Apple Sues Over iGasm Ads

funkeymonkeyman writes "Apple is less than pleased with an interesting new peripheral for the iPod which promises to 'take your appreciation of music to a whole new level.' Legal action has been taken against Ann Summers, the manufacturers of the new device, specifically for the similarity of the iGasm advertisements to the iconic iPod silhouette ads. The CEO of the adult retail chain replied to the threat cheerily, 'Perhaps I can send them an iGasm to put a smile back on their faces.'"

Comments

Only suing vibrators?

[adona1]

Personally, I'm surprised they haven't started suing the iGoatse...which almost makes me wish I had an iPod ;)

The iGasm is ok, but....

[appleguru]

...the OhMiBod vibrator rocks its socks off ;) I got one for my girlfriend for her birthday this year and I've been seeing less of her ever since. http://www.ohmibod.com/

Don't forget the tv ad

[cbuskirk]

http://adsoftheworld.com/node/10351/play

Re:Don't forget the tv ad

[thehossman]

That's a different ipod vibrator attachment: The Oh mi bod. I wonder why Apple hasn't sued them.

Aaaarrrrrragggg!

[Anonymous Coward]

Don't
Clikc
It !!!!
Youll be sorry

Re:Let me correct the headline for you...

[Anonymous Coward]

since we all know that parodies are violations of trademarks

It isn't a parody. It's a direct rip-off intended to sell a product.

Re:I don't know about you

[Rude Turnip]

How about...i'llgetfiredprobablytomorrowforfollowingaN SFWlinkfarkyouneal

Re:Anybody here try it?

[Tablizer]

Hang on, this is for chicks to use? Man, was I duped...It hurt my bum.

The multisex one is called R-fuss. (Say it over and over if the name ain't click at first.)

Ann Summers

[Animats]

If you haven't spent much time in the UK, you may not realize that Ann Summers is a major retail chain, with hundreds of sex shops. It's like Victoria's Secret in the US, but harder-core.

TM details FWIW

[chub_mackerel]

Some clarity on TM, at least in US...

No, you can't trademark a style.

You can trademark almost anything that creates a connection in a consumer's mind between a product/service and its origin. Historically this has included logos, words, sounds (Harley Davidson's engine noise), images, even colors (Corningware's "pink" insulation), shapes of products (Weber Grill), type of decoration in a restaurant, called "trade dress" (Taco Cabana).

If whenever you see commercials of a certain "style" and you think "Apple/iPod", then the style is likely trademark material. If another company's using the same style to sell a similar/related product (as opposed to engaging in satire or public comment which is more protected) then I'd put my money on the trademark holder.

...You also have to apply for a trademark(unlike copyright where it's automatically a given)...

Wrong again, at least in the US. Most trademark rights come from using the trademark, not from applying for it. The Trademark office register the mark for you, which gives you some considerable procedural advantages (hence there is a process sort of like patent application that you need to go through), but there's no requirement to register your mark in order to have a trademark. All of which is probably beside the point in this instance, since I bet Apple registered something related to whatever they're suing over.

Re:TM details FWIW

[jabuzz]

Perhaps, but Ann Summers is a U.K. firm so US law and practice will have no bearing whatsoever in a U.K. court of law.

Re:TM details FWIW

[chub_mackerel]

Well, or maybe not. After all, the trademark of the product itself isn't being infringed, only the ads are similar, and the ads aren't the product.

Furthermore, the question is not whether the item or ads are "similar", the question is whether buyers are likely to confuse the origin of the products. That's a hard argument for Apple to make. First, the product is in a completely different product category, a category that Apple has never sold anything in. Second, there are many products that are far more confusable with Apple products than this.

You're right that it's easier for Apple to win if iGasm is something that competes directly with iPod. But my understanding is that the touchstone is simply "consumer confusion" in a broader sense. Example: The iGasm is obviously designed to be used WITH the iPod. The commercial looks very much like a commercial for the iPod. It has music and people dancing. In fact the folks in the commercial have iPods as well, along with their dildonics. Since the ad looks so much like Apple's, and it's clearly hawking an iPod accessory, it's not beyond imagining that some people might be asking for these things in Apple stores. That would be direct, and pretty damning evidence of confusion.

Lots of other factors involved, obviously, and I'm not saying who I think is right... just trying to clarify how TM law handles these things.

To others in the thread: I think US law and UK law are relatively comparable on general principles of TM. One recent area of possible divergence is the whole mess of "dilution" law, which we haven't really talked about here.

Re:Wrong

[hearingaid]

Answer, of course - it doesn't apply to ads. Design patents are a completely different and mostly totally useless area of intellectual property law. You want to look at trademark.

Fortunately, Chub Mackerel is mostly correct. You don't actually have to go to court to defend a trademark every time, but it's a good idea. Your lawyer will tell you to, and your lawyer is usually right. But to reiterate - The purpose of trademark law is to avoid consumer confusion. Any form of commercial speech which might confuse the consumer as to whether some commercial entity was involved in some way in the production or distribution or whatever of some product is going to raise trademark issues, as long as the commercial entity in question wasn't actually involved with that product.

Here's the image

[Ed Avis]

iGasm poster that Apple complained about

Re:Darth Vader says "Do Not Want"

[dwater]

> Besides which, it reads "To Go Where No Man Has Gone Before". What happened to the infinitive-splitting "boldly"?- your average nerd *will* complain about such things.

Well, Ann Summers is English, so it's no wonder they corrected it.

> That Ann Summers site is cheesier than a Swiss cheese factory, too.

Again, Ann Summers is English, so Cheddar would be more appropriate, since that is English also.

Re:I don't know about you

[julesh]

Parody has successfully been used as a defence against trademark infringements, also. See this excellent article on the subject. It seems tricky to make the defence work, but it can be done.

Re:I don't know about you

[cenonce]

The ad is not a parody and to suggest that it is simply because it is posted on Slashdot (where everything is "fair use", "prior art" and "parody"!) is nonsense. For a parody defense to work, she needs to be making some kind of commentary about the original product. She is actually advertising her product for use with an iPod! Read a case like Acuff-Rose for parody in copyright. If she is taking Apple's "sillhouette ads" and copying them to advertise her "device", it is copyright infringement, pure and simple. Heck, she could be advertising tires and it would be copyright infringment.

Re:iFuck

[Oktober Sunset]

Mr C does have one bad habit tho, Cyberskin is a mixture of unstable rubber compounds containing a load of Phthalates, it will constantly out gass, chemicaly deteriorate, and absorb liquids.

Mr S would be better. Surgical grade silicone is widely acknowledged as the premier sex toy material.

Copyright, not trademark

[maroberts]

As far as I can tell, Apple is upset over the copying of the advert, not so much the device itself.

A recent UK Court of Appeal case has significantly narrowed the scope of Trademark protection, essentially stating that the public are savvy enough to recognise that the use of the same trademark in two different markets is not "passing off". However, this defense may be slightly scuppered by the ad, which does attempt a form of "passing off" and association.

The main complaint really seems to be blatant copying of the ad, and is therefore a Copyright issue. As others have stated, parody is not (officially) a defense in UK Copyright law, but taking the mickey has long been recognised unofficially. A classic example was the "Made In Wales" series of adverts which was parodied by the "Not the Nine O'Clock News" comedy show. The parody was so good , that it was alleged the Welsh Development Agency showed them to real potential clients alongside the original adverts. Also the term "Fair Use" does exist in UK law, and this may perhaps be construed to include parody.

Re:Anybody here try it?

[Anonymous Coward]

The "innovative" part is that it's music driven, but plain ones have been around for a while. OK, take note, guys:

For most women, the nerves inside the vagina are much less sensitive than the clitoris. This means two things:

1. It usually takes longer for a woman to orgasm with only vaginal stimulation, and
2. After building up for such a long time (an hour or two isn't impossible), those orgasms can be earth shattering, like you don't want to do anything but stare dumbly and drool and maybe cry for a while afterward.

The key is that it's very subtle. It builds and recedes, builds and recedes, until you just can't hold back anymore. This isn't something you'd use for two minutes before bed, but something you'd spend an afternoon with.

Re:I don't know about you

[Anonymous Coward]

The summary said, "an interesting new peripheral for the iPod". I agree with you that the words "sex toy" should have been featured prominently.

Good thing it wasn't really NSFW. Even the advert in question isn't NSFW in my opinion: advert (possibly NSFW)