Trademark Attorney Morris Turek

Morris E. Turek

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iPhone + iTunes = iNfringement (Part 3)

First off, I would like to thank all of you who have left me public and private comments regarding my postings of the past couple of weeks concerning trademark issues in the iTunes App Store.  I have really enjoyed investigating and writing about these issues and hope that my ramblings have been helpful and thought-provoking.  But, due to the fact that app developers have been losing business and getting kicked out of the App Store in droves as a result of my postings, and in the interest of promoting economic growth through consumption of apps by hopelessly confused consumers, this will be the third and final part of my series.

As a recap, two weeks ago I discussed the questionable and risky practice adopted by some iPhone app developers of incorporating famous trademarks into the titles of their applications or in the icons associated with their applications.  Then, in last week’s post, I talked about the legal issues and ethics of using famous trademarks as “behind the scenes” keywords to increase the visibility of apps that are entirely unrelated to the keywords.  Now, in the final part of my series, I am going take a look at when using a trademark may be an acceptable and defensible business practice.

I commenced my investigation with a search of the extremely famous “NBA” trademark.  The search revealed dozens of apps, some of which are actually sponsored by or affiliated with the National Basketball Association.  One app that caught my eye is titled “Pro Basketball Live,” a screenshot of which is shown below:

As you can see, this app was created by iApp Ventures, LLC.  This developer did not use “NBA” in the title of the application, although it did use the trademark in the description of its application and, undoubtedly, as a “behind the scenes” keyword.  This application basically provides news and information about the National Basketball Association.

I then conducted a search of the trademark “CNN” and, again, dozens of apps were returned in the search results, including one called “Easy News”:

Again, this app was not created by CNN and the trademark does not appear in the title, although it can be found in the description and most likely in the keyword list.  According to the description, this app gives one touch access to “20 news sites,” one of which is the CNN website.

Next, I performed a search of the trademark “PlayStation,” which is a well-known video game console sold by Sony.  The search revealed the following app called “Cheat Codes”:

This app was developed by Prima Games and is a collection of cheat codes for games released on all of the major video game systems, including the PlayStation.  Because the “PlayStation” trademark does not appear in the title of the app or in its description, I would bet my bottom dollar that the trademark is used as a keyword by Prima Games.

Finally, I typed in the phrase “Papa Johns,” which, if you’ve been living under a rock for the past decade, is a pizza delivery chain that operates across the United States (except perhaps in New York City where such “pizza” would be scoffed at by the locals who know what real pizza is).  An app titled “LocationFox – Pizza Parlors” came up in the search results and is depicted below:

This app assists users in locating pizza restaurants, including Papa Johns.  The developer does not use the trademark in the title of its application, but does include it in the description and probably as a keyword as well.

So, I’m sure that all of you see how these trademark usages are different from those explored in my previous two posts.  In these cases, the content, purpose, or function of the apps are directly related to the trademarks selected.  They are not being prominently incorporated into the names of the apps (which can cause substantial consumer confusion), nor are they being used in connection with apps that have no relation whatsoever to the keyword (such as Slug Bug, GW Monkey, and the others discussed in Part 2 of this series).  Instead, these app developers are using trademarks in what I would consider a descriptive sense to inform consumers about the nature of their apps.  Of course, although I would consider such use to be a “fair use,” it’s always possible that owners of famous trademarks may believe otherwise and attempt to put the kibosh on such use.  All the more reason to consult with a trademark attorney before using a trademark that isn’t yours.

Well, that’s all I have to say about the App Store.  Time to go download an infringing app or two.

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