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Apple takes legal action against small company with pear logo (iphoneincanada.ca)
771 points by _qulr on Aug 8, 2020 | hide | past | favorite | 333 comments



I actually had something somewhat similar happen to me, but with Twitter.

https://breue.com/twitter https://breue.com/86851616.pdf

I was working on a project called Scoper, which let you do video streaming. It had done fairly well at SXSW, and we had a decent amount of users. Just before we thought we were gonna be awarded a trademark for the name, we got a not so friendly letter from Twitter's counsel at Fenwick and West, telling us we were infringing on their "Periscope" brand, and listing some pretty clear demands. We never really thought of our app as a competitor to Periscope.

Our lawyer let us know that they had no strong grounds against us, but would drain us in a legal battle we could never afford. We told Twitter we knew they had weak grounds and that the case would just drag on, and we would rather save both sides money, if they would just buy us out.

They gave us a super low amount of money to drop the trademark application, transfer the domain, all brand related stuff, and remove our app from the App Store. It was kinda depressing, but it could have been a worse outcome.

To be fair, this wasn't outrageous like this pear logo case, but it was just a feeling of being bullied and knowing you don't stand a chance.


> Our lawyer let us know that they had no strong grounds against us, but would drain us in a legal battle we could never afford.

This is a clear failure of our justice system.


In Germany, unusually even for Europe, this is solved for civil cases by assigning a fixed fee per case that lawyers and the court itself must adhere to - they can't go below, they can't go above - depending on the claim value, usually around 5-10% of the claim itself in total for all three parties.

This is still nasty for the less advantaged individuals when faced with a claim that could lead to, say, a $10k maximum fee, but for smaller businesses any reasonable claim amount is still affordable and the "drain the other party's legal funds" tactic is practically outlawed.


Except it's not really solved. I've seen the "Streitwert" be inflated to half a million by a well known litigious video game publisher, using moon logic math. No details because the case has been settled.


What about cases that require much more work than $10k could buy? If a case goes on for many months/years then it would be reasonable to expect it to cost more than a quicker case.


The limit would be set higher for a complex case. But for a simple branding case nobody will need months/years of work.


Here in Germany, its only solved in theory. In practice, there are many ways around it.


Interesting. Could you expand on that ?


So in Germany you actually could have a pear logo for your company.


Yes, probably. See, for example, the recent battle between McDonald's and a small (relatively) Irish fast food chain called Supermacs, which McDonald's lost.

https://www.bbc.com/news/world-europe-49254551


It is definitely not a perfect system. The problem is society in general accepts this behavior. It is an absurd claim on its face. They should face social pressure for this behavior. The only thing that I think could make our various systems better is to change what we accept; outside of those systems. The media we are sold and consume should reflect what is important to us. If cases like this were blasted across the twitter verse and people actually cared, it would stop once the spending decreases following the exposure. We are seeing that in other arenas.

I remember reading about a culture in east asia or the pacific where farmers did not have written contracts and usually had very little problems. Everyone knew what was expected and fell in line. If a farmer were to break with the norm, I am sure it would have resulted in them being ostracized.

I hope one day we expect more from each other, and expect more from ourselves.


> It is definitely not a perfect system. The problem is society in general accepts this behavior.

The problem is the justice system accept this behaviour. We can not and should not depends on the public opinion in general to determine injustices to happen. That's why we have a justice system after all.


> The problem is the justice system accept this behaviour.

Judges already have the ability to throw out a case of it has no merit. Why are obvious cases like this possible is a question I'd like an answer to.

We already depend on public opinion in general to determine criminal Justice norms. In place of apple put a prosecutor, in place of pear company put suspect. Every single one of us commits infractions every day we exist in the USA. Protectors use prosecutorial discretion. They do not charge us for every single crime that has technically been committed, because the populace would be up in arms and the prosector would lose their job. Each plaintiff is like a prosecutor. They should be beholden to popular opinion, and that opinion should be that behavior like this should be unacceptable.


You cannot expect a fair society that relies on selective justice. Specially with so much social stratification and marginalisation.

Justice cannot behold on popular opinion at all. There is a reason for 'her' to be a blindfolded lady.

If 'every single of you are committing infractions everyday as you exist in USA' and black represents 40% of male prison population while are just 12% of the whole population and while black youth comprise 14% of the national youth population, 43% of boys and 34% of girls in juvenile facilities are Black, we could easily conclude that this system is highly unfair.

Note: while writing this comment it got my attention that in my mother language the words for justice and fairness are the same.


If you know there is a problem in a system and you expect someone inside to make the change, most of time you will be disappointed, TBH.


At the core of the problem is that society is not allowed to not accept this behavior. The systems by which Apple et al abuse their positions to harm small businesses and "the little" guy are literally enshrined in our legal and administrative code. Government decisions of the last 30 years, often regardless of party, have resulted in the single largest consolidation of corporate power under six umbrellas (Facebook, Apple, Microsoft, Google, Amazon, Netflix) in Silicon Valley history.

Extraordinarily lax antitrust laws (in both Republican and Democratic administrations, you'd expect the Dems to be tougher on this but follow the money trail and it's simple to see why), a general disdain for shareholder activism, and corporate culture in all of the aforementioned companies prioritizing the needs of advertisers over the needs of the end user.

> The media we are sold and consume should reflect what is important to us. If cases like this were blasted across the twitter verse and people actually cared, it would stop

I would have agreed with you fifteen, maybe ten years ago. The point of no return has been passed. Apple and Amazon alone are worth enough combined for public opinion to matter nil in terms of their actual business practices. They could suffer millions of dollars in bad press and shareholders would continue to invest and consumers would continue to buy product. Look at TSLA as a fantastic example -- Elon consistently sticks his foot in his mouth and makes a mockery of himself but TSLA short sellers continue to lose big time.

The only solution at this point in my view is a fundamental overhaul of antitrust law and safeguards to ensure competition in cutting edge industries, and collectivization of essentials like public internet and public utilities so the profit incentive doesn't get in the way of service. We're already seeing how terrible the outcome is with the Post Office, we don't need any additional privatization in the world of tech.


http://postalnews.com/blog/2015/05/09/postal-myths-2-the-usp...

The postal service is not private in any way shape or form.


I am well aware, but the inefficiencies posed by regulatory capture are often used as an excuse to privatize state property, in this case the USPS and the situation with the PMG intentionally hobbling it to make that very case.


Netflix, really? Very little content of their own, and facing increasing competition from established firms. I consider them a little fish in their field compared with Disney.


One improvement is for the loser to pay the winner's legal bills up to the amount that the loser paid on his legal bills.


You make the bills and awards proportional to income. Now large company has very little to gain by suing tiny company, but a lot to lose. And tiny co has a lot to gain, and very little to lose.

This makes big cos more risk averse - not a win, but likely no different in practice to the current US litigation landscape.

But it also makes them consider their relationship with Rest of World more carefully.


This is what I advocate for a long time.

On top of that the burden should be made equal by having the CEO participate when I am forced to, or to personally discusd with their lawyers.

In other words, a trial should be for the company a similar pain in the ass as it is for me.


What if there is no value per se? Sueing to cause a company like this to cease and desist would not pertain to your suggestion.


This would stifle small companies even more. Think of the reverse scenario where the large company is infringing on patents/trademark. If you sue, you better win because you risk paying double attorney's fees. With judges and juries making poor decisions a very real possibility that's a scary proposition.


A solution for that is for judges to award costs based on the merits of the case and ability of each party to to pay.

Tricky case where both sides have a legitimate reason to believe they are in the right - no costs awarded. Borderline barratry - full costs awarded.

One FAANG sues another - full costs awarded to the winner. Owner of a small corner shop wins against a FAANG - full costs. Other way round, no costs.

Also to set appropriate levels on what costs can be awarded (kinda like the German model). You want to spend 10M on suing a street market stallholder? Knock yourself out, costs awarded = 10k.


> If you sue, you better win because ...

I think it'd encourage companies to only sue, if the expected value from winning, was large in comparison to one's litigation costs times two.

Which seems ok to me


That's the most bright approach to rules about paying the other part's fees that I've heard about


Ain’t nobody got time for that.

So I have to work 9 hour days, come home and cook dinner, do family time, put kids to bed and then go shame random corporations for not following the spirit of the law?

I think that’s unreasonable. Ain’t nobody got time for that, and we have a lot of people who can get paid to do that if we just change the laws.


This is the point though -- society itself is a sick system (in the https://kottke.org/10/06/creating-a-sick-system sense) -- being kept in a perpetual state of crisis makes us unable to fight against the injustices being constantly perpetuated around us. And unlike a job or relationship, even if we fully realize what's happening, we're powerless to leave.


It's could be good enough to take your opinion into account while spending your money, or giving an advise on spending simeone else's money. You also highly probably have some time to occasionally express yourself publicly as you just did :)


How are you going to change the laws? It's the same problem.


> They should face social pressure for this behavior.

Dead simple : don't buy Apple at all and every time you can, explain why you don't and don't spend time explaining "how good Apple is a t anything". That single action wipes anything good they could do.


And don't use Twitter? And ...

And whenever someone sends you a link to a tweet , tell them... ?

Dead simple?


You don't need to be registered on Twitter to look at a tweet. Not having Twitter account is much easier then most people think. It also saves a lot of time.


>This is a clear failure of our justice system.

It is also ultimately the profound failure of society.


I really encourage everyone to read the Theranos book (Bad Blood: Secrets and Lies in a Silicon Valley Startup). The legal system is de facto used to bully everyone around the startup, and people cower in fear when a white-shoe law firm comes knocking.


The bigger problem from a societal perspective is that the “people cowering in fear” often includes the Dept of Justice. Prosecutors are assessed based on win rates, and they know how hard it is to go after a large company with the best lawyers. In some cases, the prosecutors personally know the people at those law firms, and remember them as the best students in their law school class. Would you go after a large firm protected by someone you know is smarter (and better at law) than you? Much easier to focus on the obvious scams and easy wins. This was part of how Goldman got away scot free with extremely questionable behavior like betting against their clients during the Great Recession, or UBS got away with just a fine for laundering cartel money (they sized their teller windows to fit the shoeboxes full of cash that the cartels were bringing in!).


Who is “our” in this case?


Or it is precisely the way the justice system is designed to work, by those who, de facto, pay the legislative (election campaigns, etc).


You mean "legal" system.


Clearly the large corporations disagree.


I had a similar case that I helped a relative with. They had a similar word in their business name as a foreign (popular at the time) baking company. My reading in Australia implied they had no real case either, the standards for Trademark infringement are relatively tight and case by case (see https://www.findlaw.com.au/articles/2064/thats-crazy-john.as... for one case where the industry is the same and names are very similar but branding is not). The notice was apparently triggered by an application for a local Trademark which tripped their alarms.

But as with you, it wasn't worth the fight. We got a cheap legal aid person to draft a letter saying we thought they didn't have a case but we'd play along if they covered our fees for renaming the business and updating stationery/website/etc. In the end it worked out OK and the business was renamed. I think she made a slight profit if you don't factor in the stress.


There is a good lawsuit Godzilla vs BagZilla. Bagzilla won.

http://bgbg.blogspot.com/2002/08/zillegalities.html

I created a groupware platform Officezilla (have since sold the domain). Almost as soon as I registered the domain the GodZilla trademark holders lawyers sent me a letter. I sent them a letter letting them know I appreciate their concern and to take a hike, never heard from them again.

Toho Company, Ltd. v. Sears, Roebuck & Co., 654 F.2d 788, 790-94 is precedent. Courts have to follow it and lawyers know it. You don't even need a lawyer to send Twitter packing.


I wonder whether Mozilla also encountered similar lawsuit.


Like the story here, your one is a story that needs broadcasting widely. It sounds like you took the pragmatic approach but that had to hurt a lot.


Curious what is the worst case outcome if one were to just put minimal effort into the legal process, basically just simply state your case and hope judge thinks other side is crazy?

For example, in breue's case he had enough money for lawyers, but pretend it was the same scenario only breue was an 18yo still living with his parents (who are not wealthy theoretically)

Does the judge just blindly believe everything Twitter says since they have lawyers?


I can give a perspective. I was filing a trademark (US) for an application that I am developing on the side. A gaming market place company opposed the trademark claiming possibility of confusion. They filed the opposition, I was determined to go to discovery with it.

After I filed my response denying all allegations, they blinked and we made a small change to the description of the trademark. (Something that I had offered them from the beginning).

From my perspective the worst that could happen is I would get to the point where I needed a lawyer (actual discovery) and could determine if it was necessary to continue.

Filing an answer to an opposition is not difficult and a little online searching goes a long way to help you avoid making mistakes answering the opposition suit.


This. You have to call a bully's possible bluff when you can do so on a shoestring.

They may seem to have unlimited resources, but a legal dept doesn't actually have a bottomless budget, and it has to demonstrate ROI to the CFO's office.

Many attorneys you might consult won't realize this, because they can't conceive of a scenario where you don't need maximal legal representation. When your only tool is a hammer, every problem looks like... :-)


It’s a little more nuanced than that. Lawyers have ethical obligations to provide sound legal advice and counseling, whether they’re paid for it or not. As in, the legal ethics structure doesn’t really allow for (purposely and knowingly) doing a shoddy job. The lawyer could be on the hook for either doing a bunch of free work or getting disbarred by signing up to do a ‘bare minimum’ job. Maybe there should be a carve out for situations like this.


I thought that's where law student interns come in. Basically law firms hire law students. When stuff like this comes up, the real lawyer can give hints to the law student and the law student goes talk with the client. The law student has no real obligation as far as the Bar goes (because they're just a student). The real lawyer also never made any direct advice to the client so they are also off the hook.


Law students do not "talk with the client" in the US. They're not licensed, so are barred from giving legal advice.


In these sorts of legal clinics the students work under a supervising attorney who is ultimately responsible for the representation.


> Maybe there should be a carve out for situations like this.

There already is one, it's called hourly billing. You come up with a reasonable plan, and you decide when to call it quits later if the bill gets too high.


The point of a carve-out would be to avoid any billing.


The worst case outcome is that you lose but ALSO become responsible for paying Apple's legal bills.

I think that's incredibly unlikely, (in the US legal system there isn't a lot of cost shifting for trademark suits) but if you assume that the person responding to the lawsuit doesn't know what they're doing, then I can't rule it out.


This is why the people arguing that the loser should have to pay the winner's costs as a deterrent against frivolous lawsuits have it completely backwards.


It works as a rule if it only applies if the loser is the plaintiff who brought the case in the first place. That would indeed discourage the filing of frivolous lawsuits. In some cases, it should work the other way, but that should be up to the judge and be based on the circumstances of the case.

Edit: The downside is that it would also prevent poor plaintiffs from suing richer ones. But that is already generally the case. It's probably best to judge on a case by case basis.


You typically cap this by some metric/tables based on the suit's magnitude ("I'm being sued for $50k") and court events (e.g., adjust hourly for "representation" in court based on how much you're sued for, and then just multiply the table value for that suit-value-range with the hours in court, add bonuses for court stuff that didn't require anyone to personally show up (i.e., mail/fax suffices)). That's afaik how it's down in Germany.

Alternatively, you could cap the amount the looser pays to what they themselves payed, devising some sort of scheme to prevent exploits around lawyer-on-retainer/permanently-hired-lawyer on a large-entity's side.


loser* not looser. (I wouldn't normally comment on mistakes like this but this is an increasingly common mistake online)


I don't remember where I read this, but anecdotally, that is exactly why the United States has the cost structure we do as opposed to the rest of the world.


Same thing happened last month with Amazon. AWS decided to roll out a new product called CodeGuru, that was a well established site on Windows development (codeguru.com). That's the end of the road for them.

https://thehftguy.com/2020/08/03/amazon-blatantly-taking-ove...


The difference with CodeGuru is that, AWS didn't sue them, its Google which decided to bury it in the search results in favour of something relatively new and the context of the article seems to be why AWS named their product like that.

So, this doesn't seem like a good advise to me for that context -

>Major lesson here, if you run a major site in the US and did not deposit the name (maybe it grew organically over the years?), now is a good time to do it.

Can AWS trademark CodeGuru now? I don't think it will be able to do so with basic prior art rules as actual MS CodeGuru has supposedly existed for over 20 years dealing with programming but different core purpose than AWS CodeGuru.

So, I don't think the suggestion to trademark our existing product name in fear of a monolith taking it over seems absurd. Trademark/Patents doesn't automatically provide justice, like any other legal affair it's the 'power' to enforce that TM/Patent via a court that counts and the monolith always has more power[1].

What needs to be done here is changes to trademark/patent laws and justice system which doesn't automatically put those without money at disadvantage like the 5 member meal planner company having pear logo just because I think Apple wants to put in their own meal planner app.

[1]https://hitstartup.com/myths-about-patents-and-trademarks-in...


Wow, that's depressing.

Maybe there needs to be some sort of a collective trademark ownership org small projects and sites could go to, which wouldn't sue somebody proactively for i.e naming their GitHub repo similarly, but would come up when legal at these large companies was running the name of their new product past existing trademarks.


Read the article, it's explaining how to lookup trademarks ;)

https://www.uspto.gov/trademarks-application-process/search-...

The trademark codeguru is not deposited by anybody, neither CodeGuru nor Amazon did their homework. Anyway the 20 years of usage should have precedence over just depositing a trademark.


My point was that it probably wasn't deposited by codeguru.com because it costs a decent chunk of money to do so and websites don't necessarily have the resources, but if there was a pooling fund, maybe they would.

You'd still run the risk of Amazon just not looking it up or caring, but the legal grounds would be much more on your side, abet I agree that 20 year precedence should be strong enough in itself.


Does it? I registered a trade mark for my small business. Didn’t require a lawyer and the fee wasn’t more than a few hundred dollars per 5 year period as I recall.


> I registered a trade mark for my small business. Didn’t require a lawyer and the fee wasn’t more than a few hundred dollars per 5 year period.

That's fair. However a few hundred dollars could still be quite a lot. Especially for a small website or an open-source project where this could be basically all their donations.

In codeguru.com's case however, I'd grant you that they probably did have a decent enough income to afford a trademark registration, just maybe not when they started and by now it really wasn't on anyone's mind.


> but would drain us in a legal battle we could never afford

Can someone explain how does that work?


I think the part of the answer is that in the US legal system the discovery process is disproportionately expansive and expensive, being adversarial in nature, as opposed to many civil law countries where the judge tells both parties what documents they will have to produce so that the judge can rule. Here you argue with each other why you both need to review 100k or millions of results of keyword searches. Actually an individual or very small company litigant would be at an advantage not having much in the way of records to search.


I don't think it is as simple as civil vs common law differences. The fact that legal professionals charge so much money for glorified word processing and petty arguing is the problem. Especially given the over supply of legal graduates and ever lower quality of judges you will face.


You as an individual or a small company being built off the savings of an individual cannot afford the myriad of legal fees associated with the process the large corporation is putting you through. It's really not hard to understand how a company with billions in the bank can literally just "war of attrition" you into losing any case, even ones they have no standing to win.


But doesn't the state provide a free lawyer to anyone that needs one?

(if that's not obvious, I'm not from the US btw)


Not for civil cases and in truth even if criminally prosecuted you are only sure to have a body you aren't actually in fact guaranteed competent representation in fact but rather only in law. In America if someone with more money than you disagrees with you and has even a trivial cause of action its entirely plausible they can legally destroy your finances and your life.

Having the most money is pretty much the only thing that matters here.


Not for civil cases. But again for something like this I don't see why you would rather drop the issue and capitulate rather than at least try to fight it out without a lawyer.


To "fight it out without a lawyer" runs the risk of the court resolving the case against you and awarding damages, most pathetically via entry of default judgment if you can't even figure out how to properly file an initial response to the complaint.

Not to mention your own time likely being better spent elsewhere.


Not in civil cases, only criminal


that only applies for criminal cases, not civil


Twitter has lots of money to spend on lawyers; he didn't. (The US does not have a 'loser pays' legal system.)


>The US does not have a 'loser pays' legal system.

Even if it had, you'd still have to manage to stay afloat all the way to the verdict. It wouldn't be hard for powerful entities to let the process drag long enough to sink you in fees, even if you could hope to get it all back eventually.

And that would be a very risky bet too, would you bet a few millions against a, say, 95% chance that you'll get that pear logo or that "scoper" trademark? That's a 5% chance of losing and going bankrupt.

The only solution is for the process itself to be cheaper. The system shouldn't allow big players to bully small ones.


The point is, that Apple/Twitter wouldn't have that incentive to go into a battle with 5% chance of acquiring that trademark and 95% chance of being out a couple million.


Not so sure honestly, because the real equation would be more like "90% chances that the smaller company won't challenge it, 10% that it will even reach a verdict".

After all with the current system if it goes to court Apple/Twitter will probably have to pay a few millions for their own legal fees. Having them reimburse the other party if it goes all the way and they lose will make it even more expensive, but I don't know if it'll be enough to really change their mentality.


We get that.

He’s asking for someone to explain how the legal system allows a big business to force a smaller business to spend money on legal fees.

Also, how do other countries protect the little guy from frivolous lawsuits?


Well, in Germany the solution is the standard rate for lawyers. When you loose a court case, you do have to pay the loosers costs. But only the hours they spent in court or drafting actual legal documents related to the case, no the lunch break where the lawyer bought ice cream.

There is also a limit in discovery, so you can't drag court cases on forever as you want.

So even if you, as a small SMB, get sued by Twitter, and you only bring your off-the-street lawyer and Twitter brings their 12-headed star team of lawyers, you won't pay more than double your lawyer's bill if you loose in terms of legal fees.


I'm thinking of the Mclibel lawsuit. McDonald's couldn't scare their defendants off because they were "men of straw".


The UK is far worse than the US when it comes to libel law: if a big company sues, the burden of proof is on the individual sued to document every statement. In the US, the plaintiff has the burden of proving that the statements were false and damaging.


yeah, but is is much harder for plaintiffs to collect in the UK than in the US. Losing a lawsuit in the UK is not nearly as bad as losing one in the US because the Uk has really crappy asset recovery procedures. The US requires losers to disclose everything under the penalty of perjury.


It might be more difficult to collect, but there is an undue burden on the individual when the court tries to determine the truth of the matter.



Exactly, thanks.


Discovery requests. Quantity of, and postponement of, hearings. Travel expenses. Meetings with your attorney(s) at the cost of several hundred or thousands of dollars per hour. Time and effort required by your staff. Potential injunctions, paralyzing revenue and fundraising while you wait for resolution of the case.


That does not sound like minimal effort. I would say minimal effort means getting the cheapest lawyer you can find and having him comment on quick replies you draft yourself to any requests you get.


Lawyers are expensive. Court cases take a very long time. It doesn't matter if you win the judgment if you run out of money in the process.


Why do I have to pay anything just for getting sued?

The other party should make the case that I infringed on their rights. If I'm sure I'm in the clear, why do I have to move even just my pinky finger? What fees do I have to pay? I don't care about the process, don't want to submit anything. Is there a fee for getting sued?

As far as I understand, the problem in America is that nonaction is often assumed to be an admission of guilt. But "actions" often cost money, or can only be legally performed by lawyers who take insane hourly wages. Crazy system.


Yep! Lawyers basically just look for legal entities with money, and exploit the justice system to take as much of it as they can without bankrupting the source. Constant flow.

They’re like a tax paid by every person or company with a significant sum of money in America. Doesn’t matter if they’re right or wrong, grounds or no grounds, there will still be a team of lawyers on your side taking your money to “defend” you.

Does your lawyer’s $20,000 motion really have any chance of succeeding? Did he really have to pay that company $12,000 to convert all your files to TIFFs? Did he really spend 16 hours on that letter, or does he have 95% of it saved in a template somewhere?

At first you’re happy to have lawyers on your side. But eventually you realize even the ones defending you are in on the same game, and are just there to rob you.

Don’t ever tell anyone you have money or that your company is successful.


This is an extremely bitter take. I'm sorry you apparently have had one or more negative experiences. Speaking as an ex-lawyer who left the profession, there are definitely myriad things wrong with it.

However, your statement is a dangerous one. It's a ludicrous thought to try to run a company of any size/complexity without at least occasional legal support. As expensive as lawyers can be, trying to navigate legal obligations & requirements without counsel can be disastrously more expensive.

As with anything, it comes down to who you hire and for what purpose. With your mention of motions and such it seems you're mostly talking about litigation. Yeah, litigation can be extremely expensive and there are absolutely firms that appear to want to drag out cases to charge more fees. A lot of this is a problem more with our civil legal system here in the US (civil as in civil vs. criminal, not civil vs. common law). Litigation has become nearly pay-to-win -- but a lot of the fault for that can be laid at the feet of megacorps and tort """reform""".

So yes, litigation can be eye-wateringly expensive. But the best way to avoid litigation is to judiciously use the services of legal professionals. This may shock you, but the vast majority of lawyers are in it for nothing more than a 9-5 career and out of the satisfaction of navigating tricky situations, and the vast majority of lawyers in the US make significantly under six figures -- which doesn't go very far when paired with shocking student loan burdens.

So by all means, avoid keeping megafirms on retainer. They certainly have motivations to find work for themselves.

But luckily, there's a fairly good alternative -- in-house counsel. If your lawyer is on your payroll, they have zero incentive to do anything extraneous. Furthermore, you can rely upon them to keep an eye on any additional outside counsel you may need -- to tip you off if they think you're being charged for make-work. If you can't afford the payroll hit of in-house (which does not have to be enormous, we're talking in the 70k - 110k range for a good, experienced counsel), then seek out recs for smaller firms with track records of representing small businesses.

I know this comment has come across as defensive, but trust me, I have nothing to be defensive over. I left the profession for good reasons and have nothing positive to say (and plenty negative) about what we call biglaw. I guess it's just the vestigial shell of a lawyer still living inside of me that cringes whenever I see someone strongly recommending businesses avoid legal representation. It's just asking for disaster.


Just to be clear, none of what I wrote is legal advice and I would never recommend avoiding legal representation. My point wasn’t that you should avoid it, my point was that in America you often don’t have any choice but to retain counsel, even when you know your own counsel are just additional parties to the game of robbing you.

> But luckily, there's a fairly good alternative -- in-house counsel. If your lawyer is on your payroll, they have zero incentive to do anything extraneous.

This sounds like a good way for companies to mitigate the issue of perverse incentives, but how can individuals benefit from this?


The system is arranged to protect companies not individuals.


Based on the legal TV shows I've seen, you can get drowned by motions. If the other side files a motion, you have to respond to it. If they have a large legal team, they can pull more legal manoeuvres than your side can even read, let alone respond to.


If you let the other party make their case unopposed, you are unlikely to get a favorable result.

You can do it, though.


Wow Scoper seems like such a great concept too... What a darn shame...


> Our lawyer let us know that they had no strong grounds against us, but would drain us in a legal battle we could never afford.

s/but would/but that he would/

FTFY


It’s sad to see how much the “justice system” just perpetuates injustice. Nothing like what it does in criminal law but still sucks.


> They gave us a super low amount of money

I'd have taken the money, and then not done anything.


Sad to hear that, this really kills the american dream.


Not the first time Apple has taken action against a company using a pear!

From https://en.wikipedia.org/wiki/Apple_II_series#Clones :

> Another European Apple II clone was the Pearcom Pear II, which was larger as the original as it sported not eight but fourteen expansion slots. It also had a numerical keypad. Pearcom initially used a pear shaped rainbow logo, but stopped after Apple threatened to take legal action.

Here's one of their ads:

https://www.apple2history.org/wp-content/uploads/2020/04/pea...

In that case, the situation was much clearer, though. The product was a clone of an Apple computer, so no question they are in the same market. Also, Pearcom's pear logo had a rainbow color scheme like the Apple logo did.


I remember Pear and to be honest, at the time, in The northern UK and with merchandising practices then, it was a little difficult to know whether to not it was actually a new Apple computer or not.... I was only browsing, but I do recall it appearing very much to be marketed beside Apples as another of the same....


Apricot did quite well.


And Acorn (fruit of the oak tree), Tangerine, Blackberry and of course the Raspberry Pi.


Don't forget the Boysenberry.


Bored, overinflated legal team reaching for anything to do to make themselves feel important. Similar to how UX teams need to redesign everything, including the logo, every few years, even though everything works perfectly and is easy to understand. How do I justify my existence and my job?


And then we end up with flat design and as it is the smallest amount of work, it's where the design gets stuck forever.


Flat has some legs based on visual complexity. Our eyes are great are recognizing shapes. Where things go wrong is everything being flat. I like material design’s use of shadow to communicate depth.

But I agree, some teams take it too far.


This is wrong.

It is hard to fight a legal case against an opponent with infinite money.

Perhaps courts should impose spending caps similarly to some sports leagues.


> It is hard to fight a legal case against an opponent with infinite money.

This also applies to criminal cases filed by government lawyers, who file many more lawsuits, with far harsher results than Apple. If this lawsuit is problematic (and I would agree that it is), government prosecutions are much worse.


Isn't it expected that the government is acting in society's interest though? Whether or not that is the case in reality, bringing up the fact that the government has greater resources than citizens like this feels like it's missing the point, and that the actual problem is in how the government is deciding what cases to prosecute.


It is a problem. The defendant's right to counsel should be the right to counsel that is, at least in theory, equipped with the same tools as the prosecutor. When there are huge power disparities, governments become mobs. See: Aaron Swartz.


There are always huge disparities; a large number (possibly a majority) of people prosecuted by the government are driven to bankrupcy, regardless of the outcome.


If the government can afford a crime lab, expert witnesses and a team of prosecutors then why not the equal amount for public defense? Then they can do a cost-benefit analysis whether it's really worth to indict someone even though they have to pay for their defense. It's essentially the problem of only optimizing to keep false negatives low but ignoring false positives.


This should be mandated for all litigation - both sides must split any funds used in the case equally, otherwise by definition it isn't a fair trial. This is one of many many ways the American justice system is completely corrupt (not singling out US, this is just where I live and what I know)


How on earth could you easily enforce that though? Easy to quietly pay some private investigator or specialist to do some expensive or hard work in evidence gathering or analysis, and then pretend it was easier and cheaper to do than it really was. I agree that on principle it should be a rule though, so yes, absolutely agree.


Yeah people could and would cheat but there are already similar laws about hiding evidence. It would be better, not perfect. Way better.


At least that'd be some extra steps they'd need to take and a little bit risky for them


Honestly this feels like painting a tomb, sure there is a new shiny look but it did nothing for the rotten inside.


Government prosecutors tend to have a very limited interest in any one case. Generally speaking if they put up any kind of fight it’s the defense that’s willing to outspend the prosecution due to the incentives involved.

That said, the overwhelming majority of defendants chose not to defend themselves.


You do have the right to a court appointed attorney for criminal cases, though, right?

I’m not arguing that that is sufficient at all, I’m just ignorant of the basics. My understanding is for criminal cases, you can opt for a free public defender, but not for civil cases. Or am I incorrect?


I do not believe that there is a right to a public defender, though they are often available. There is no corresponding right in civil cases, and the government files many of those as well.


Sixth Amendment provides right to counsel for criminal prosecutions. It's the rare positive right - if you do not have lawyer, or cannot afford one, the state will provide one. (Generally an overworked, underpaid one...)


Random anecdote - I sat as a juror on a felony trial where the defendant was represented by a public defender. Before it started I pictured a bumbling public defender with bags under their eyes from lack of sleep.

I was surprised when the public defender ran circles around the prosecutor. It was actually the prosecutor who I had some sympathy for. She seemed overworked and unprepared.

Albeit it was a big case for the city, so I assume the public defenders office decided it was a case worth winning, but damn, that changed my opinion of public defenders.


Maybe it was a lawyer doing their required pro bono hours (I think large firms require X hours of this kind of public work).


That does happen, but it wasn't in this case. I looked the defense attorney up and he had been with the public defenders office for a few years.

Not claiming all public defenders are that good. Just that I was surprised.


Not for all criminal prosecutions it seems; only felonies: https://en.wikipedia.org/wiki/Right_to_counsel#United_States


This isn't a legal case. It's a trademark application.


The point is it will become one if they try and fight.


Now Apple Inc. is literally com-pear-ing Apples to Pears.

Maybe the offending characteristic of this is the leaf. But really is Apple Inc. seriously complaining that a Pear is similar to an Apple?

Unfortunately, they will still win this legal fight anyway.


Now Apple Inc. is literally com-pear-ing Apples to Pears.

...

Going to need you to get your things and come with me.

But also as another commenter said I think/hope Deadmau5 v Disney comes up in arguments because I agree: this is seriously petty of Apple’s legal team but I’d love to read their actual complaint if anyone finds it (personal pet peeve of mine when outlets report on “someone is taking legal action against someone else” with nothing but a few quotes and statements from someone party to the action. Could we at least see the demand letter?)


There is no lawsuit, this is a trademark opposition. It's an administrative process through USPTO. It works through an administrative court that has some resemblance to a civil suit but the whole thing has a much more standardized procedure. Instead of a complaint letter, there is a notice of opposition that's usually pretty brief.



You're in luck -- the article embeds a copy of the entire (352-page) opposition filing. (Maybe it was added since you read it, as it appears to be an update.)


How, why doesn't a judge throw out apple's case in the first hearing itself. What legal blackmagic can make such a one sided case drag out


It depends whether or not they are sued in a state where SLAPP suits are legal. If Apple isn't forced to provide compelling evidence that they have an actual case up front, they can tie up their opposition in expensive legal battles long enough that it won't matter whether or not they win the case. Their opposition may be victorious legally, but made bankrupt in the process.

Of all the things the U.S. legal system got wrong, I think not following the English rule of attorneys' fees was one of the biggest mistakes. If plaintiffs had to pay for the defendant's legal fees, and vice versa, should the opposing party win their case, large corporations might think twice about making spurious legal claims.


I like the English rules, but how does it work in practice? How do things like in house lawyers work? If I sue a big corp and lose, how do I pay for all their in house lawyers and experts? How do they keep me from backing out simply through the threat of running up the tab with a ton of experts and such?

How much of a chilling effect is there on people suing big corps? Is that less necessary because of better consumer protection?


There is reasonable limits on how much in fees can be recouped.


I don’t know how it works in the UK but there must be some kind of caveat there right? Otherwise it would seem to me that large corporations would pay for expensive lawyers, forcing small people to settle lest they risk having to pay a hefty legal bill.


Yes, correct.


Great question. A competent judge would jettison this with summary judgement on day one.


Well, if deadmau5 can win against Disney, I don't think it's impossible.


It was weird that Disney settled that one, since deadmau5’s branding certainly would make branded products appear to be from Microsoft given that it looks like a cross between Mickey Mouse and the Xbox logo.


Now they just have to go after Orange in the UK ;)


Yes, this is bananas!


I'm genuinely curious as to why Apple is doing this, from a business perspective.

I'm well aware that companies need to defend their trademarks legally, or risk losing them, so in most cases like this the company is just following the law.

But it always relies on a certain level of consumer confusion, e.g. that some demonstrable percent of consumers see the logo/name and genuinely assume it to be associated with the opposing company.

But "Pear" has zero confusion with "Apple", and the logo is likewise completely different.

Companies generally do their best to NOT pay their lawyers to do frivolous things, because there are more important things to be paying their lawyers to do, and companies aren't charities.

So since Apple has no legal necessity to go after Pear here in order to protect their trademark, and they clearly have no business interest in harming a meal planning app since Apple's not in that business...

...what gives? Why is Apple spending money on this? Apple's a business. What's the business incentive?


Even worse. The name isn't even "Pear" - it's "Prepear", which is clearly just some wordplay.

Apple is opposing a company in the food industry using a logo resembling a piece of fruit. It can't get any crazier than this.


So it is a requirement that when you have a trademark, you must defend that mark. Oftentimes they contract a law firm specifically to monitor the trademark. If anything even hints at their mark, they file opposition. Filing opposition is cheap and easy.

How far they go from there depends on how strong their mark is and how strong they feel they have a case to successfully oppose you.

It costs very little to initiate an opposition just a little bit of time and $500. Many trademark filers drop the trademark at this first stage.


Surely there are provisions in or affecting such trademark law such that you cannot overstep bounds of reasonableness, e.g. by going after anything with the colour red just because yours is also red?

(IANAL)


T-Mobile is known for sueing companies who have a magenta/pink logo.

https://www.google.com/url?sa=t&source=web&rct=j&url=https:/...


Colours can be trademarks (at least in Europe).


>So it is a requirement that when you have a trademark //

Could you quote the USC and maybe the principle caselaw on this?

AFAICT it's false.


In the US, it's true

https://www.uspto.gov/sites/default/files/documents/BasicFac...

USPTO is largely a negotiating, registration and notification apparatus. It has no ability to enforce your trademark beyond what you are willing to do. See page 9 of this USPTO document. It is expected that you will do all the legwork to defend and determine your ownership of a trademark.

If you do not, your trademark could be eroded or infringed and left undefended long enough the infringer could potentially file opposition if their use of your mark exceeds your own.


>I'm well aware that companies need to defend their trademarks legally, or risk losing them //

Could you source this. It's a common belief that seems false.

You pay your fees to keep a trademark.

Genericisation is also a risk and that needs some defence.

They're not even using the Apple trademark, so the "defence is required" argument (even if true) doesn't appear relevant.


"In the case of a trademark registration, failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of "non-use"." [1]

[1] https://en.wikipedia.org/wiki/Trademark#Maintaining_rights


Yes but this mark is not Apple’s. Defending a trade mark is preventing people from using it to essentially sell products in your name. Thus, if one of the KIRFs that engadget profiles had an Apple logo, it’s on Apple to sue. But there’s no real requirement to go after things that are remotely similar, it’s just a dick move.

What if John Deere sued Merrill Lynch? Both are using ruminants on their logos. Is it a failure to defend for Deere to not sue? Come on.


Let's say this startup subsequently adds a new line of services / products under another fruit name. Likewise Apple doesn't object because it has zero confusion with Apple. Perhaps they acquire BlackBerry now to add another fruit theme to their lineup. Now they want to add an Apple-themed subbrand as well, and when Apple objects, they have to fight it out because the company is just trying to complete its fruit branding and Apple didn't previously object while it was building out the fruit branding.

Yes, it's a stretch but likely by registering its objecting to the trademark application (with the USPTO granting this trademark anyway), Apple can ensure that down the road there is no risk of the company (or any other company) being able to justify entering Apple's trademark turf.


Though in this case I can't honestly believe these[1] look remotely similar and people will confuse them even if this company is selling electronics.

[1] https://cdn.iphoneincanada.ca/wp-content/uploads/2020/08/pre...


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