
Apple Inc vs a small Restaurant from Luxembourg - littleiffel
http://www.williambrownstreet.net/blog/?p=374&
======
tripzilch
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.

~~~
antihero
> . 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?

~~~
eru
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?

~~~
westicle
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.

~~~
eru
Aren't there also jurisdictions were the losers pays the winner's costs by
default?

~~~
westicle
Possibly.

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.

~~~
eru
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.

~~~
westicle
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).

~~~
eru
It also seems like insurance might (in theory) be a good fit for the
incentives encountered.

------
sixtofour
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?

~~~
mikeryan
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.

------
bigiain
Didn't Apple do this themselves back in the day?

Anyone else remember the story behind "sosumi"?

<http://en.wikipedia.org/wiki/Apple_Corps_v._Apple_Computer>
<http://en.wikipedia.org/wiki/Sosumi>

------
Hopka
Similar story with a small cafe in Germany:

[http://www.geek.com/articles/apple/apple-wants-a-german-
cafe...](http://www.geek.com/articles/apple/apple-wants-a-german-cafe-to-stop-
using-this-logo-20111021/)

I'm curious if more stories like this one pop up.

------
drcube
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.

~~~
ghshephard
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.

------
kitsune_
I think this just shows how ridiculous the idea of a trade mark is when it
comes to words in the dictionary.

~~~
darklajid
No, this is worse.

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.

~~~
Retric
Trademarks are fairly limited, but Apple does have a trademark for Apple Cafe
not just Apple.

~~~
darklajid
They missed to register for apple pie and - going all the way - 'pommes
frites'?

~~~
onemoreact
I think they saw plenty of overlap between starbucks customers and Apple
customers. [http://www.tuaw.com/2009/06/03/from-a-parallel-universe-
the-...](http://www.tuaw.com/2009/06/03/from-a-parallel-universe-the-apple-
cafe/)

Still, I think they can safely let that trademark die a quiet death, because
they never did open any of them.

------
noonespecial
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.

~~~
bryze
My thoughts exactly. Companies might choose as this CLO someone with
considerable PR experience. Lawyers, almost by definition alone, lack this
experience.

------
littleiffel
There are hundreds of cafes called Apple, Big Apple, Red Apple...

There are cities beiing referred to as Big Apple...

------
padobson
This article needs some citation to the lawsuit.

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.

~~~
kokey
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.

------
schrototo
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.

------
GiraffeNecktie
This is what happens when the legal department operates without adult
supervision. Lawyers gone wild.

------
ajanuary
Hey Apple, there's a shop near my parents simply called "Apple". It's logo is
a picture of an apple. That seems a more likely candidate to go after.

------
grigy
I'm curious how Apple Inc. missed the AppleBee's restaurant chain.

~~~
sukuriant
The lawyers-with-too-much-time-on-their-hands probably go to AppleBee's
sometimes and don't want that company to disappear.

Or, they don't think they could win that suit.

All in all, appauling.

------
tintin
Link is quoting from this article:
[http://www.wort.lu/wort/web/en/luxembourg/articles/2011/05/1...](http://www.wort.lu/wort/web/en/luxembourg/articles/2011/05/149560/index.php)

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.

------
yaix
Well, I am pretty sure soon we will have to rename the fruit.

Suggestions for a new name?

~~~
GreySyntax
Not-a-banana-more-like-the-computer

------
nextparadigms
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.

------
ck2
Amazon has sued (and won) against business that were around well before them
and didn't sell books, using the name Amazon.

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.

There is little reality or fairness in trademark law apparently.

~~~
anamax
> 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 ...

------
wenxin
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

~~~
westicle
I don't know what your experience is, but no.

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.

------
dustingetz
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.

------
kingsidharth
An empty mind is devil's workshop. And a jobless attorney dept. is... well...
they do this.

------
coob
This is why Apple have a trademark on 'Apple Cafe':

[http://www.tuaw.com/2009/06/03/from-a-parallel-universe-
the-...](http://www.tuaw.com/2009/06/03/from-a-parallel-universe-the-apple-
cafe/)

------
program
I've read this story back in May:

[http://www.lessentiel.lu/fr/news/luxembourg/story/La-
pomme-d...](http://www.lessentiel.lu/fr/news/luxembourg/story/La-pomme-de-la-
discorde-22671433)

~~~
littleiffel
If i am informed correctly, the story came to Luxembourgish newpapers in May
2011

------
Joakal
Does Apple Inc own the section of trademarks regarding food service?

~~~
sabret00the
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.

------
abijlani
Let's see go out of business or just change your name. Seems like a no-brainer
to me

~~~
TDL
The no-brainer is letting someone else define your marketing strategy & the
name of your business?

If more small & mid-sized companies fought these silly claims there would be
less of them.

------
notmuch
Oh Hacker News, I see the balancing act, tit-for-tat.

Careful, approaching CNNness ...

------
mishkovski
Not closely related but this reminds me to:

<http://en.wikipedia.org/wiki/Macedonia_naming_dispute>

It's ridiculous.

------
martinkallstrom
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.

~~~
darklajid
Copyright infringement? Where?

\- The common word 'apple' plus translations in every language ('Apfel')?

\- A generic image of an apple? Using completely different colors, a wildly
different style and lacking the 'missing bite' identification?

Humor me and do a google image search for 'still life apple' and tell me why
not every one of those could be flagged as 'infringing' just as well?

~~~
martinkallstrom
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.

~~~
darklajid
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..

~~~
martinkallstrom
I'm sorry, I don't get your point.

