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.
This is a clear failure of our justice system.
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.
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.
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.
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.
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.
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.
The postal service is not private in any way shape or form.
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.
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.
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.
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
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.
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 whenever someone sends you a link to a tweet , tell them... ?
It is also ultimately the profound failure of society.
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.
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.
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?
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.
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... :-)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Can someone explain how does that work?
(if that's not obvious, I'm not from the US btw)
Having the most money is pretty much the only thing that matters here.
Not to mention your own time likely being better spent elsewhere.
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.
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.
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?
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.
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.
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.
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.
> 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?
You can do it, though.
s/but would/but that he would/
I'd have taken the money, and then not done anything.
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:
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.
But I agree, some teams take it too far.
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.
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.
That said, the overwhelming majority of defendants chose not to defend themselves.
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 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.
Not claiming all public defenders are that good. Just that I was surprised.
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.
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?)
Edit: found the prosecution history here https://tsdr.uspto.gov/#caseNumber=87315348&caseType=SERIAL_...
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.
How much of a chilling effect is there on people suing big corps? Is that less necessary because of better consumer protection?
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?
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.
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.
Could you quote the USC and maybe the principle caselaw on this?
AFAICT it's false.
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.
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.
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.
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.