Technically Legal

Technology and the law. Done right.

Apple sues Amazon over usage of “App Store” mark

Bloomberg is reporting that Apple has filed a compliant against Amazon for using “App Store” in the context of the “Amazon Appstore Developer Program,” (as of 10:42 EDT, Amazon still hasn’t taken down the reference) which will apparently be some kind of Android app stor… err, online market for, well, “apps.”

You may recall that we discussed the issues associated with Apple’s application for the “appstore” trademark in some detail on Podcast 92. In sum, Microsoft thinks this mark is generic (and is separately challenging it before the Trademark Trial and Appeal Board).  I think there is a better argument that this mark is merely descriptive, without a strong secondary meaning.  On the other hand, there are only so many ways to describe a online marketplace (a “store”) of software applications (“apps”) without implicating those two words together.  So, it’s quite possible that a judge may hold Apple’s claimed mark to fail both for genericide and descriptiveness.  Either way, it seems like a tough claim for Apple to defend.

Just about every major tech blog and news site is now carrying this story; but, I’ve yet to see the actual compliant.  Once I find that I will post it back here.

3/22 update: Apple v. Amazon compliant added.

1 Comment Posted in: Links on March 21, 2011

Psystar case argued before Ninth Circuit

On Tuesday, November 30, 2010, the Apple v. Psystar case was argued before the 9th Circuit.  Groklaw continued its excellent coverage with another post which includes a link to an audio recording (file hosted by 9th Circuit) of the arguments by Kiwi Camara (on behalf of Psystar) and George Riley (on behalf of Apple).

In case you’ve forgotten, Apple filed this suit against Psystar for copyright infringement and breach of contract (among several other claims) after Psystar began marketing hackintosh PCs with OS X pre-installed on the hardware in 2008.  Apple’s EULA expressly prohibits using OS X  on any non-Apple hardware.

This is one of 3 Psystar cases going on across the nation.  The case at hand was originally filed in the N.D. California District court, another case was filed in the S.D. Florida District court by Psystar against Apple, and Psystar also filed for bankruptcy in the U.S. Bankruptcy court in Florida.  Groklaw has neatly organized documents from all the cases here.

It will be some time before the 9th Circuit issues an opinion on the case.  It’s worth noting that the arguments before the 9th Circuit are limited only to whether the District Court was correct to reject Psystar’s affirmative defense of copyright misuse.   Psystar’s opening brief was filed under seal, but Apple’s answering brief, and a reply from Psystar are available to catch you up on some of the arguments.

Here’s an interesting factoid to chew on while listening to the recording.  According to info on their respective bio pages, Apple’s attorney graduated law school prior to the year Psystar’s attorney was born.  Yikes!

Comments Off Posted in: Links on December 2, 2010

Episode 64: Big, Scary Design Patents!

Apple gets a couple of scary design patents, AT&T thinks wireless is different, and Oracle sues the Java out of Google.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

Apple Design Patents

Article (via TUAW)

Patent #s: D621848, D621849

AT&T on Net Neutrality

AT&T’s Statement

Oracle (d/b/a Sun) Sues Google Over Java (N.D.CA, No. 1418106)

Article (via Tech Crunch)


Ben and David Lu!! are MIA this week.


Comments Off Posted in: Podcast on August 23, 2010

Psystar Files Appeal to Ninth Circuit

According to Groklaw, Psystar has filed their appeal to the Ninth Circuit via mail under seal.

I have to admit, I’m starting to feel a bit lethargic when it comes to the progression of the Apple v. Psystar case(s).   If you’re lost, check out the full docket at Groklaw.  This all relates back to the Psystar’s 2008 sale of non-Apple-labeled computers, fully loaded with Apple’s OS X.  This was brazenly done in (apparent) violation of Apple’s End-User License Agreement (“EULA”) which prohibits third-party installations to non-Apple hardware.  Apple wasn’t as excited as the rest of the technology blogosphere and filed suit in the Northern District of California.

Psystar brought up a number of interesting legal arguments about the enforceability of EULAs, in spite of well established case law contrary to their theories, and took some heavy damage in the District Court.  The result was a partial settlement (for $2.7M), a permanent injunction, and a summary judgment granted in favor of Apple.

Now enters the appeal.  Since the opening brief is filed under seal, we don’t know what they are planning on arguing, and we won’t have any idea if the Ninth Circuit will even hear the case for some period of time.

Hat tips (and belated birthday wishes) go to Groklaw for their extensive coverage on all things Psystar.

Comments Off Posted in: Links on May 18, 2010

iTunes Gift Cards: Where’s my $.30?

On Podcast #5 this week, the Technically Legal crew discussed the recent filing of a case involving iTunes Gift Cards.   Following the show, the three of us continued to debate the merits of the case.  Naturally, this led to some follow up discussion.

To bring you up to speed, here are the basic facts.  Last week, multiple sources (see Ars Technica and Apple Insider) reported the filing of a class action lawsuit in the Southern District of Illinois against Apple for using “bait and switch tactics on their gift cards.”  More specifically, the case in question (Owens et. al v. Apple, Inc.  3:09-cv-00479-WDS-GDW) alleges breach of contract, fraud and misrepresentation under Illinois law.  The claims are based on a statement found on the cardboard insert containing the gift card, which states:

“Download $15 worth of entertainment to enjoy on your Mac or Windows PC.  And, of course, your iPod.  Songs are 99¢ and videos start at $1.99.”

Back in April 2009, the iTunes store shifted their pricing model, which was previously set at 99¢ per song, to a variable pricing model where songs are priced between 69¢ and $1.29.  The Owens, the couple who filed the suit, purchased cards from brick and mortar retailers (Sam’s Club and Walmart) between two relevant time periods:  some before Apple changed it’s pricing scheme and others after it changed.   The first claims asserted by the Owens’ asserts that the statement on the card that “[s]ongs are 99¢” constitutes a legally enforceable contract, or at least a term of a contract. Thus, the cards purchased, but unused prior to the change, constituted a breach of contract at the point when the store changed the prices.  The second part to the breach claim is that even after the pricing changed, the cards were purchased from retailers with the same language on them, even though the pricing model had changed.   Finally, the second claim alleges fraud and misrepresentation in business practices by allowing these statements on the cards.

During the podcast, we hashed out some of the broader legal arguments regarding whether these words could even constitute a contract.  In short, there is some debate over whether the words could create some type of “offer,” as required under contract law, or were merely an advertisement.

Ben went out and took some snapshots of the front and back of the cards today (see here and here).   As you can see, the card still contains the language at issue despite the pricing change.  Interestingly, the complaint left out much of the disclaiming language on the back of the card, which, in relevant part, states,  “[s]ubject to full terms and conditions, see”

After visiting Apple’s Terms and Conditions URL today, Section 11(b) notes that “Prices and availability of any Products are subject to change at any time.”  Another notable provision in the terms and conditions states that “Apple reserves the right to change the terms and conditions of sale at the iTunes Store at any time.”  Interestingly, the terms were last updated on June 16, 2009.  The action was filed last week on June 24th.  We were unable to find any previous versions of the terms and conditions.  The quoted language might reflect the lawsuit, or it could be the case that those terms were always there.

This presents an argument that the contract claims are attenuated since the rear of the card clearly states they are subject to additional terms and conditions.  On a side note, a court might decide that the notice on the back of a card which subjects a purchase to such additional terms at a purchase might not be lawful under contract law since the costumer does not have a chance to read the terms prior to purchase.  However, this argument has popped up a lot in the past with respect to End-User License Agreements (EULA’s) in software, and repeatedly failed.

In any event, it may still be the case that the language on the card is enough to satisfy a claim for misrepresentation or  something along the lines of false advertising.

The three of us debated back and forth as to how the language could be read and came to a few conclusions.  One potential reading is that the phrase “songs are 99¢” does not necessarily mean that all songs are 99¢.  Another enticing reading is obtained when consider the sentence in whole, “[s]ongs are 99¢ videos start at $1.99” (emphasis supplied).  Reading the entire syntax of the statement seems to say that songs are definitively 99¢ and the cheapest videos start at 99¢.  This may impose a stricter reading of the verb “are.”  In other words, why would Apple indicate there is variable pricing for videos but not songs?

In the complaint, the plaintiffs–and the class if certified–have requested a refund of 30¢ per song based on the misleading statements.  Amazing how seven words can draw so much trouble, but precision of language is an extremely important part of the legal world.  We are going to keep our eyes on this case, as there will surely be more to come.

Comments Off Posted in: Analysis, Commentary on June 30, 2009

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