legal ground Apple has to stand on.
It's a little difficult to give an iPad away as a prize at a fundraiser, for example, if you cannot let people know that the iPad is the prize.... I don't see how anyone that isn't mentally challenged could think that say McDonalds giving an iPad as one of their "Monopoly" prizes is somehow connected with, related to or otherwise impacting either direction Apple themselves. It's a freaking prize. Crap like this should have no legal bearing either way. It seems like 'freedom' is becoming a rare commodity in a country that claims to be about freedom, IMO.
This country and society, like all others in the world, recognizes that one person's "freedom" can be another person's loss. If you think your pursuit of happiness includes the freedom to have a huge outdoor party in your backyard past 2 a.m. playing the banjo rap of L'il Nemesis T at 100 decibels, then your next-door neighbors and their baby lose their freedom to sleep undisturbed.
The modern laws affecting intellectual property, including that of trade and service marks, are the product of hundreds of years of balancing the freedom of one person to say or publish anything he likes against the freedom of another to invent something valuable and profit from it. A brilliant and meticulous craftsman, say, produces a beautifully made knife, and stamps it with his name. The public comes to recognize the superior quality of the knife and associates it with the stamped mark, "Jim Bowie". In the absence of trademark laws, any huckster can produce a similar looking but otherwise inferior knife for half the cost, and copy the "Jim Bowie" stamp, and pass it off as the original. Jim Bowie's reputation as a craftsman is quickly eroded, as is his income, and the public is deceived and pays for something it doesn't receive. Trademark, service mark, and similar laws were made to avoid this harm, at the cost, it must be conceded, of the freedom of hucksters.
Eventually the stamps became distinctive. A good example is the brand of Coca-Cola which appears on the producer's authorized products in a very particular script which is known all over the world. In every civilized society that script is protected, and no one has the freedom to just slap "Coca-Cola" on something they whipped up in their bathtub, put it in the very distinctively shaped Coca-Cola bottle, and sell it. Nor may anyone use the distinctive Coca-Cola script in their advertising without permission from the owner of the mark to benefit themselves. The more the mark is used by others the more diluted the power of the mark, and the less its value.
Thomas Jefferson, no slouch when it came to protecting freedom, first proposed a U.S. trademark law in 1791 to protect the makers of sails. Our modern law was first codified in 1881, and most recently in the Lanham Act of 1946. This area of the law, like any body of law attempting to fairly balance the rights of millions of people in varying situations, is complex, and difficult to understand without a knowledge of the many forms of fraud, counterfeit, and deception that have arisen to steal someone else's reputation and take the public's money under false pretenses. One of these complexities is the concept of "fair use". If someone else creates a knife that he thinks is demonstrably even better than Jim Bowie's, he ought to have the freedom to attempt to persuade the market of that fact. Accordingly, despite the protection afforded Bowie under trademark law, his competitor may publish an ad saying that his blade holds a sharper edge twice as long as the Jim Bowie knife does. The competitor is clearly profiting from the use of the Bowie name, but he is clearly not attempting to sell his product based on any confusion of the public as to the endorsement of Bowie of his knife, or that the craftsmanship of Bowie should be expected from his knife.
Similarly, Pepsi may advertise that its sodas taste better than Coke's, but it may not use Coca-Cola's distinctive script, as that is not necessary to make Pepsi's point, even though the identification of the product it wishes to compare itself to does require Pepsi's use of the name of its competitor's product.
Apple owns the marks that have come to be widely associated in the public mind with quality, durability, innovation, technical support, and a certain cachet. Apple has registered its marks according to the law, and its rights are protected to a certain degree, and the freedom of others to use the words and distinctive fonts which are identified with the marks has been curtailed to a certain degree. Under the law judges have to determine just what is fair use and what is not, and Apple has claimed a variety of protections regarding the use of its protected marks by people unconnected with Apple in order to promote their own products or services and to profit from the use of Apple's name. Apple has every right to protect the brand it has spent many millions of dollars to burnish by inventing, manufacturing, and supporting products that have earned a good reputation. Similarly, the public may not be barred from ever whispering the word "Apple" or the names of the company's products. One day a court may be called upon to once again carefully balance the freedom of Apple to benefit from its reputation and the freedom of others to fairly use Apple's marks, and that court will bear in mind the long history of intellectual property law, and an awareness of what outcome is in the best interests of society as a whole so that craftsmanship is encouraged without overly restricting the rights of others.
An understanding of the law, of history, and of economics is essential to making these decisions wisely, and acquiring this depth of understanding is neither easy nor quick. Nonetheless, the continued existence of any democratic society depends on its citizens being sufficiently informed and educated to at least understand the values and principles of the laws which govern them.
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Yes, except that a corporation isn't a person (and legally shouldn't be either, IMO). We have given corporations all the rights and control in this country. In short, we have SOLD OUT this country to greed and lobbying. We might as well call this The Corporate States of America. We've become a greedy, self-serving nation and the people have let it happen because they're too busy talking on their cell phone to notice their liberties are being taken away (e.g. look at the Supreme Court's recent ruling on the right of police to storm your house if they hear a toilet flush instead of getting a warrant. The 4th Amendment was just rendered useless). But the entire world has a history of the rich and powerful forcing their will on everyone else, so I shouldn't be surprised. That doesn't mean I have to like it or take it sitting down.
You seem to like what's happening based on your defending corporations and their right to give the public the shaft, but some of us remember this country was founded on "We The People" (meaning the majority), not "We The Corporations" or "We The Ultra-Rich" (tiny 5% or less minority).
People in this thread getting angry just shows the stupidity of the average Macrumors viewer.
First, EVERY SINGLE COMPANY has guidelines for promotional items. Every single one. When I worked at a pretzel store in my teens they had guidelines for people offering coupons. This is done to show that the promotion is legitimate and a genuine product from that company is being given away.
Second, people are talking about "If I have an office party and want to give an iPad as a gift Apple is taking away my rights!". Um, no READ the article. It has to do with major corporations with giveaways to their customer base. Apple isn't going to care if your office party or whatever is giving stuff away as door prizes.
Third, Apple is just suggesting to these companies to follow the guidelines. They aren't suing anyone, they aren't denying them promotions, they are simply asking that they follow guidelines.
People get too bent out of shape over absolutely NOTHING.
First, EVERY SINGLE COMPANY has guidelines for promotional items. Every single one. When I worked at a pretzel store in my teens they had guidelines for people offering coupons. This is done to show that the promotion is legitimate and a genuine product from that company is being given away.
Second, people are talking about "If I have an office party and want to give an iPad as a gift Apple is taking away my rights!". Um, no READ the article. It has to do with major corporations with giveaways to their customer base. Apple isn't going to care if your office party or whatever is giving stuff away as door prizes.
Third, Apple is just suggesting to these companies to follow the guidelines. They aren't suing anyone, they aren't denying them promotions, they are simply asking that they follow guidelines.
People get too bent out of shape over absolutely NOTHING.
While I agree with you regarding the outsized political influence of large corporations and wealthy individuals, in the area of intellectual property it is often the case that the weaker the protections for innovators and craftsmen, the greater the advantage to large corporations. In my example Jim Bowie, the knife maker, developed and created an exquisitely made knife on which he stamped his name. Bowie may not have the resources to distribute his knives widely, nor be capable of managing the scale of manufacturing necessary to satisfy the high demand arising from the strong reputation of his product created by satisfied customers. The high demand and short supply drives up the price for his work, and increases its appeal to many potential customers. Jim Bowie has earned the right to work alone in his workshop producing as many high quality knives as he can (or choses to), knowing that the high price they command in the market will still allow him to live a comfortable life.
In the absence of strong trademark laws though, nothing would prevent a large well-capitalized corporation from mass producing hundreds of thousands of knock-off Bowie knives, with a mark on them identical to Jim Bowie's. These knives would be snatched up by eager customers, but very soon the inferior quality of the knife, and the difficulty of the individual consumer to distinguish by sight a genuine Bowie knife from a knock-off would lead to the public's disgust with all Bowie knives. The corporation will have made a huge profit, and when the market dries up, it can simply find somebody else's valued product to counterfeit. Jim Bowie the individual, on the other hand, will have lost a considerable portion of his potential business, if he is able to salvage anything at all.
The law can not respect persons. It can not give greater rights to a rich man than to a poor one, nor can it give less protection to a great craftsman who is wealthy than to one who is poor. When people work collectively to create a valuable product they don't lose their right to protection. If Jim is a master forger of blades, but his buddy Joe is better at making handles, there is nothing wrong with their teaming up to contribute their skills and to share the profits of their venture. If under the laws of their state they incorporate to limit their liability to customers who may cut themselves with a Bowie knife to only what they have invested in their business, why should they as a result lose their right to prevent others from stealing their hard-earned reputation?
In the political arena there are good reasons for distinguishing between corporations and individuals, as state legislatures in this country had for over a hundred years, but when it comes to intellectual property rights, including trademark rights, there is no basis for making a distinction. If anyone has the right under the law to limit how a penny auction operator, a used car lot, or an international pharmaceutical company can use another's business name or product name in their promotional giveaways, then Apple should have that same right too--no more, no less.
Certainly it is aggravating when we perceive that a giant company is trying to use its wealth to abuse an individual unfairly, but the phenomenon of the strong abusing the weak has been with us since we crawled out of the primeval slime. What distinguishes civilized societies is their ability to use their collective strength to protect the weak and to control the strong. Our system of laws and courts is designed to do just that, and so long as our judges are just and uncorrupted we can preserve a fair society. When judges have to run for election, and when the outcome of those elections are heavily influenced by enormous sums of money raised from corporations and wealthy individuals whose interests are not aligned with the majority of citizens, or where the voters are not sufficiently educated or motivated to participate intelligently in elections, then just societies are in danger.
So while I certainly agree with you that there is always a risk of permitting a small faction of citizens to use their wealth or strength to the detriment of the majority, a well-informed electorate wise enough to resist the self-interested blandishments of any special interest group can always vote in their own best interests. In the end, no matter how wise and wonderful the system of laws and values a society may inherit from its forebearers, in a democracy every generation gets exactly as just a society as it deserves.
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None of this has anything to do with this issue. This isn't about someone selling something that looks like and is called an iPad. It's about others giving away iPads in promotions.
I have no idea what on Earth ground Apple could possibly stand on. Which doesn't mean they won't get away with it, since as the previous poster pointed out-we've given an increasingly absurd amount of rights to corporations, which originally (and which should) have no rights beyond an extremely narrow band we give them, at best.
While "giving away an iPad" isn't generally an infringement of trademark, exactly how you go about giving away an iPad certainly can be. Historically, the First Sale Doctrine gives a purchaser exemption from trademark infringement claims when re-selling or giving away trademarked goods, but in the Internet age the limits of the doctrine are far more easily reached. For example, the use of the Apple trademarks of iPod and iPad can be used to lure a consumer interested in acquiring those products to a web page where completely unrelated goods are offered for sale along with a long-odds chance to randomly win an Apple product. This creates what the law calls "initial-interest confusion", even if once the potential customer arrives at the target site there is no longer any confusion. Such offers can also be used to aid in the key-word driven positioning of the website in Google rankings, and this also is impermissible under trademark law. And of course there is the much more blatant infringement where the advertiser attempts to create the impression that his products are endorsed by Apple: a seller of iPad cases and stands who offers to give away iPads may be successful in snaring the less sophisticated.
Further, even if the giveaway itself is done in a non-infringing manner, Apple's memo focuses on vindicating its rights to prevent any permissible nominative use of its product names from being rendered in distinctive fonts, backgrounds, or taking on any of the other characteristics that are protected by its trademarks. The law permits using trademarks to identify, but only to the extent required to identify, so using Apple's font would be an infringement since it is not essential to communicating what is being identified. Apple is required by trademark law to vigorously protect its marks on penalty of losing them. While I understand people reacting to what they perceive is Apple attempting to prevent owners of their products from simply "giving them away", this is all about Apple fulfilling its obligation to control the way its marks are used by commercial strangers hoping to make money for themselves by trading on the popularity and desirability of Apple's products in order to peddle their own products which obviously are not as popular or desirable.
In any case, I'm really confused by your and the other poster's problem with corporations having the same commercial rights as sole proprietors, joint venturers, partnerships, trusts, or individuals. Why in the world should any economic agent have more or fewer intellectual property rights depending on what form of legal entity they decide to do business as? I can't think of any intellectual property rights that corporations have that are not available to individuals. Just what "narrow band" of rights do you think corporations should be restricted to? How about Price Waterhouse? That partnership has annual revenues of some $27 billion--should they have more rights than an incorporated plumber with annual revenues of $27 thousand? Do you think people need to come to court with their balance sheets or bank accounts in hand so judges can decide just how wide a band of rights they have?
I'm certainly not in favor of the wealthy or the powerful having any special rights or privileges before the law, but I see nothing fair about taking away rights enjoyed by everyone else just because the owner of a trademark has a corporate seal or because it is successful.
When it comes to paying taxes, being subjected to increased regulation, or giving campaign contributions, I'm all in favor of treating wealthy corporations appropriately differently, but you lose me when you say they are entitled to any less legal protection of their property than anyone else has.
Bingo.
I used to own a fast food franchise. You would not believe the rules we had to follow when it came to trademark protection. Whenever we did a movie tie-in promotion, I as the owner, had to sign a contract with the studio agreeing to what I could and could not do with the merchandise.
What Apple is trying to do is limit how their products are used to promote someone else's company. If you are holding a fundraiser for your school and have an iPad as the top prize, then Apple doesn't care. Just try to follow their guidelines for logo use.
But if you are giving away iPad's to every 100th subscriber to your pron site, then yes they do care, because you are getting something from the use of their products and or trademarks.
Dumb question, but why is iPad not in the spell check dictionary of this site?
The Apple name is an extremely valuable trade name. The company has invested billions of dollars to establish that value. Why would anyone assume that they could freeload on their success to promote whatever product or service they're selling. Sure, you can give away as many Apple products as you want, but you can't use their name or product name or product image to promote your product. It's as simple as that.
How does saying you can win something do that?
Never said anything alone those lines, though obviously in general corporations should have EXTREMELY limited rights. Far fewer than are now actually being granted.
Sorry if I misunderstood your earlier post.
If you can win an iPad, say, by being the 100th customer to buy a Chevy from Slimy Al's Used Car Emporium, and Slimy Al has a huge billboard next to his lot that says in five-foot high letters: "iPods! iPods! iPods--Get Yours Here!", then Slimy Al is taking all the goodwill, reputation, desirability, and scarcity of Apple's iPad, and without any compensation or permission of Apple, using it solely to line his own pockets, despite the fact that he has absolutely nothing to do with iPads whatsoever. Apple has invested millions in inventing, supporting, marketing, and advertising the iPad. Putting aside for the moment any of the legal niceties, it is fair for Slimy Al to do this? Some courts would say that Slimy Al has created initial-interest confusion. A consumer may reasonably believe that what in fact is an inducement to buy a used Chevrolet is an opportunity to acquire an iPad, a thing he desires and believes difficult to find for sale. Even though by the time Slimy Al shakes his hand he is disabused of his belief, one of the second-highest judicial tribunals in the U.S has said that if there was confusion at the outset, then regardless of the fact that the customer buys only after being fully informed, there is infringement, since the seller has profited by obtaining a sale by intentionally creating confusion with a trademarked product. This is how saying you can win something can cause actionable confusion.
The legal basis for Apple's various positions is even more complex, and Lord knows I've been long-winded enough without giving you citations to cases and law review articles. I think it's fair to say that some of Apple's claims are in a controversial and developing area of trademark law, but it is also fair to say that virtually none of the positions Apple has taken in its memo is extreme or over-reaching. That doesn't mean that if taken to court Apple would win on every point: some, like prohibiting the use of their distinctive font, are pretty clearly well-recognized; others, like prohibiting the giveaway of their products as a promotion under any circumstances, are at the margin of the protection courts have afforded trademark owners.
Nonetheless, I think that unless you're an IP lawyer, the most interesting issues are the questions of fairness and the competing concepts now emerging of just what public good should be served by legally-protected trademarks. The spectrum runs from those who think that a trademark should only be protected to the extent necessary to prevent counterfeits, to those who believe that the goodwill and cachet that the trademark owner has created through investment, innovation, and execution should be protected from exploitation by anyone else. You can find cases that support just about every position along that spectrum, and my own view is that many of these cases are determined as much by the specific facts of the lawsuit or hypothetical than they are by the judicial philosophy of the court or the author. The Ninth Circuit Court of Appeals (covering California--the home of Apple--and other western states) is the leading proponent of broader protection for trademark owners, and this fact likely contributes to Apple's broader concept of its rights.
Although historically trademarks were protected by law to prevent counterfeit, the law has been expanded over the years. Beginning in the 1970's courts began to protect the trademark owner against others who used the trademark of another in order to advertise their own completely unrelated products creating what the Ninth Circuit called "initial-interest confusion". So, the legal argument goes, Joe ought not to be able to put up billboard on the highway saying, "BLOCKBUSTERS--Next Exit Turn Right", when "Joe's Movie Rentals" is positioned a quarter mile before a driver following the sign would reach a Blockbusters. The concept is that the infringer is taking advantage of the good will and reputation generated by the trademark owner's efforts simply to attract customers to his own business. The internet, with its meta-tags, search engine keywords, and context-driven banner ads, has generated dozens of lawsuits over the permitted use of someone else's trademark. May I outbid Apple for the right to have my website listed first when someone searches for "ipad" if I sell a competing tablet computer? May I purchase the right to display my banner ad above Apple's website? In all these situations someone is attempting to profit from the goodwill of another's trademarked property. Where should the line be drawn?
Certainly there is fair use. Anyone, including a competitor, can use the names of Apple's products to say there is a better or less-expensive product, or to create a gripe site at which people can complain about Apple's products. This rule furthers competition and free exchange of potentially useful information. The question, though, is whether as a matter of public policy, anyone can invoke the trademarked names of Apple's products simply to call attention to their own commercial product. It is clear that if the intent or result is to cause confusion in the minds of customers as to the origin or identity of the product being sold or the identity of the seller, it is a prohibited infringement. Similarly, the endorsement of the trademark holder can't be implied. I think it is fair to say, though, that it is less clear that Slimy Al will be found guilty of trademark infringement (although consumer fraud violation is another question). Judges and writers of scholarly law review articles often attempt to answer what I regard as a fundemental policy question by interpreting longstanding principles of trademark law, fashioning multi-pronged tests for the use of business, lawyers, and inferior courts. In my own view, the modern market requires a modern approach, and a legislative act amending or clarifying the Federal statute controlling U.S. registered trademarks, offers the best resolution, even better in my own view than a ruling by the U.S. Supreme Court.
All that having been said, there is, especially for a California-headquartered corporation, enough legal support for Apple's positions to justify Apple putting the world on notice that if you use their trademarks contrary to the way Apple thinks you should, you are setting yourself up for a lawsuit. Someone who wants to use an Apple trademark to promote their own business can decide if they want to challenge Apple's positions or that discretion is the better part of valor, but they won't be able to complain that they didn't have fair warning. Especially because we don't know what the specific facts of any challenge might entail, it's impossible to predict how such a lawsuit would be resolved, and I'm not at all posting to say which way I think a court would decide each issue. I posted because I was surprised that so many fellow posters seemed to be morally offended by Apple's memorandum, expressing the opinion, essentially, that only a power-crazed tyrannical mega-corporation could possibly stake out such an outrageous position. I thought it might be helpful to point out some of the principles of trademark law involved, some of the history of its development in response to changing markets, and the fact that virtually all of Apple's positions could find support in existing case law, and for defensible--if not universally convincing-- reasons. I also thought that the original news item raised intellectually interesting issues of fairness and public policy, issues that I thought were more worthwhile discussing than just calling Steve Jobs names or making uninformed declarations about the legality of Apple's positions.
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