Swiss Railway: Apple's Using Its Clock Design Without Permission

An anonymous reader writes "Apple received a lot of criticism during the Apple/Samsung litigation this past Summer as folks deemed it absurd that Apple was able to patent things such as icon design and the overall form factor of a smartphone. Well as it turns out, it appears that Apple has engaged in some copying of its own in the form of the new clock icon design used in iOS 6 on the iPad- a rather ironic turn of events given that Apple railed against Samsung for copying its own iOS icons. Specifically, the clock icon in iOS 6 on the iPad is a blatant copy of a Hans Hilfiker design to which both the trademark and copyright is owned by the Swiss Federal Railways service."

Comments

Re:so i can't make a clock with no numbers?

[AK Marc]

That argument rings as hollow as those in AZ insisting that the immigration laws don't target Mexicans. Technically true on paper, but practice is a whole different matter.

Meh

[cpt kangarooski]

I can't comment on Swiss copyright, trademark, or patent law. But in the US, I'm not sure that I see the problem.

The clock's visual appearance is almost, if not entirely, uncopyrightable in the US. The only thing about the face and hands that might be creative and original (i.e. not copied from a previous source) would be the proportion of the hour marks to the minute marks, and the circle at the end of the second hand. The color choices, lack of numerals, and overall aesthetic are pretty common among timekeeping devices. The proportion of the marks -- given that they're frequently made distinct from each other -- is also probably not going to be protected standing alone (also n.b. that the proportions are not quite the same -- Apple's minute marks are thinner and taller than the Swiss counterparts).

This basically leaves the circle at the end of the second hand. Not the coloration either, as second hands are commonly red. Honestly, I'd lean toward it being de minimis.

Plus, as a graphic work, only the parts of the clock that do not have utility as a timekeeping device can be copyrighted, per copyright's utility doctrine. A court would have to separate the useful from non-useful elements of the Swiss clock to see what's left that could be copyrighted. Where this is not possible, the inseparable elements are treated as uncopyrightable. For such a starkly utilitarian design, this is going to knock out virtually everything again. The circle might be left -- unless there's some reason that it has to be that shape -- but with so little objectionable copying left, I'd still lean toward de minimis copying.

Apparently the clock was designed in the 1940s, so there would not be any patents left on it, although a design patent is usually what you'd want to protect something like this.

And as for trademarks, well, I doubt that a Swiss railway clock has a strong trademark in the US. Apple might end up having to redo the app for Switzerland or other parts of Europe, but I'd be surprised to learn that there would be any consumer confusion here, and I certainly can't see dilution for lack of fame. Plus trademarks also have a utility doctrine.

Remember: outright copying is not inherently bad. For things in the public domain, it is encouraged. And almost all -- if not, as I suspect, entirely all -- of this clock is in the public domain in the US. Apple will have to decide how they want to handle this elsewhere, and whether it's worth it to have different versions, or license it, or what. But from here in the states, I really don't see anything interesting here.

Re:so i can't make a clock with no numbers?

[Calos]

Well; perhaps I was a little too caustic in my response. I think I understand your reaction better now - you were responding as though the second poster was making a statement of fact.

I think you over-reacted. "Troll" implies intent. You admit in your own post that a little-reported aspect of the case is that the rounded-corners bit was not upheld in the case (and I'm only taking you at your word here as I truly do not know), and yet you seem to assume that the poster knows this and is trying to mislead and deceive. Seems an odd jump on your part to both claim that few people know this aspect of the case, but assume this person does. Then in your second post you seem to imply that the error was understandable. Understandable, yet troll? I think you calling them a troll was what triggered my response.

That said - I don't think whether that person knew it or not actually matters - because I don't think that was the point they were trying to make. As you said:
>> but since apple lost that point I suspect that the Swiss will as well ...this is perhaps exactly what the second poster was getting at.

Even if not, at the very least - in my reading, I figured the first post was not to be taken at face-value, that the meaning was something cynical towards design-related patents. The second post, to me, follows along the same lines - by bringing up another design-related patent, exerted offensively, and found to be frivolous. Disagree with them if you will, and there are very valid reasons to do so - the comparison is weak, for one - but when decrying frivolous design-related patents, the rounded corners thing is very pertinent; perhaps moreso *because* the court agreed they are frivolous. And while I can't say that attacking someone for bringing it up means you seek to absolve Apple, it certainly seemed to me like you meant to defend Apple - and I think it would not have seemed that way but for your second sentence.