Trademark Attorney Morris Turek

Morris E. Turek

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iPhone + iTunes = iNfringement (Part 4)

A few days ago, a good friend of mine brought to my attention an iPhone application that’s getting quite a bit of attention from both iPhone consumers and iPhone application developers alike.  This particular application is a great example of how Apple’s willful negligence in policing the App Store allows for an unethical developer to basically steal valuable intellectual property from another, repackage it, and sell it for huge sums of money, all to the detriment of the rightful intellectual property owner, the thousands of other developers who choose to play by the rules, and the consumers who believe they’re getting something that they’re not.  Although I know some of you are probably sick and tired of hearing me rage against the rampant infringement in the App Store, the unbelievable level of success that this infringing app is currently experiencing was just too fascinating not to bring to your attention.

For those of you who may not know much about the iTunes App Store, Apple continuously ranks the top 50 apps based on the number of copies downloaded within a certain period of time (though I am still unclear as to exactly what that time period is).  Well, as of 11:30 on February 14, 2010 (Happy Valentine’s Day!), the #2 ranked paid application in the App Store is “60 Mario and Friends: Old Games are Back.”  This app is distributed by a company called Isayonline Services and sells for a relatively modest $2.99.  Two screenshots of the application listing in the App Store are shown below:

Of course, the infringing nature of this application is obvious to anyone who’s even remotely familiar with video games.  As you can see, this application developer prominently uses depictions of famous characters from classic Nintendo games in both the application icon and in the application itself.  Furthermore, the app’s title boldly incorporates the name of the iconic chunky Italian plumber that put Nintendo on the map back in the mid-1980’s with its release of the game “Super Mario Bros.” (which was bundled with practically every original Nintendo system ever sold).  Moreover, the app can be found on the App Store in the “games” category, even though if you read the application description carefully, all this app provides is 60 different sounds from these classic games (which is likely a copyright infringement) and not the actual games themselves.  I’m glad to see that even this developer has some boundaries it won’t cross!

I think many of you would be surprised to learn that the developer of Ripin’ Off The Classics is probably making somewhere between $10,000 and $15,000 per day (30% of which goes to Apple as a commission) off an application that is essentially a compilation of non-original and infringing material that likely took a few hours to throw together.  Moreover, it is my understanding that developers get to choose which category of apps (i.e. games, utilities, sports, news, etc.) they want their apps to be listed under.  Contrary to what the title of the app may suggest, “60 Mario and Friends: Old Games are Back” is not a game anymore than a collection of duck calls would be considered a game.  Yet, it’s listed in the “games” section of the App Store.  In fact, if you read the 700 or so reviews and ratings left by purchasers of the app, a substantial portion indicated that they thought they were purchasing the actual games and were quite disappointed when all they got for their $2.99 was 60 stupid sounds that probably could be made for free with a few household utensils.

Needless to say, I find it absolutely incredible that Apple would allow such a blatant and egregious infringement to occur in its App Store.  But, like I’ve written about in the recent past, Apple often displays a flagrant disregard for the intellectual property rights of others.  I do not think it’s an exaggeration to assert that Apple is like the Napster of iPhone applications.  But Apple is even worse than Napster because Apple actually reviews and approves all apps in the App Store and then takes 30% of every application sold.  Even Napster didn’t go that far!  I mean, I understand that Apple is not going to catch every single infringing application that’s submitted to it for its review and I don’t expect it to, but in a case like this where a developer uses well-known and highly recognizable names and characters that would be undoubtedly familiar to the Apple employees who review newly submitted apps, there is no question in my mind that Apple is knowingly and willingly contributing to the infringement and should be held at least partially liable for doing so.

But, to be honest, I don’t really care too much about Nintendo’s intellectual property rights or the rights of any other huge corporation that has the money and resources to go after both Apple and the infringing developers if they really wanted to.  It is inconceivable to me that Nintendo doesn’t know what’s occurring in the App Store.  If it chooses not to put the hammer down, then why should anyone else care?  No, what bothers me is Apple’s arrogant indifference to the frustration and damage its business practices and policies cause to the thousands of application developers who make a conscious decision not to intentionally infringe upon the intellectual property rights of others and to the consumers of iPhone applications who are basically tricked into buying something that isn’t what it appears to be.  In my opinion, if Apple doesn’t change its ways, it is going to alienate the very people it depends on to make the iTunes App Store the gravy train that it is for Apple and will likely find itself defendant in some pretty nasty lawsuits.  If Napster could be shut down for similar behavior, I see absolutely no reason why Apple could not suffer a similar fate.

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