Apple is reportedly sending email notices to developers of iOS games with the word "memory" in their titles, warning them that unless they change their apps' names, they will be pulled from the App Store. According to a report by Gamasutra, the move comes at the behest of German puzzle and board game maker Ravensburger, which …
A while back, I received a notice that a parody Web page I'd created was (allegedly) infringing on someone's trademark.
Rather than try to fight it, I changed the copy on the page, and then added a disclaimer in the footnotes saying "This page is not affiliated with nor endorsed by (trademark owner's name) and should not be confused with (trademark).
Lo and behold, the number of hits I got on the page went up, not down. People searching for the trademark term still found the page (because it appeared in the disclaimer), and people searching for more generic terms that weren't the trademarked term also found the page (because I'd revised the body copy).
Funny how trademark takedown requests can backfire like that.
Everyone on here rips on the admittedly stupid US patent and copyright system (will be eternal copyright soon so Mickey Mouse can never go into the public domain) but it looks like Germany can be just as silly about it. Also how silly is it that we no longer allow even words to be communal. Somebody has to own everything or the world will end.
And yes I know trademarks have been around a long time but memory? Seriously? Lame.
Here's another common English word: monopoly
Fancy your chances of selling an app for a board game of that name? Even if it didn't involve making circuits of a board with squares representing purchasable properties?
Remember that trademarks have scopes - the same name can be used in two separate categories, with the categories being (in part) intended to avoid conflicts and confusion. So Ravensburger registered "memory" in class 28 (board games) - this doesn't prevent you marketing "ASDF memory foam" under class 1 (chemicals). However what's rather messier is that Ravensburger also got it under class 9 (electrical and scientific apparatus) which is a huge category including "data processing equipment and computers". Seemingly there's no provision for software to be subdivided by purpose (industrial, control, game, etc) so naming collision will happen more often.
This is one of many examples of regulatory frameworks limping behind technical/economic shifts - see also the Dewey Decimal System: 70 major numbers assigned for books on Christianity, 5 for all aspects computer science, and just 1 (applied physics) covers most things one thinks as "technology".
Thing is you can't trade mark a word like memory in the US. It's to generic. MS tried with just windows and lost.
So... I can market a game called 'Monopoly' in the US? After all, it's a common word...
Re: MS tried with just windows and lost.
Seems pretty plain to me:
Trademarking a common noun
I think it is very wrong to trademark a common noun that is used everyday by a significant fraction of the population in its rightful meaning.
I reckon "memory", "history" and "geography" are fair game in the US, then.
The trade mark is Milton Bradley Monopoly. You can not trade mark a single word in the dictionary in the US.
Re: MS tried with just windows and lost.
As early as 2002, a court rejected Microsoft's claims, stating that Microsoft had used the term "windows" to describe graphical user interfaces before the product, Windows, was ever released, and the windowing technique had already been implemented by Xerox and Apple many years before. Microsoft kept seeking retrial, but in February 2004, a judge rejected two of Microsoft's central claims. The judge denied Microsoft's request for a preliminary injunction and raised "serious questions" about Microsoft's trademark. Microsoft feared a court may define "Windows" as generic and result in the loss of its status as a trademark.
> The trade mark is Milton Bradley Monopoly. You can not trade mark a single word
You appear very sure of this, however the USPTO system has this entry:
Word Mark MONOPOLY
Goods and Services IC 028. US 022. G & S: [ BOARD GAME PLAYED WITH MOVABLE PIECES ] * EQUIPMENT COMPRISING A BOARD AND MOVABLE PIECES FOR USE IN PLAYING A REAL ESTATE TRADING GAME *. FIRST USE: 19350320. FIRST USE IN COMMERCE: 19350320
Mark Drawing Code (1) TYPED DRAWING
Serial Number 71363230
Filing Date March 30, 1935
Current Basis 1A
Original Filing Basis 1A
Change In Registration CHANGE IN REGISTRATION HAS OCCURRED
Registration Number 0326723
Registration Date July 30, 1935
Owner (REGISTRANT) PARKER BROTHERS, INC. CORPORATION MAINE 190 BRIDGE STREET SALEM MASSACHUSETTS
(LAST LISTED OWNER) HASBRO, INC. CORPORATION RHODE ISLAND 1027 NEWPORT AVENUE PAWTUCKET RHODE ISLAND 02862
Assignment Recorded ASSIGNMENT RECORDED
Attorney of Record PAUL N. VANASSE
Type of Mark TRADEMARK
Affidavit Text SECT 12C. SECT 15. SECTION 8(10-YR) 20060418.
Renewal 4TH RENEWAL 20060418
Live/Dead Indicator LIVE
And the USPTO advice on applying for trademarks (http://www.uspto.gov/trademarks/basics/BasicFacts.pdf) starts with the definition "A trademark is generally a word, phrase, symbol, or design, or a combination thereof" and goes on to give examples of single word trademarks, including common English-language ones.
So I'm not yet convinced that "memory" could not be trademarked on these specific grounds - perhaps you can add some more info?
> Microsoft feared a court may define "Windows" as generic
Exactly - and this was the potential problem with their trademark. Not that it was just one word or in the dictionary, but that the judge directed the jury: "consider whether the Windows mark was generic [before Windows 1.0 entered the marketplace in 1985]". Such a ruling would effectively destroy the granted trademark since as the USPTO expresses it "Generic words are the weakest types of 'marks' (and cannot even qualify as 'marks' in the legal sense) and are never registrable or enforceable against third parties."
Re: > Microsoft feared a court may define "Windows" as generic
Of course now that Windows no longer features the display elements known as windows (having switch to tiles and fullscreen apps) the trademark should be safe again.
The analogy with iPodRip isn't very good
Confusion for consumers in that case seemed a little far-fetched, being a verb affixed to the well-known trademark to describe what the product does for the owner of an iPod. I imagine few would have thought it was Apple's own product, though some might assume it was licensed by them.
Ravensburger's "memory" has been around for years with various card sets and as phone apps. The actual idea is of course utterly unoriginal but the trademark seems clear enough and competitors skirt it by calling their games things like "Memo", so the public is well enough acquainted with the both the Ravensburger product and alternatives under different names. So seeking to enforce this state of affairs in the app stores is not unreasonable behaviour.
A simple "Feck off" should have sufficed
Not sure we can really blame Apple
IANAL, but wouldn't the developers themselves have to fight Ravensburger, as Apple aren't 'infringing'?
I do think it's stupid you can trademark a single everyday word. All you have to do is stick an 'i' in front, then trademark it. Can't see anyone having a problem with that...
> it's stupid you can trademark a single everyday word
And here lies the glorious clusterfuck of a polyglot world with diverse legal systems and a single internet! Because of course "memory" is NOT an everyday word where Ravensburger first registered it, in Germany - it's borrowed from English, doubtless for the "coolness". It would have been a lot less likely that they got a trademark on "Gedächtnis" in Germany, but that would probably fly through in the USA (especially with an umlaut: proper heavy metal stuff). Notably of the countries they hold the trademark in only one (India) is English-language: Armenia, Austria, Bosnia and Herzegovina, Belarus, Belgium, Brazil, Croatia, Czech Republic, Denmark, Egypt, Equador, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, India, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Montenegro, Netherlands, Norway, Peru, Poland, Portugal, Russian Federation, Serbia, Slovakia, Slovenia, South Korea, Spain, Switzerland, Turkey, Ukraine and Venezuela
So how does this give them the power to rip "memory" from my freedom-loving UK hands? It doesn't directly - all they can do is demand that the app store doesn't infringe where they do hold the trademark. Unfortunately Apple didn't provide for an app to be listed by different names in different countries so all a developer can do is either rename it globally or pull it from the 28 countries where they do have the trademark.
This global-name scheme is an unfortunate limitation of Apple's model and should have been seen coming - remember Google fighting long and hard for "gmail" in Germany but ultimately losing in the face of prior good-faith use: http://www.theregister.co.uk/2008/06/24/no_access_to_gmail_in_germany/
Re: Not sure we can really blame Apple
> wouldn't the developers themselves have to fight Ravensburger, as Apple aren't 'infringing'?
IANAL either but the way Apple operates (as an "umbrella" for the app "ecosystem", given that they are the gatekeeper) makes them liable as far as common sense is involved. They do claim that their licenses extend to app developpers. That is not unreasonnable, and it is part of the justification for the 30% tax on sales. As stated in the article, Apple also agressively attacks everything that is too close from their own trademarks*. You can't have it both ways. Besides, that's actually a good thing for independant developpers, for once. I say let's keep it that way.
* including the completely unrelated "iPoop" shovel, remember.
Re: > it's stupid you can trademark a single everyday word
The problem is there are many a$$holes out there that would just copy your name and pass themselves off as you if they thought they could get away with it.
It's probably a good job that you're not a lawyer because it doesn't make them liable as far as common sense is involved.
Apple's model is that of a monopolised shop, similar to the one Amazon operates for the Kindle, neither of them make a rights-grab for copyright or trademarks of the things they sell through that shop, because that would be a sure-fire way of having nothing to sell.
The Lodsys case (which is what I presume you are referring to with your claim that Apple is over-stretching its licensing agreements) concerns a patent that Apple licensed to use in their OS as part of the standard API. Having licensed it to Apple (and Google amongst others), Lodsys then went on to try and claim monies from any developer who called that API.
This wasn't a case of Apple claiming their license extended to app developers, it was a case of a patent troll trying to make some extra money by trying to claim that it didn't. Lodsys targeted developers of many platforms, but if you never read beyond the Apple-biased click-bait headlines, then I guess you wouldn't know that.
In the end Lodsys backed down because it turned out that they didn't actually have a case under first-sale doctrine.
'memory' should be careful about making infringement claims.
That picture of one of their games shows that it consists largely of pictures displayed on squares with rounded corners, arranged in a grid pattern. Only a matter of time before Apple's lawyers spot the resemblance to the iOS home screen...
Since when is English the official language of Germany. You Brits had dubs on 'memory' first.
England, England über alles!
Disney has spent a lot of money making sure copyright becomes forever; a company that built it self animating other peoples stories.
Unfortunately, this story has nothing to do with copyright. It's about trademarks which are a distinct and quite different form of monopoly on expression.
I don't blame them
Erinnerungsvermögen does seem a bit more cumbersome. I guess that's why schadenfreude was abandoned as a trademark in the US back in 2007. Oh well, I'm off to see if "Feck this" is available.
Is that a game of soldiers?
>Disney has spent a lot of money making sure copyright becomes forever; a company that built it self animating other peoples stories.
Unfortunately, this story has nothing to do with copyright. It's about trademarks which are a distinct and quite different form of monopoly on expression.<
Since when did comments on El Reg have to be about the story? Disney are the evil monolithic company destroying the concept of copyright, this fact should be noted as often as possible, where ever possible.
As the owner of both the Trade Mark and Copy Right usages for the letters "a", "e", " i", "o" and "u", I would strongly suggest you all stop using them before I sue you.
You may be overlooking former DOS filename users, who can effortlessly pronounce eight letter words containing no vowels.
It's the fluorescent one with "Trdmrks Ptrl" on the back.
I've trademarked all the consonants so lets see you sue me without using them.
Re: Yea well
All consonants? Sound like the Welsh language edition of Countdown...
We'll be round later to collect the money and leave a sheep's head on your pillow.
Sets a bad precedent
So if want to search for a money manager type of app and someone has patented the word 'money' then it makes my life all the more difficult. Or how about the many maths apps for kids, drop the word 'math' and again it just makes it so much less obvious.
Change Memory to Mammary.
I'm going to trademark the word "the".
pfft. im trademarking the word trademark.
The band "The The" might have something to say about that.
Is it only me that sees...
a grid of icons in squares with rounded corners?
Re: Is it only me that sees...
Rounded corners? But Apple owns the TM on that
Release the hounds
Someone sells a board game of pairs? What kind of idiot would actually pay money for that rather than just finding a pack of cards?
Yes, that would be silly. But it seems their real market is nifty picture cards for small children, for whom playing cards are boringly abstract. My eldest loves their vehicles one (the pair is between the vehicle and what it does, eg a crane and a load being slung across a building site) - the hours of doing this gave me plenty of time to mull about "memory" as a trademark too...
I was wondering whether you had any pirate memory games
suitable for children between the ages of 4 and 8.
Re: I was wondering whether you had any pirate memory games
we don't seem to have any - let me ask my wife
Margret, MARGRET - do we have any pirate memory games?
Re: I was wondering whether you had any pirate memory games
Yes - if you are an android user
I was going to trademark 'Amnesia'
But forgot all about it.
Not in the UK and probably not the US
In the UK, and possibly the USA as well, trademarks cannot be "descriptive". (Otherwise, nobody else would be allowed to sell a similar product called by the obvious name.) See "Subbuteo" .....