News

Apple Spanks Site Over iPhone Interface Hacks

Monday, January 15th, 2007 at 11:10 AM - by

Imitation may be the sincerest form of flattery, but Apple Inc. doesn't always see it that way. After Paul O'Brien made reference to a smartphone interface skin that simulates the look of the iPhone on his MoDaCo Web site, Apple sent him a letter telling him to remove the screenshot and link, according to ITPro.

The letter from O'Melveny & Meyers LLP on behalf of Apple stated "We represent Apple Computer, Inc. ("Apple") and are authorized to act on Apple's behalf to investigate and take legal action with respect to the unauthorized dissemination of Apple's copyrighted material. It has come to our attention that you have posted a screenshot of Apple's new iPhone and links that facilitate the installation of that screenshot on a Pocket PC device."

It continues "While we appreciate your interest in the iPhone, the icons and screenshot displayed on your website are copyrighted by Apple, and copyright law explicitly prohibits unauthorized display and distribution of copyrighted works."

Mr. O'Brien complied with Apple's request, and subsequently aired his frustration on his personal blog. "I'm as interested and excited about the iPhone as anyone... I've probably helped pay the lawyers by purchasing 2 30GB iPod Videos recently and i've even pondered buying a MacBook Pro. My level of respect for them has gone downhill somewhat. My message to Apple - 'make love not war' ;-)"

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Tiger said:

member since 17 Jun 2003 with 1011 posts, unranked, send him a message or view his profile

Mon Jan 15, 2007 1:01 pm

Sounds like it is a bit of going into a room where you're not wanted. It shouldn't come as a surpise. Everytime this has happened Apple has squashed any attempt to infringe on its interface and look. Yet people keep making the same mistake again and again. It's like teasing a pit bull.

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Dirt Road said:

member since 24 Oct 2002 with 1239 posts, unranked, send him a message or view his profile

Mon Jan 15, 2007 6:22 pm

It's not like Apple can ignore the issue once it's brought to their attention — isn't it an "enforce it or lose it" kind of proposition?

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Bosco said:

member since 03 Jun 2002 with 1001 posts, unranked, send him a message or view his profile

Mon Jan 15, 2007 6:55 pm

No Dirt, copyright is not "enforce it or lose it". You are confusing copyright with trademark, which is. Honestly, I don't know why anyone will even want to put an Apple phone skin on their current phone, except to tell Apple to screw itself at this point. There are better ways to protect IP than this silly exercise. Black eye for Apple.

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Jonkun227 said:

member since 02 Mar 2004 with 238 posts, unranked, send him a message or view his profile

Tue Jan 16, 2007 5:02 am

Major black eye for Apple.

Apple: "Introducing the iPhone!"

Cisco: "Wait! We own that trademark! You can't use it!"

Apple: "You can't use our copyrighted images!"

I understand that copyright and trademark are not the same. But the concept of rights violations is.

Sorry, Apple. You can't have it both ways. You have to hold yourself to the same standard (or, ideally, a higher one) than you hold others to, or people really won't like you.

- Jon

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Tiger said:

member since 17 Jun 2003 with 1011 posts, unranked, send him a message or view his profile

Tue Jan 16, 2007 2:09 pm

That's assuming Cisco actually still has the rights. That has now come into serious question.

Apple has always rigorously defended its trademarks, looks, etc. Nothing new on that front.

They could of course just buy Cisco and be done with the lawsuit.

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A guest said: (hide)

Tue Jan 16, 2007 3:35 pm

Tiger wrote:
That's assuming Cisco actually still has the rights. That has now come into serious question.

They could of course just buy Cisco and be done with the lawsuit.

That's a joke right? Cisco still has much firmer footing than does Apple in this case. More over, Cisco has more than double the market valuation of Apple. Even if Apple owned every share of its stock, they still wouldn't be able to afford a majority stake in Cisco.

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LaurieF said:

member since 15 Jun 2001 with 3545 posts, TMO Forum Mod, send him a message or view his profile

Tue Jan 16, 2007 4:25 pm

Yeah, it was a joke. It was, wasn't it?

But whether Cisco actually still has the rights is moot.

Macscoop wrote:
A recent report on ZNet blogs revealed that Cisco could have lost its rights on the "iPhone" trademark it had registered in 2000. According to the law, a trademark registered by a company may go back public if the company in question doesn't use it for the next five years after it has registered it.

Cisco only released products using the "iPhone" brand last month, which is way too late. Moreover, it appears that, back in May 2006, the company had provided "fake" documents to the trademarks office, showing a fictitious product box with the "iPhone" trademark printed on a stick. The controversal filing "proving" that Cisco was using the "iPhone" trademark was provided to the trademarks office just days before deadline.

As for Apple, it has reportedly created a company called Ocean Telecom Services LLC with the purpose of obtaining the "iPhone" trademark either through registration at the trademarks office or through an agreement with Cisco. Apple did never confirm or provided comments regarding the claims related to Ocean Telecom.
Additionally, Apple got the rights to iphone.org back in December 1999.

As for jokes, when I get mine (2008, apparently), I'll put only reggae and dub on it and call it the I an' iPhone.

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A guest said: (hide)

Tue Jan 16, 2007 6:09 pm

Here's a better analysis of that same point.

If Apple can argue that Cisco failed to defend the trademark until it launched the new iPhones in 2006, it could possibly convince a judge that Cisco abandoned the trademark, Stanton said. Cisco has said that it used the iPhone trademark on VoIP phones sold in early 2006, and maintains that is has actively defended its trademark. "We have taken all actions necessary to satisfy all elements to prove the validity of our trademark under trademark law," a Cisco spokesman said.

However, settlement is the most likely outcome of this dispute, given the burden of proof on Apple needed to overcome Cisco's trademark registration, the lawyers said. "Even big companies get legal fatigue," Radack said.

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gslusher said:

member since 13 Nov 2002 with 2088 posts, unranked, send him a message or view his profile

Wed Jan 17, 2007 8:47 am

Guest wrote:
Here's a better analysis of that same point.

If Apple can argue that Cisco failed to defend the trademark until it launched the new iPhones in 2006, it could possibly convince a judge that Cisco abandoned the trademark, Stanton said. Cisco has said that it used the iPhone trademark on VoIP phones sold in early 2006, and maintains that is has actively defended its trademark. "We have taken all actions necessary to satisfy all elements to prove the validity of our trademark under trademark law," a Cisco spokesman said.

However, settlement is the most likely outcome of this dispute, given the burden of proof on Apple needed to overcome Cisco's trademark registration, the lawyers said. "Even big companies get legal fatigue," Radack said.

There are other complications. (Aren't there always?) Two companies in the US use the iPhone name for services or products. (There are others in Canada and the UK, but the Cisco trademark only applies in the US.)

Comwave has a service it calls "iPhone," but it also applies the name to the hardware that is used for the service.

Teledex makes a VOIP device and system for hotels. (It looks like a pretty neat device. It has a 5.6" touchscreen, so the hotel can offer visual information on the phone.) The press release for the VOIP iPhone is dated October 24, 2005. There is an earlier press release, dated June 21, 2005, that announced the analog iPhone. I also found that Teledex applied for the iPhone trademark on March 7, 2005. (Go to the Patent and Trademark Office page for trademarks and click on "Search" in the right column. Links to search results don't work.)

It turns out that the Cisco trademark was registered on November 16, 1999--not 2000. Cisco's Linksys division announced their iPhone on December 18, 2006, so they were more than seven years from the registration date to the release of the product.

The applicable law is 15 USC 1058, "Duration." If I deciphered the legalese correctly, it appears that, while a trademark normally has a duration of 10 years (and can be renewed), the government can cancel the trademark registration after *6* years (not 5) if it has not been used. The registrant has to file an affidavit during the year before the end of the 6 year term. However, they can have a 6-month "grace period" by paying an additional fee. That's where the May, 2006 date came from:

November 16, 1999 + 6 years = November 16, 2005 (normal deadline)

November 16, 2005 + 6 months = May 16, 2006 (with grace period)

Here is a good explanation by an attorney.

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A guest said: (hide)

Wed Jan 17, 2007 11:44 am

Nice link, looks like according to all that, Cisco is in still holding all the chips.

"[T]he USPTO gives you an extra six months grace period, if you pay an extra fee. This grace period would have expired 5/16/2006. Cisco filed a Declaration of Use on 5/4/2006 which kept their registration active."

What Apple has to do is try to argue this point ...

"It is possible that the Declaration of Use is defective, as there was no continuous use, and the sample that Cisco submitted was for a product not released until 7 months later."

Again, the burden of proof is all on Apple's shoulders, not Cisco's. Hence the previous analysis which said this is likely to end in a settlement. Cisco has the trademark and filed a Declaration of Use within the proper time limits. It's a very high bar for Apple to clear. Even assuming that the Declaration of Use is defective, that STILL does not put Apple in the clear.

"Without the registration, Cisco and Apple would still have a trademark dispute to resolve, but Cisco will have a harder time proving that it has valid trademark rights."

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A guest said: (hide)

Fri Jan 19, 2007 12:37 pm

Nice link, looks like according to all that, Cisco is in still holding all the chips.

If Apple can argue that Cisco failed to defend the trademark until it launched the new iPhones in 2006, it could possibly convince a judge that Cisco abandoned the trademark, Stanton said. Cisco has said that it used the iPhone trademark on VoIP phones sold in early 2006, and maintains that is has actively defended its trademark. "We have taken all actions necessary to satisfy all elements to prove the validity of our trademark under trademark law," a Cisco spokesman said.

However, settlement is the most likely outcome of this dispute, given the burden of proof on Apple needed to overcome Cisco's trademark registration, the lawyers said. "Even big companies get legal fatigue," Radack said.

Now some quotes from your link...

"[T]he USPTO gives you an extra six months grace period, if you pay an extra fee. This grace period would have expired 5/16/2006. Cisco filed a Declaration of Use on 5/4/2006 which kept their registration active."

What Apple has to do is try to argue this point ...

"It is possible that the Declaration of Use is defective, as there was no continuous use, and the sample that Cisco submitted was for a product not released until 7 months later."

Again, the burden of proof is all on Apple's shoulders, not Cisco's. Hence the previous analysis which said this is likely to end in a settlement. Cisco has the trademark and filed a Declaration of Use within the proper time limits. It's a very high bar for Apple to clear. Even assuming that the Declaration of Use is defective, that STILL does not put Apple in the clear.

"Without the registration, Cisco and Apple would still have a trademark dispute to resolve, but Cisco will have a harder time proving that it has valid trademark rights."

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gslusher said:

member since 13 Nov 2002 with 2088 posts, unranked, send him a message or view his profile

Fri Jan 19, 2007 4:59 pm

Anonymous wrote:
Nice link, looks like according to all that, Cisco is in still holding all the chips. ...

Again, the burden of proof is all on Apple's shoulders, not Cisco's. Hence the previous analysis which said this is likely to end in a settlement. Cisco has the trademark and filed a Declaration of Use within the proper time limits. It's a very high bar for Apple to clear. Even assuming that the Declaration of Use is defective, that STILL does not put Apple in the clear.

"Without the registration, Cisco and Apple would still have a trademark dispute to resolve, but Cisco will have a harder time proving that it has valid trademark rights."

Perhaps you can help clear this up. Are you an attorney experienced in trademark issues? We do seem to have a lot of attorneys here, as folks make definitive, absolute statements like, "the burden of proof is all on Apple's shoulders." What about if the USPTO asks Cisco to prove that its Declaration was not defective? I don't know as I am NOT an attorney.

Also, I noted the attorney in the link says, "Cisco will have a harder time proving that it has valid trademark rights." (Emphasis mine.) Doesn't the complainant have some burden of proof in a civil lawsuit?

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A guest said: (hide)

Sat Jan 20, 2007 1:00 am

Cisco doesn't have to prove its declaration was not defective, the declaration is on file and was already accepted by the USPTO. Apple needs to prove that the declaration was defective. That's what is meant by the burden of proof being on Apple's shoulders.

Cisco does not have to show that its trademark is valid, that's what the documents already do. Cisco needs to show that Apple's use of the term iPhone is infringing upon that trademark. Apple is the one must either show, a) that its use of iPhone is not an infringment upon Cisco's rights as the holder of that trademark (just as it was not an infringment upon the shoe company's trademark when Apple used iMac), or b) that Cisco's trademark which is on record and up-to-date is not valid (they can try do that by arguing the declaration was defective).

Am I an attorney? No, not yet. Give me 6 months and ask me that again though.

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A guest said: (hide)

Sun Jan 21, 2007 4:49 pm

wait, what? they went after the report? this guy said, hey look, someone is making themes based on the apple look and apple went after him? not the guys who actually did it, but the guy who just spread the news? what, did they miss? talk about going after the wrong guy.

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gslusher said:

member since 13 Nov 2002 with 2088 posts, unranked, send him a message or view his profile

Sun Jan 21, 2007 5:59 pm

Anonymous wrote:
wait, what? they went after the report? this guy said, hey look, someone is making themes based on the apple look and apple went after him? not the guys who actually did it, but the guy who just spread the news? what, did they miss? talk about going after the wrong guy.

Check further. As I understand copyrights (I'm not an attorney), distributing an "illegal" (for want of a better term) copy could be an infringement, just as creating that illegal copy could be. Our to-be-attorney guest could certainly expand on or correct that.

Some years ago, I was active in the Apple/Mac forums on CompuServe. ("Some" started in 1985, but this was in the early '90s, as I recall.) One of the forums had several libraries of sounds, usually very short, mostly in the System 7 format. (Those could be used for system alerts, for example.) Included were a lot of short clips from Star Trek which an experienced attorney on the staff of the forums (I was also on the staff for a while) had determined were well within the then-current fair use guidelines. (One criterion was length--under 30 seconds or something like that.) They were not for commercial use. However, Paramount, the owners of the Star Trek name and copyrights, wrote a "cease and desist" letter to the forum owner--NOT to the people who had recorded and uploaded the files. The letter threatened legal action if the files were not immediately removed. The forum owner had little choice, as he could not afford to fight Paramount, even though his attorney believed that the files fit fair use and that the forum owner might well prevail in a suit. In the months or year after that, Paramount allegedly went through AOL, CompuServe, and other online systems, looking for ANY mention of the name "Star Trek" and other words associated with the series (e.g., Spock, Romulan, Klingon). Letters went to many forums, bulletin boards, etc., even in cases where "Star Trek" was mentioned in a message discussing the series.

For a more recent example, consider the RIAA suits and actions against people who DOWNLOADED pirated copies of songs, even if they did not upload them. (To be fair, if they were using something like Napster, they were also uploading, whether or not they understood that.) It didn't matter that the people had not created the copies.

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A guest said: (hide)

Mon Jan 22, 2007 12:27 pm

But, these guys weren't doing any of that. They went after the guy who reported the news, not the guy's who took the content and made the themes. Not the guy's who were distributing the themes. Okay, maybe you can make a case for the screenshot, in that it included an image which contained the protected images. But do they issue cease & desist to all websites that include screenshots of Apple systems? This is all very different then acquiring content illegally (like your P2P example for music, even though Napster is no longer an illegal channel and is a totally different application and service than it was in the late 90s, even completely different owners). It's like going after the NYTimes because they had a picture of a guy stealing a painting, and calling that an illegal distribution of that painting.

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A guest said: (hide)

Wed Apr 11, 2007 12:05 pm

Apple attacks a site that writes a news report about people who have made hacks for the pocket pc that look like the iPhone, lot of good that did.

http://rychlicki.net/en/2007/04/01/174/

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A guest said: (hide)

Thu Apr 12, 2007 10:00 am

awesome! thanks for the link, windows mobile is so versitile it's great that you can install all these different apps and configure the phone as you like it.

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