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Apple Orders Memory Game Developers To Stop Using 'Memory' In Names
An anonymous reader writes with this bit of trademark absurdity from geek.com: "Ravensburger is a German gaming company that specializes in jigsaw puzzles, but has also expanded into other areas such as children's books and games. The company owns the trademark to a board game called 'Memory' and has demanded Apple stop offering apps that have the word 'memory' in their title or as a keyword associated with an app. It may seem ludicrous such a common word can be trademarked, but apparently this is a valid claim as Apple is now serving notices to app developers. The choice an infringing app developer has is to either rename their app or remove it from the App Store."
Yes, your garden looks very nice at first glance. But I'll stay out here, thanks.
Sometimes a central authority is a good thing. But no-fucking-body is telling me what software I can or can't download, or banning me from downloading certain titles over some stupid shit like this. And this is just a mild example of what they *could* do if they wanted.
What political party do you join when you don't like Bible-thumpers *or* hippies?
The Memory Game
That classic game of remembering is back in this awesome new iPhone app!
Apple: Please remove 'memory' from the title of your game or we will remove your game for you!
The Memorie Game
The Anglo-Normans are challenging your ability to remember in this awesome new iPhone app!
Apple: Don't be a smartass, you know what we mean. Please remove 'memorie' from the title of your game or we will remove your game for you!
The Memoria Game
Which cards had Marcus Aurelius beneath them and which cards had Marcus Annius Verus under them?! This classic challenging Latin game of remembering cards is in this awesome new iPhone app!
Apple: Goddamnit. Okay, no Latin root words of Memoria, okay? You'll be sued, we'll be sued, they own everything related to mem- and as preemptive warning, no 'mnemonic' shit either, okay? It's all owned by someone else!
The Apple Can Go Fuck Itself Game
Which company is making Apple its Intellectual Property bitch today? Try to find out in this classic game of "wait, what card was that again?"
Apple: Approved.
My work here is dung.
You couldn't even be bothered to RTFS, could you? This is about a legal claim against Apple, it has nothing to do with them operating a walled garden (though I agree this is a bad thing).
Foreign words are valid trademarks in all countries I've bothered to check, so that doesn't surprise me, at least for an international store like Apple's. Also, you *can* trademark a word to refer to this particular game. Nobody says you can't make a game that has you flip pictures and match them up as you remember where which one is. You just can't call it just 'Memory'. Come up with your own name, and you're golden. But of course then you can't mooch off their popularity by having people who look for 'Memory' find you, you need to do your own marketing.
Wonder if the word 'THE' is trademarked. If not, let the race begin.
Using your recollection, the ability to hold in your mind certain facts, figures or concepts is a part of your consciousness. Recall is important, as is retention and awareness. Our app will help you to stop it with all the forgetfulness. Buy it today so you can remember tomorrow.
See, it's easy to avoid using a certain word.
Yes, I understand that Apple didn't CHOOSE to do this (in this case anyway). It's the fact that they CAN that bothers me.
What political party do you join when you don't like Bible-thumpers *or* hippies?
Didn't someone do the same thing with the word "razor" a few years ago?
Actually, this is about them operating a walled garden! The developer doesn't even get to decide whether to challenge the claim in court. He complies or gets kicked out (with that app).
Companies do not own words because they used them first. It's one thing to outright steal the name of a product. It's another thing to claim you own every word in that product's name.
Couldn't a Dictionary making company claim Prior Art?
and...
How is this any different then Apple stealing the name Apple from the Music label Apple?
Life takes interesting turns, but the most interest is when you're off the beaten path.
Exactly this. This has nothing to do with a walled garden. This exact same copyright claim could (and probably will) be brought against the Amazon, Android, Microsoft, etc. stores which have the same type of infringing apps.
Or instead of calling it "Memory", call it "Concentration Camp". Defeat the detainment camp guards at a game of Concentration to earn your freedom.
Blame the company enforcing their trademark.
Yeah, because "Apple" isn't another ludicrously common word that is trademarked.
enjoy your garden.
Two of my imaginary friends reproduced once
A trade mark is infringing if it would confuse the customer in thinking they'd bought one thing and actually gotten another product.
In this case: no foul.
1. Apple isn't banning the apps, they're telling the developers they have to rename them.
2. This isn't some arbitrary decision by Apple (unlike some other cases), this is because another company owns the trademark to "memory" in the context of games and is threatening to sue Apple if they don't comply with the order to have the apps' names changed.
If you can't convince them, convict them.
What makes you think Ravensburger isn't going to send almost the same notice to the legal departments of Google Play and Amazon Appstore tomorrow?
Because Google hasn't done something similar? They've removed apps for trademark and copyright claims. They've even ordered Microsoft to remove apps from the Windows Phone app store over trademarks to Youtube. But, hey, let's ignore that because we are Google fans.
Does this apply to all apps or just games? If it's just games then the claim may be indeed be legitimate (or not), but if it's all apps then it's certainly a case of overreaching by the trademark holder (or else an overreaction by Apple).
The most ridiculous element is the ban on the use of "memory" as a keyword. Trademark law was never intended to forbid others from naming competitors' products or from using trademarked words in their descriptive sense ("this game will enhance your memory and give you super-strength!").
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Do you know how many small developers this might impact? Each app may have hundreds or thousands of dollars in advertising, name brand awareness, web site names, artwork... etc. Apple should use its billions of dollars to squash this ridiculous claim. Its a word in a dictionary, not a proprietary trademark. This is Apple being a pussy.
Apple now has to comply with all IP notices as they are the champions of the game. Soon they will discover that is not possible.
You couldn't trademark a word of the English language, in and of itself - it would't hold up in US courts. You trademark a logo, an artistically stylized version of the word. The mere word itself is off limits to IP hucksters. Then again, I guess I doubt anyone else could come up with a new game and call it, "Monopoly" (how fitting) or "Sorry", or "Uno", or whatever.. so .. I dunno.. well, IANAL after all.
Look back up at my post, now look back down, you're on the Internet. Now look back up. I'm a signature.
CLARITIN is a trademark of Schering, an MSD company. The generic term is Loratadine. What's the generic term for games using the same rules as MEMORY by Ravensburger?
I was under the impression that at least in some major markets, the description (not the title) was allowed to say "Compare to Memory by Ravensburger", just as makers of generic APAP preparations were allowed to say "Compare to Tylenol by McNeil".
Well, the developer (ANY developer, mind you) can get sued for trademark infringement, so even your "open access" rules can get curtailed. Yes, if you make a "memory" game, expect to receive some cease-and-desist soon, regardless if it's walled, garden, open-source, whatever.
And Apple has so far let users keep their "removed" apps. I think even iCloud keeps a copy if you happen to not have a backed up copy.
Nope, it's nothing to do with a walled garden (which actually doesn't affect users so much as developers since removed apps still can be used by existing uesrs). This affects *ALL* developers.
This exact same copyright claim ...
No copyright claim is being made. This is about a trademark.
Copyrights, trademarks, and patents are three different things . How can we ever expect politicians to fix our IP system, when even many geeks seem incapable of understanding even the absolute basics?
Come on, Apple. This claim is bullshit. Stand up for the developers who make your App Store and ecosystem a success.
Fucking cowardice.
Karma: Excellent Birds (mostly as a result of listening to Laurie Anderson)
While I remember the old memory game(vaguely), I wonder if the suit being brought in Germany was somewhat 'court shopping'? After all, the IOS market is global, not just German, and depending on the laws, 'Memory' might be too vague in many countries to be a valid trademark on it's own.
I mean, what about a game called 'The Memories of Lars Fibbonachi'? Would that be in violation? 'In Memory of X?', etc...
I don't read AC A human right
Patent law defines "not novel", or anticipated by the prior art, as a reason for rejecting a patent application. Trademarks are not patents, as you point out, but that doesn't necessarily mean that trademark law lacks anything remotely corresponding to "not novel" inventions. Instead, a mark can be "merely descriptive".
First off: Apple is only having people remove the apps in countries where the copyright is valid. Remember - U.S. public domain is not valid everywhere. I believe that copyright law is largely made of feces just as much as the next programmer, but this is not surprising.
Secondly: The article makes no mention of whether or not Apple is removing apps which use the word "Memory" outside of the context of the puzzle game for which Ravensburger holds the copyright. At least in U.S. copyright law, context and usage play important parts.
This would be a useful place to practice skeptical thinking. Why is Gamasutra writing this article? Why did they leave out these details? I would wager that the answer to these questions is, "To stir up shit."
Because Google hasn't done something similar? They've removed apps for trademark and copyright claims. But, hey, let's ignore that because we are Google fans.
Ok. And that stops me from installing those apps on Android... how, exactly?
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
And it's the fact they can that's what's the problem with the walled garden. If i'm a private company selling an app to you directly I can tell Ravensburger to go fuck themselves and if they want their trademark torn up they're welcome to take me to court. If i'm a developer selling through Apple or another walled garden, then who the hell am I supposed to appeal to? I could sue Ravensburger for damages, but in the mean time what do I do?
A board game named 'Memory' is a specific piece of IP.
Which means, no one but the group that owns the rights to the IP of aforementioned board game is allowed, legally, to create a memory based board game and name it 'Memory.'
It does not mean that group owns all instances of the word memory.
It does not mean that group owns all instances of memory based board games.
This is simple, basic stuff.
WTF, Apple Legal? You're good enough at what you do to get a judgement against one of your competitors/suppliers for using goddamn rounded corners, but not good enough to point out something that's obvious to most 4th graders?
An enigma, wrapped in a riddle, shrouded in bacon and cheese
It does have to do with a walled garden. A company can make a possibly frivilous complaint againt the garden owner who can then kick you out, and you have no recourse. If it was not a walled garden and you could sell your app independently, the claimant would have to go after you directly, and you would have the opportunity to legally defend yourself.
Go green: turn off your refrigerator.
In the US, Hasbro holds the trademark for "Memory" as applied to card matching games. So what happens if Hasbro decides to develop a "Memory" app for the iTunes store? (They already have one for Simon.) Who would Apple decide should win that battle?
The EU is doomed to a steady slide into bureaucratic sludge, making it uncompetitive and irrelevant. Great for the U.S., where innovation still thrives (despite Nathan Myhrvold's defense of patent trolling and other intellectual property extorts).
You do realize that plenty of "dictionary" words are trademarked, right? Apple, Windows, Subway, Amazon, Android, Fire. I could go on and on.
A similar thing happened a few years ago with apps that displayed photos with white borders that were thicker along one edge. Apparently Polaroid have a design patent on that and complained to Apple. End result: apps can be rejected/removed from the App Store if they display a photo with a white border that is thicker along one side.
Bogtha Bogtha Bogtha
It's no different than download.com or tucows removing a program after receiving an infringement notice.
These anti-Apple clowns popping up every time Apple is mentioned is getting so old.
You appeal to the courts if you think their claim is spurious and if you win you resubmit your app. The procedure for fighting the claim is no different than if you weren't selling through someone's store and you were threatened with a lawsuit over a trademark claim against your product.
Do you know how many small developers this might impact?
Around 300.
Isn't there something about trademarks and common words not being eligible? Microsoft *almost* lost their Lindows case in a big way because of that. Anyone remember this case? Lindows was being sued by Microsoft, and Lindows was putting forth the argument that Microsoft is not entitled to the name "Windows" as a trademark. Microsoft paid Lindows to change their name and to dropped the case entirely.
That said, Apple is not a court. They are a company which is exposed to legal action by the holder of the trademark "Memory." Rather than take on that challenge for the greater good (something which I am sure Google would do) Apple has decided in favor of avoiding additional legal problems. It is their right to do so.
So, what should these small apps people do? Well, turns out, there is very little they can do. They can (a) license the use of the name Memory for their game (not something I imagine would be profitabe or even allowed) or (b) file a pre-emptive suit for the right to use the name or possibly (c) file a re-examination request with the trademark offices to see if it can get revoked. Of these, I would push in favor of (c) but even then, if successful, unless it were a big news story, Apple would likely ignore your assertion that "they no longer have the rights to that name, so please allow my app into your store."
A company can make a possibly frivilous complaint againt the garden owner who can then kick you out, and you have no recourse.
Sure you do. You gonto the courts and countersue them just like you would have otherwise.
I have a feeling Thesaurus.com is going to get many requests for the word Memoey real soon.
Off the top of my head, some alternatives to Memory....
cognizance
memorization
recognition
recollection
retention
Also this trademark is at least 30 years old. And it propably only applies to borad games. Propably only card games. If it has been registered abroad(as in not in Germany) is not known to me.
If we want to compile a list of trademarks for common words we could start with:
A is for Apple
and work our way across the alphabet until we reach
M is for Monopoly
make our way up to
W is for Windows
I will leave it as an exercise for the reader to fill in the gaps. But I guess you get my meaning.
So while Apple(not the round fruit thing but the rounded corners for fruits) is propably well in their rights not to carry them they also deserve every bit of stink they get.
20 minutes into the future
If it were the other way around, do you think Apple would hesitate one second to the identical claim?
And sure Apple has the money to buy laws. Good that money is the deciding factor for you, not who is right or wrong.
Don't fight for your country, if your country does not fight for you.
Ravensburger's US licensee would win. And that happens to be Hasbro.
First published in today's form by Ravensburger in February 1959.. There are hundreds of different Memory games - starting with 24 cards for the youngest.. The most famous publisher is Ravensburger - they have the rights for the brand name Memory - and they have really nice ones.
I still feel that banning the use of "memory" in a keyword is ridiculous.
If I win I resubmit my app? Is that a serious response. What do I do in the mean time while i'm losing profit. The difference between your solution and a sane one is that in a sane world you're not automatically guilty and get to defend yourself in court before action is taken against you. The procedure may be the same (sort of), but the timing here is what matters.
As a kind of mass protest AND humor enhancer.
Please do not read this sig. Thank you.
Trademarks are fsckd. They need to be registered in every country separately and the need to defend them(usually with lawyers) makes them just as unpleasant to deal with as copyrights and patents. But at least they are easy to look up. For every fschking country under the sun.
Ravensburger has to act like this if they want to keep their trademark. Wich obviously is quite valuable.
The solution to this problem is to intensify our SETI search since there is evidently no intelligent life on earth. Bomb it from orbit. It's the only way to be sure.
20 minutes into the future
I've stayed away from the Apple garden all my life and this may be a stupid question but....
What about programs that show how much memory is being used on the device? Would they be forced to stop, or is that one type of app that apple doesn't allow int he garden since it already has something that shows how much memory is being used?
I'm posting as AC since I don't want anyone to know how ignorant I am on Apple things.
In fairness, it would be difficult for Apple to object to this kind of trademark enforcement, had they the desire to do so, given how staunchly they defend their claim to the letter "i".
The whole deal with trademarks is you HAVE to defend them. They can take you to court and you will lose, as long as they have a history of defending the trademark. Try branding your cooking app American Pumpkin Pie Lover Estate and see what happens to you.
I'm aging rapidly, I bought a new game and had no idea if my machine was good for it.
At least Android has the "Unknown Sources" checkbox. Sure, google could block apps from their store... but theirs is not the only store on Android, and the apk packages can be downloaded from just about anywhere, no app store truely needed.
Of course, if you play out in the big wide ocean (download apps from anywhere), you're more likely to drown than if you stick to the roped off lifeguard watched section (the app stores like Google Play, Amazon App Store, etc).
Well, the developer (ANY developer, mind you) can get sued for trademark infringement, so even your "open access" rules can get curtailed.
This much is true...
Yes, if you make a "memory" game, expect to receive some cease-and-desist soon, regardless if it's walled, garden, open-source, whatever.
And Apple has so far let users keep their "removed" apps. I think even iCloud keeps a copy if you happen to not have a backed up copy.
Nope, it's nothing to do with a walled garden (which actually doesn't affect users so much as developers since removed apps still can be used by existing uesrs). This affects *ALL* developers.
... but you're missing an important point. The significance of the "walled garden" reference is this: if I am a developer of an application that uses the word "memory" in its title or as a keyword, but in a non-infringing way (and it's hard to imagine that every single possible use of the word "memory" infringes the trademark), then outside a walled garden, I have options: I may choose to capitulate to avoid a lawsuit, or I can choose to take my chances with the legal system and continue using the term (and, if I can get a good lawyer, I may well win). But Apple is not giving developers that choice - they can either remove the term "memory", or remove the app entirely.
I suspect that Ravensburger have taken action to protect their trademark, and are only likely concerned about apps that are similar to / might be confused with their product - and Apple are indeed probably liable if they are selling infringing products. But, rather than vet individual apps based on whether they infringe or not (which is time-consuming and error-prone), Apple have taken a decision to impose a blanket ban on the term - which, while I see the practical benefits from their point of view, is clearly detrimental to, say, people searching for an application to check what DIMMs might be compatible with some hardware they need to upgrade...
Need to type accents and special characters in Windows? Use FrKeys
Further, board games are physical objects and not software
Board games are routinely converted to software, like this one or this one.
and all of those can be used in the name of a game
I agree with the concerns that Apple is getting Big Brotherish, but, to me this looks like a case of Apple getting used as much as anyone else. If someone else owns a Copyright then Apple is required to enforce it. So complaints should be focused on Ravensburger and the German IP laws.
A company can make a possibly frivilous complaint againt the garden owner who can then kick you out, and you have no recourse.
Sure you do. You gonto the courts and countersue them just like you would have otherwise.
Then, when you win, Apple still rejects your resubmitted app because they're not required to accept it and it's less trouble for them to reject the app than it is to check that you won your court case.
Is apple going to remove DRAM (memory) from their iPhones?
Or the description in the Settings that shows how much - gasp - memory you have!
Jeezus, I couldn't go another ten minutes without another Apple article. Keep 'em coming. I want to know the very next time the Jobs' family dog barfs after eating a dead bird.
Yes, but I very much doubt they have a history of defending the word "memory" in a product that does not compete with them, say... a "free memory" tool. If I had a game called memory, they might have a case. There are lots of other factors to consider depending on what your case might be. I am not a lawyer but I do have enough experience with trademark law to win a case, and i'm 99.9% sure that in this particular case, Ravensburger wouldn't stand a chance.
I plan to trademark "a", "an", and "the", so either stop using these words or be prepared to pay ten cents per usage (except for the NYTimes, which will be one dollar per usage). Thanks in advance.
Circle the wagons and fire inward. Entropy increases without bounds.
You make some interesting and cool (read: unique) boardgames, and now you have to go pull this crap. What the hell.
If you have to do it, just have it only apply to apps that are categorized as Games.
Do you think the German company won't go after Android apps? Side loading doesn't mean anything when someone shuts the developer down.
Apple has filed suit against Bob's Produce, ordering them to stop selling apples in general and macintosh apples specifically.
Any insufficiently advanced magic is indistinguishable from technology.
But Apple promised you a walled garden.
We are among the developers who have had to change a memory game on the app store due to this widespread trademark infringement claim.
Generics only apply to trademark law in the USA. We were bitter about the change - the use of the phrase "memory game" -isn't- trademarked AFAIK, and it seems trite to look at a single word embedded within a much longer title.
Anyhow, our feeling was that this entire fiasco will probably backfire with bad press. We really wanted to change the game only in those territories which are trademarked, but that's not so easy with the current App store model.
For your information, here are the territories at issue:
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.
We are based in the UK and it made no difference to the takedown notice.
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The article doesn't make this clear, so does Ravensburger own the trademark in the USA or just in Germany? If it's the latter, then it would seem to me their complaint would only hold validity within Germany, and they could be told what to do with themselves everywhere else.
IANAL, but my understanding of trademark law in the US is that you can only trademark common words if they are unique to your business. For example, Apple, Inc. could trademark "Apple" in the computer business, because the word is unique in that business, but Kroger could not trademark the word "apple" in selling produce.
It seems to me that this would be a rather clear case of the latter, and Ravensburger would have no grounds for their complaint in the US, assuming they hold a trademark here.
There is a memory game called; Memory. By Jasper De Keijzer. It works the way you'd expect.
And it's only a violation if you compete in the same field or there would be a potential for confusion. Nobody is going to confuse a "Memory" game with a "free memory" app, for example. I would think there are hundreds, if not thousands of apps in the app store that nobody would reasonably confuse with the (famous?) "Memory(tm)" game. I just checked in the app store. Take for example "battery memory system status monitor" would be affected. Would anybody ever confuse that with the "Memory(tm)" game, whatever that is?
i still dont think you read the article or summary. youre statements still have nothing to do with article.
The guy who said the election was rigged won the presidency with the second-most votes.
As ridiculous as this is, the more they push this stupidity upon others, the more they push they're own system towards destruction. Then, we may re-write.
The big issue is not that Apple can impose this, bur rather that the app developers can't distribute to iOS independently of the app store's limitations. It's either do, or die. Or Cydia, but that's a smaller market.
This whole article could be better summed up as "Some shit happened and we're just going to remind you that iOS is locked into its app store."
/* No Comment */
Which doesn't change the fact that this could happen so easily only because the other company only had to squeeze one throat to get a shutdown for *all* apps.
A company named Apple who sues the shit out of everyone who dares to use an image or name of a common fruit in anything is getting told they can't have a common name in their app store.
bhah hah hah hah.
The preceding post was not a Slashvertisement.
Trademark, indeed.
I understand how German guilt has been used to proscribe against holocaust denial, but legal proscriptions against the commercial use of a term that describes a fundamental operation of the mind is ludicrous and reveals that ridiculousness of law in this regard. Certainly the phrase, "memory game" has been in use long before some novice attorney applied for the trademark.
Tune in next time when an Israeli company applies for a trademark on the word, "Irony." Will the World Court grant them exclusive use of the Irony(tm) Shield?
Perhaps someone should apply for a trademark on the word, "Torture."
Commenting to this post in English will result in legal action.
I haven't thought of anything clever to put here, but then again most of you haven't either.
Then let them do that and give developers a chance to defend themselves in court.
"It's harder for me to commit a crime so I don't like it" is the argument here. What's happening is there's a trademark claim, and people are being made to comply. It's no different than if you marketed an app called "Photoshop Pro" and Adobe shit all over your party, except people are so used to the concept of Tetris and, in this case, Memory that they find it bizarre and offensive that somebody actually owns these things. Somebody invented it, but all people see is that they can't remember when it was novel, so it must be free.
Trademark law is really strange. If you don't protect your trademark, you lose it. If Ravensberger makes an iOS app for the game of Memory, everyone searching for it will get all these clones, superior or inferior, by the same name. They'll play those and ignore Ravensberger's Memory. The market is then unmarketable. Thus Ravensberger has a strong desire to protect their trademark to Memory, since if they lose it and another market opens up and they want to capitalize on it then they can't because they can't defend their trademark because it has become generic. Thus they must petition to stop these things from using their trademark.
This is the same reason that Adobe doesn't like when someone claims they "used GIMP to photoshop" something: you did NOT photoshop that, Photoshop was not involved, stop saying these untrue things, you are creating brand confusion. It's fair game to say something is "like Photoshop," but not that it IS Photoshop or has been adjusted via Photoshop if Photoshop was not involved.
But all people want to see is, "Hey, how can you do that?" and they use weird arguments like "You' can't just trademark a generic word!" UPS has a trademark on the color Brown; both American Express and IBM have trademarks on the color Blue. Thing is UPS only has a trademark on using the color brown as a major marketing identifier for a shipping company: you cannot make a brown DHL, it has to be yellow or something. If FedEx reimaged to primarily earth tones, UPS would have a valid suit against them. If Chicago Suits took up the color brown as their major marketing factor--brown slacks, brown shoes, brown jackets, business and business casual wear--UPS has absolutely no standing to sue them because they're not a god damn shipping company and the trademark on Brown doesn't apply. Ravenberger has a trademark on a board game called Memory, and if you make a Memory toothbrush that doesn't reference the board game in any way then you're not infringing on their trade.
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And then you sue the original claimant for actual damages, illustrating that the first suit was about an injunction and damages done accumulating and this new suit is about your inability to conduct further business because of damaged reputation and business viability loss as a direct result of their actions.
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Ravensburger is a German company, so any English word is considered to be sufficiently exotic to be trademarked.
Remember that when the USA pushes next time for harmonization and enforcement of trademark laws in other countries.
Hey don't blame me, IANAB
and all of those can be used in the name of a game
But not in their trademarked context.
You just try launching your own smartphone OS called "Android" and see what happens.
The funny thing is: what's a more common word than 'Memory?' How about 'Apple?'
does not mean the claim is valid.
The Kruger Dunning explains most post on
The problem is they're using Apple as extrajudicial lever against developers, leaving devs with no legal recourse.
Imagine Apple/Googlorola threatening to directly sue BestBuy because they're selling Galaxy Tab/Xbox - before and instead of suing Samsung/Microsoft (and BestBuy folding it instead of telling them to fuck off and go sue the makers).
I searched "memory" both for Apple and Google: in the first few pages of results, everygame that had "memory" in the title was a Memory/Pairs/Concentration clone. They have to be worried about trademark dilution.
Removing the non-game apps with "memory" in the title is a bit overboard, as is the ban on search keywords, but I don't see a problem with requiring designers to use a bit of imagination in their titles.
PINoM - "Pairs is not Memory" or YACC - "Yet Another Concentration Clone" spring to mind.
Correct. Google lacks the capacity to do this, because they don't sell any computers that are locked into their repository. They could be as evil or crazy with their store as they wanted to (and it sounds like you might have found some examples) and it wouldn't matter because Google's store is irrelevant. The software market can route around any malfunctions of Google's store, and Google doesn't even try to prevent that. Apple, OTOH, sells crippled computers and actively tries to make it so that if their store has a problem like this one, it will matter to users.
What's happening is there's a trademark claim, and people are being made to comply.
Can you link to the court order?
I didn't think so. And that is the issue here. Not that is is unjust or irrational, but that Apple is playing judge, jury and executioner.
What about Monopoly? Perfectly fine english word that predates the popular board game. Trying making another game with the same name, even if it doesn't resemble the original in any way. You'll probably get sued. Also, I'm sure that 75% of these "Memory" games are probably clones of the original memory game.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
Except in this case it's Ravensburger who doesn't allow the name to be used.
As Apple isn't the legal authority responsible for deciding the validity of trademark claims, the fact that Apple has chosen to act in this way has absolutely no value whatsoever as evidence that the trademark claim at issue is valid against the applications these notices are directed against. At best, it might show that Apple thinks that the risk of the claim be valid in at least one case in some jurisdiction, and the cost that they might incur if they continued (via the App Store) to sell an infringing product somewhere outweighs the cost they expect will result from the disruption they cause app developers by taking the vigorous approach they are taking in regards to the claim.
This could be true, in part, because they think that they won't actually experience any cost, since the effected developers will just rename the apps and continue to sell them, and if any do drop off there any lost App Store sales, just sales that go to different games instead. With a near zero expected cost of responding the way they have to avoid any legal action, the perceived likelihood of the validity of the legal claim doesn't have to be high at all.
The funny thing is that Apple could use their walled garden as a deterrent to this type of overreaching claim. All they'd have to do is send a notice to all developers in the app store that, in response to a trademark claim, they won't accept apps with the word memory in the name. Sent to everyone, including Ravensburger.
It's Apple's walled garden and Ravensburger can, perhaps, force them to ban other apps using the word, but they cannot force Apple to allow them to use the word. Making an example of Ravensburger would deter other trademark holders from making this kind of claim since they'd know that, in doing so, they'd likely be forced to change the name of their own app.
Nope.
You don't need to root an Android in order to side load apps.
You can also install alternate app stores.
It's that whole "open systems" thing.
A Pirate and a Puritan look the same on a balance sheet.
And if the company exercising their trademark case against you gets a cease and desist order forcing you to stop selling the product, you'll have the same problem: you cannot legally continue to sell the product until the case is over or the order is vacated. The only difference here is that you're banking on the company either not noticing the infringement and not going after you, or them not getting a C&D to force you to stop selling. If I've learned anything, it's that the companies that are assholes enough to do this are also assholes enough to not care how small you are.
Please change all memory management and related utilities to refer to RAM ... until it is flagged ... then you can use uncastrated adult male sheep ... oh wait adult and word containing castrate are already flagged ... and you can't have an app name with manager to avoid confusion with official apple utilities ... so it looks like it will eventually be named:
Boss @#%@#$ #$%#$ male sheep
but don't worry, your customers will think nothing of its apparent offensive content, because we have an active campaign to explain to them how they are too ignorant to think for themselves and how educating themselves is actually a complete waste of time.
Mod parent up!
2. This isn't some arbitrary decision by Apple (unlike some other cases), this is because another company owns the trademark to "memory" in the context of games and is threatening to sue Apple if they don't comply with the order to have the apps' names changed.
But the only reason Apple is crumbling like a paper tiger is because it costs them practically nothing since it's not their product being targeted. This is like suing Wal-Mart because you have a trademark dispute with one of the products they sell. The correct response would be "not our business, sue them individually for trademark infringement if you want".
Live today, because you never know what tomorrow brings
Came here to say this too. Check "Allow Unknown Sources" in Settings, open .apk, install app. Perfectly allowable within the default Android setup, and yes, this is the setup that 95% of carriers use. (I've heard of some carriers taking away the Unknown Sources checkbox, but to my knowledge it's very uncommon.)
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
If I win I resubmit my app? Is that a serious response. What do I do in the mean time while i'm losing profit.
This is partially a problem of Trademark law. Any affected developer should be able to get an temporary injunction from a judge saying Apple doesn't have enforce the claim until the suit is settled in court. However, Apple still has the right to enforce it if they want, just like they can remove apps that use the work "Green" in the title if they really wanted to.
Ceci n'est pas un sig.
So every hypothetical violation of IP is a crime now I take it?
Wasn't a huge reason Apple implemented the "walled garden" approach was to minimize malware? Compare Android and iOS malware and you'll see it has worked (http://borepatch.blogspot.com/2012/10/ios-vs-android-security-comparison.html). I agree it's annoying but at least it has some benefit...I have never had an instance where I couldn't find a program in the AppStore that did exactly what I needed.
In the case of this article, Apple is doing what they are legally obliged to do...protect someone's (idiotic though legal) trademark on a common word. We all should be up in arms...heck, why can grocery stores sell apples or why can people have those windows in their homes without paying royalties? This is the problem.
You knew what you were getting with an i-Device when you bought it so you have no leg to stand on.
You're right that you don't need root, per se, but there are a lot of devices out there with sideloading disabled and you do then have to root. I'm not an expert, though. It's been a long time since I ran a stock rom. I'm running CM10 on a t959 Vibrant (US Galaxy S variant) and it's been a long time since I ran a stock rom.
The problem here is that at that point your platform doesn't matter - in fact, companies do get granted injunctions on trademark matters all the time. You might have noticed some more important ones reported on Slashdot - and trust me, this is only the tip of the iceberg.
Too many people here are working on Apple hatred.
FTFY
The problem is that Apple is also blocking sales while the two parties "work it out". Which they may never will - for example, the "offending" party may well be in a different jurisdiction where the trademark simply doesn't apply, but it applies to Apple in the states.
And the reason why it is a problem is because the app author can't just work it out directly with his users. If you're out of the App Store, you don't have any official, supported channel for people to install your app, period. So, yes, this is entirely about the walled garden.
The same copyright (or rather trademark) claim can, of course, be brought up against other app stores, but in that cases - at least with Android - the users have the recourse of just obtaining the app in question directly from its developer, or from a competing app store. Not so here. That's what the "walled garden" takes away from you.
Don't think so. From the article, they estimate 50 games will be affected. This looks like this is effecting memory clones, not any app with the word memory in it.
Yeah I'm sure someone selling $0.99 games which almost certainly aren't in the top ten can afford a lawyer to take them on.
Couldn't a Dictionary making company claim Prior Art?
Sure, but since a trademark doesn't have to be new, that dictionary making company wouldn't be much help. You're thinking patents. Trademarks only need to be distinctive of a manufacturer.
Do they own the trademark in question in every single country in the world? I don't think so. However, they can go after anything published to Apple's App Store, because Apple itself is in US, and they have the trademark registered there - that developer of the infringing app might be, say, from India does not enter the picture. From developer's perspective, it's a mess - they might have been happy to sell the app in those markets where there's no trademark infringement, but they simply can't, because there's only one channel to get apps to the users on iOS devices.
Came here to say this too. Check "Allow Unknown Sources" in Settings, open .apk, install app. Perfectly allowable within the default Android setup, and yes, this is the setup that 95% of carriers use. (I've heard of some carriers taking away the Unknown Sources checkbox, but to my knowledge it's very uncommon.)
AT&T used to not allow that, but once people started trying to download Amazon's app store and got a ton of flak over it. AT&T quickly gave people the ability to do so.
Or, we can just block the app from German citizens. THAT would be the proper response.
Gamingmuseum.com: Give your 3D accelerator a rest.
It's not a garden. It's a zoo, and the inhabitants are flinging feces at one another and sometimes at those outside looking in. But there are no fences, there are plenty of doors, it's just that none of them want to leave, because they don't know any better.
Leave them be and save your common sense.
I work for an ecommerce provider in the software industry. We (and our clients) are not allowed to sell any games with "Memory" in the title. The same thing applies for "Tetris". This has been the rule for 8+ years. I'm surprised Apple let it slide in the first place.
Didn't Apple TM the lowercase i in all their crap?
You're an ignorant fuckass. And I'm smarter than you.
So, the bar is that low for you to feel good about yourself? Lemme guess, you're in Virginia?
Sigh, you totally didn't get the point.
Perhaps it's time for an analogy:
Imagine your child starting to cry in the cinema, and then the cinema clerk tells your child to STFU, and when he doesn't, hits him.
"That'll teach you".
We know it is not allowed to cry in the cinema. We know it bothers other people. We'll parent our own child, thank you.
I hope it is clear now.
If Pandora's box is destined to be opened, *I* want to be the one to open it.
"It's harder for me to commit a crime so I don't like it" is the argument here.
It depends on the nature of the "crime". What we are talking about here is trademark abuse of a generic name, one that isn't even trademarked in countries like the United States, but a worldwide ban on any hint of "infringement" is now in effect.
It's no different than if you marketed an app called "Photoshop Pro" and Adobe shit all over your party
"Photoshop" was an invented term. "Memory" is completely generic and there were already several games of its type in existence. Not only is it generic, it is descriptive. It's like selling a math teaching game and trying to trademark "arithmetic", or an operating system based on the generic "window" abstraction and calling it Windows (*cough cough*). Yeah, Microsoft got away with one.
and they use weird arguments like "You' can't just trademark a generic word!"
You can, but your use of a generic word has to be distinctive. Forbidding everybody else to use the word "memory" in their games is abusive and not what trademark is intended for.
What next? Trademarking "windows"?
You're right that you don't need root, per se, but there are a lot of devices out there with sideloading disabled
AT&T was really the only carrier that did this, and they re-enabled the checkbox (which gives the user the choice) quite a while ago. I don't have AT&T, but Amazon had warnings on their app pages about AT&T, and I haven't seen those in nearly a year.
At this point, no Android device requires root to install an app, regardless of source.
Depends on how you read the article. The article says "In total, there are thought to be more than 50 games this trademark will force to change names", but it also says "demanded Apple stop offering apps that have the word ‘memory’ in their title or as a keyword associated with an app". There is no indication this is limited to games alone, just geek.com's note that there are 50 games in the app store with "memory" in the title.
Guantanama bay called. They want their entertainment back.
Sure. But that has no relevance whatsoever, so I fail to see why you bothered to bring it up. Trademarks only apply within specific domains. Apple Inc. (formerly Apple Computer) and Apple Records were able to coexist for years since they were in different industries, yet they both had valid trademarks for the term Apple within their industries. It wasn't until Apple Inc. decided to get into music that things got really messy, since Apple Records had rights to the name in that space.
I could probably make a soda brand named Subway if I wanted to, but I couldn't make a restaurant with that name, since the name is already trademarked in that domain. Similarly, here, Memory is a trademarked name within the domain of games. While I could likely make a clothing brand named Memory, I can't make a game with that name, just as I can't make a tablet named Fire or an OS named Windows or Android. Just because I can make a product named Memory in a different domain does not mean that I have a right to make a product named Memory in the domain in which a trademark for that term applies.
They would have to go in front of a judge first.
That is due process. This is not.
Why is it so hard to only have politicians for a few years, then have them go away?
I'm glad to hear that. I haven't been back to the states in a while. I'm surprised AT&T changed their policies. When i was there they were absolute dicks.
But just try to name your new game "monopoly" and see how long you can keep it on the market.
But you can't pick another app store without jailbreaking your phone, voiding its warranty and have other apps that you paid for tweet that you're a pirate, just because you've jailbroken your phone.
This is about a trademark.
Copyrights, trademarks, and patents are three different things . How can we ever expect politicians to fix our IP system, when even many geeks seem incapable of understanding even the absolute basics?
Fix the IP system? Politicians, advertising, many corporations, and now you are actively confusing the public by grouping the 3 terms into "intellectual property." Of which there is no such thing. Owning ideas is impossible, outside of fiction and courtrooms.
Apple is just trying to keep one client happy... assisting in out of court trademarks enforcement. If they didn't they risk being sued, and have every other major trademark player would start questioning Apple.
Apple's not being evil here. How many of you have never played "Memory". It's only common to you. It hasn't necessarily lost its trademark protection by becoming generic per se. If a company believes it has indeed become generic, then fight it in court, not with Apple.
A C&D is not a court order. I'm not obliged to comply. If I made, for example, a memory checker system tool for iOS and Ravensburger sent me a C&D I could tell them to go screw as they would have no case. Apple, on the other hand, doesn't give a fuck as to the threat's credibility and is only thinking about risk management... so there goes my app, or it gets renamed to something useless nobody will ever find.
It's harder for me to NOT commit a crime so I don't like it
FTFY
Appeal what? The claim isn't against the developers, its against Apple. The developers aren't being threatened with a lawsuit, they're having their app pulled because of a clause in the agreement they have with Apple.
But are they assholes with the legal resources and cash to go after 50,000 different cases of infringement, with more popping up every minute?
They have to go to court to get such an injunction and you do have an opportunity to defend yourself. A judge may grant a preliminary injunction but that's risky for the plaintiff and are not that easy to get.
to enforce a clearly bogus trademark: http://en.wikipedia.org/wiki/Concentration_(game)
Fugue for Aaron Swartz
The age of a trademark is irrelevant, as long as it is paid for and defended. The trademark also only applies to a specific area.
Its fine to name your concrete company "McDonald's Concrete" but a food outlet called "MacDonanld's Home Made Burgers" is going to get your ass sued.
Trademarks also have to be approved and can be disputed easily as well.
The problem is they're using it against any game using "memory" as a keyword or part of the name. So something like "memory trainer" (training you rmemory by recalling sequences or stuff like that) would not be allowed even though it has nothing whatsoever to do with Ravensburger's Memory game. That's just wrong.
Apple is legally responsible for any costs/lost profit related to this not only to Ravensburger but the developers. Only approved apps are allowed, thus they have implied consent to and are legally been bound to any costs/damages associated with it. In effect they have agreed to pay Ravensburger for the use of the name or damages in this case. It does not matter if Apple's lawyers didn't adequately research the trademark. You can't just all of the sudden stop using; by telling developers to stop using a trademark, then simply saying they're sorry, it wasn't our fault. The damage is done, they approved it.
If it was a general store, where anyone can upload applications that would not be the case, but it's not, it's wholly owned by Apple, wholly approved by Apple, wholly Apple's responsibility.
Also this trademark is at least 30 years old.
Trademarks don't expire so long as you use the mark. Being old actaully works in the favor of the trademark owner legally. In the US it looks like Hasbro either owns or once owned the Memory mark in relation to card games.
http://www.oddtodd.com/hasbro2.html
Not sure if Concentration is trademarked.
This is exactly why trademarks are not fsckd. Its not economical to trademark troll, but it is very profitable to patent troll and do the same with copyright.
Trademarks are a tool used by companies to protect their trade marks while they're trading. They're not supposed to be "fire and forget" like a patent or given freely like a copyright. They cover names and icons, nothing else and only in specific areas of trade and if you don't actively defend it, you lose it. You can't sit on it until a start-up makes it big and has lots of money. You can't buy it from someone else and a few years later sue every company under the sun.
Google can do the same thing in their store. So can Amazon.
It depends on if those apps are available outside the Play store.
Are they suing Paramount for Memory-Alpha?
Free Martian Whores!
AT&T Android phones do have "Install From Untrusted Sources" disabled and AFAIK the only way to enable is to root. This could have changed, but was definitely the case for my brother's Atrix when he got it.
Sue Ravensburger for damages. You'd have a very similar problem if you were selling the app through your website, and they went after your hosting provider.
"It's harder for me to commit a crime so I don't like it" is the argument here.
Um.... proof? How is such a speculative claim insightful on any level?
just change it to mämory... sounds the same and should teach the Germans a lesson...
Yes, your garden looks very nice at first glance. But I'll stay out here, thanks.
Sometimes a central authority is a good thing. But no-fucking-body is telling me what software I can or can't download, or banning me from downloading certain titles over some stupid shit like this. And this is just a mild example of what they *could* do if they wanted.
This game basically rips off the public domain game "Concentration", which we call "Memory" or "Pairs" in the United States. It may be called a "board game", but looking at its picture. It doesn't have a board. It's just a card game with pairs of cards, that they redesigned with a different look to make the rip off less obvious.
And my hunch is that they were able to register this trademark in 42 countries precisely because none of those countries were English-speaking (or they didn't know the game Memory). For instance, if I were to register the german word "Speicher" (Memory) as a trademark in the US, no one would stop me because it's not a common word used in the United States (although we do use foreign words sometimes).
And the problem in this case is not that Apple is a walled garden, it's the actual mechanism that the iOS SDK provides for doing localisations. For iOS, localisation is done after the fact. For Android, the localization issue is thought out well in advance, long before the developer even begins working on his application. In several ways, it's just like the screen size/density issues. In Android, those screen size/density issues have been worked out well in advance, with iOS, the screen size/density variation issue is being handled much later in the process -- if at all.
In Android, if/when the same issue comes up, a non-developer will be able to handle it, they'll just need to get the list of the 42 countries affected, focus only on the countries where the larger foreign revenue-generating audiences are, and consult with a few foreign-speaking friends. And in less than one hour of work, that non-developer will have the application repackaged and up on the Market (Google Play), with its name intact in the US and in the UK, but with the name "Speicher" in Germany and Austria and with the name "Mémoire" in France (but with still the original name "Memory" in French-speaking Québec, since I assume that Québec won't be one of those 42 jurisdictions scammed by those people, at most in Quebec only the description may have to be in French), etc.
The problem is that Apple is also blocking sales while the two parties "work it out".
Because if they don't, then they can be held liable as well.
Apple should use its billions of dollars to squash this ridiculous claim.
Why? Why should they be the ones to defend this?
"Nonforgetification"
Table-ized A.I.
>We are SPARTA!
Except that by acting as the distributor, Apple can be held liable under US law as well.
But Apple is not giving developers that choice - they can either remove the term "memory", or remove the app entirely.
You're making assumptions here. Nobody has said whether any use of "memory" was being targeted, or just the games.
Apple have taken a decision to impose a blanket ban on the term - which, while I see the practical benefits from their point of view, is clearly detrimental to, say, people searching for an application to check what DIMMs might be compatible with some hardware they need to upgrade...
[Citation Needed]
Hey douche bag, you realize Apple is legally forced to do this. RTFA!
And in the mean time, how are they going to make revenue? If you think a lot of users are getting their paid-for apps outside of the Google and Amazon stores, you're crazy.
It's a registered trademark. Apple is a word in a dictionary too. It's also trademarked.
And you're being a fucking moron - match made in heaven....
No, they are complying with the law. Under US law, if they don't respond to things like this, they can be held liable too.
Yeah, no, that makes no sense.
As well as International Law.
I've had that happen before. It's annoying, but not a huge deal. You simply find a new host, transfer your files and databases, and point your domain to the new nameservers. I've also had somebody try a trademark claim on a domain of mine. You get to defend against that (and I did, and I won). I'd wager doing that is a lot easier than trying to get Apple to change a decision they've made becuase of their risk management policies. It's simply not in their interests to judge whether legal claims have merit. They can't just get any old intern to do that. They have to pay legal staff, which doesn't come cheap.
You appeal to the courts if you think their claim is spurious and if you win you resubmit your app. The procedure for fighting the claim is no different than if you weren't selling through someone's store and you were threatened with a lawsuit over a trademark claim against your product.
Or you can just sit tight and let them appeal to the courts if they want to. You don't have that option here.
What makes you think Ravensburger isn't going to send almost the same notice directly to developers tomorrow?
Wow, this is messy!
First: Developers who receive these subpoenas should contact the IGDA since they have experience in this matter. The EFF is also good at creating public awareness of these IP abusers.
It seems odd that Ravensburger doesn't contact the developers and offer licensing agreements. They should be using their trademark for profit, not loss.
If Ravensburger can sue "Preschool memory matchup" then I think the Baltimore Ravens should sue Ravensburger for using the word "Ravens" for a game company. :-) Don't they sell Ravens burgers at Ravens games?
Why are they going after Apple? Is it okay to contact a distributor to tell them to stop carrying a product if the name infringes on your trademark?
Ravensburger owns the trademark in 42 different countries, but not in the US.
Boy, that complicates things! If Apple shut down a piece of software made in the US, based on IP law in another country, that seems like it would open Apple for a lawsuit as well.
Its perfectly valid to sue Wal-Mart for selling a product that infringes on your trademark. It's illegal to sell trademark infringing products. You can make and sell a "memory" card game called "memory" in USA legally because Ravensburger AG doesn't hold a trademark in USA for memory. If it is sold in another country, like Germany or the UK where they do hold a trademark whoever imports or sells that game will get sued.
So the correct response should be "Talk to our lawyers". The correct action should be "Remove the products from sale until the dispute is over"
Actually Apple will get sued, not the developer. The developer isn't doing the selling of the trademark infringing product, Apple is. I can make my own card game called "memory" and its perfectly legal. Depending on what country I'm in it may be illegal to sell it.
[Citation needed]
You've repeated it several times, but didn't even mention which US law and what exactly they'll be held liable for.
It's the principle of the matter isn't it? A person has the legal right to defend themselves.
I look forward to it. It will be interesting to see how another app store handles it.
The reasonable response would be to request which specific apps infringe which trademarks and remove them from sale in the countries where those trademarks are registered.
That's not the problem. The developers are not selling their apps. They're not doing anything illegal. Apple is the one doing the selling, they're the one who will get sued.
There is a big different between trademarks, copyrights and patents.
They don't have a trademark in USA. They have it in 42 other countries. The problem is Apple sells the apps in those countries.
Apple has really become rather jealous and deranged recently, with the most ridiculous patent claims I have ever seen, and I am a patent lawyer with expertise in IT and information related patents. Thankfully I don't work in the crazy US system, or have to litigate patents very often, but seeing this kind of pathetic behaviour makes me cringe.
It is against the law to sell trademark infringing items. Apple would be infringing on the trademark by allowing the app in the garden. It is not up to the developer, any more than it would be up to Timmex or Rollex whether Walmart sells their watches. Now, it may be that the trademark has gone undefended (I've never heard of any claims by anyone on the word "memory", and there are many, many card flipping games called memory out there), but it is probably not worth Apple's time and money to find out. It's far easier to just deny all, and pass that buck to the developers.
When our name is on the back of your car, we're behind you all the way!
Very well typed out argument, and absolutely sound logic. The one thing I'll point out (sans links, sorry) is that at least in the united states (I know, global market now, but using what I know) games are not covered under copyright. The images you use, or the specific wording of the directions can be, but the actual rules governing gameplay are not. So trademark law is really the only recourse open to game makers.
However, my disappointment here lies with Apple not going to bat for it's customers. If you build yourself as a community gatekeeper, and rely on them as a driving force for your business model, then you should be stepping up to bat for them. After all the vitriol that's been disclosed when it comes to their abilities in a court room, it's frankly saddening that they'd not even appear to put up a fight. It's not just money that's on the line here..
Can everyone stop confusing trademarks with copyrights and patents. Producing something protected by a trademark is not illegal. Selling it is, and only in the country the trademark file and only in specific trademark classes.
I totally agree. You should have the right to defend yourself and exercise it if you won't end off worse for it. It's just unfortunte that defending yourself usually requires more time and money than your average person has to spend.
That didn't change, they just didn't want to see people move to less dickish carriers over the Amazon Appstore
I believe every single app store has pulled content for trademark / copyright issues so the only thing that would be different is they'll ask for names and then the company searches for memory, gets a list and they're banned. I'm not sure that's better. It would be better if you couldn't trademark something as generic as memory.
Your analysis is correct. Although I completely agree with your post in substance, there are two minor corrections I would contribute:
First, colors cannot be "trademarked" in the conventional meaning of the word. UPS does not own a trademark over the color brown, nor does John Deere own the color green. UPS cannot prevent trucks, or even delivery trucks from being painted brown, nor can John Deere stop farm equipment from being painted green, so long as a reasonable person would not be confused by the origin of the product. What these companies do have, however, are trade dress restrictions which are also governed by the Lanham Act. Trade dress describes your product's overall appearance and packaging of a product or service. At the most liberal outset and expansive of protections, Two Pesos states that trade dress can be distinctive [and thus deserving of protection] without having to show that the trade dress has acquired secondary meaning [has itself become distinctive for other market reasons]. This is the case law as it stands today, though a huge number of critics have taken huge exceptions to this ruling. Two Pesos was reigned in by Wal-Mart v. Samara which stated that a products design is only protectable by showing of secondary meaning. In that sense, Tide cannot claim trade dress infringement by orange-bottled fabric detergent without showing that the orange bottle has acquired secondary market meaning. UPS's brown trucks and John Deere's green tractors will likely have secondary meaning, but the question does not stop at trade dress. Instead, trade dress goes to a likelihood of confusion (so does trademark, but trademark prevents literal infringement in a same category where trade dress may not). For example, If I sell you a green tractor with yellow accents, you might think it came from John Deere. If I sold you the same tractor with purple accents instead of yellow, you likely would not, and I would not have infringed on John Deere's trade dress.
The distinction is best summarized (although I still disagree with the ruling) by Louboutin v. Yves St. Laurent, where a federal appellate court ruled that monochromatic red shoes cannot be 'trademarked' but that red soles on a non-red shoe may be [again dependent upon finding of secondary meaning].
Second, there is an inherent difference between trademarks like "Apple" and "Google," "Photoshop," and that of "Memory." "Apple" and "Google" would fall under the "arbitrary" or "fanciful" categories (respectively) since "Google" is a made up word with no other meaning, and "Apple" is the use of a generic word in a completely unrelated context (computers). Continuing in order of protection, "Photoshop" would be "suggestive," since it is a unique combination of words that suggests the nature of the product [i.e. a digital workshop in which you can retouch photos]. Blu-Ray is a good example.
Memory, on the other hand, is a descriptive mark, which is the least protected and only one step above an unprotectable generic word. "Memory" is directly related to the meaning of the board game in which you must "remember" the location of the cards to match them. The only way that descriptive marks gain protection is if they have developed some secondary meaning in the marketplace. As such, Ravensburger has a much higher standard to prove that they are considered to be the source of the "Memory" game than any other "memory" game on the market. Their continued ownership of the trademark seems to evidence that they have done so.
But you are absolutely right in that Ravensburger has the trademark, and any maker of a "Memory" game is infringing on that trademark. However, the makers of these apps may file an action against Ravenburger to invalidate their trademark and preserve their app's name. So this isn't big, evil Apple beating up on the little guys. These guys are infringing, and they have the burden of proving that Ravenburger is not deserving of the "MEMORY" trademark. They j
Too bad google users are absolutely locked in to Google Play and can't possibly get their apps any other way....
Oh right, every current Android device allows side-loading of apps...
Citizen Joe Average doesn't care. To him, all IP and related issues are grouped together and it doesn't matter if they're called copyright, trademarks, or patents. And thanks to persistent over-reach and abuse of them by megacorps, he almost certainly now believes they're all idiotic schemes, and he will honor them exactly as much as he needs to in order to stay away from jail and massive fines, and not one iota more. Megacorps have broken the idea of IP for the foreseeable future, and it looks like they're working on destroying property law and democracy. How many more beneficial, hard-won aspects of civilized society do we let them destroy before we start getting rid of them?
> It's no different than if you marketed an app called "Photoshop Pro"
Don't be absurd. If you know anything about trademarks, you should know that there are different levels of creativity put into the mark and that those different levels have different levels of protection. A trademark on "Memory" is at the very lowest level. The highest level of marks are considered "fanciful" wherein someone picked a name that no one else would choose coincidentally, while a mark like "Memory" is merely descriptive: it describes a game in which one remembers things. There's almost zero creativity there and one can use the word "memory" in its ordinary sense without abusing the mark. But trademark lawyers are trained to be total dicks and to do everything they can to get more billable hours by "protecting" the brand, so here we are. Ok, so there was one guy who put out a "permit and proceed" letter because it made no sense to forbid that person from using their mark. But that was one guy out of, umm, all trademark lawyers everywhere.
Here is an overview of the different levels of trademark protection which should help explain why you've created a non sequitur here. This is even worse, because as another commentator pointed out, it can affect things like a battery memory app, which has nothing to do with games and isn't the least bit confusing.
And that's what trademarks are about: avoiding the case where someone passes off their goods as belonging to a trusted brand. They're not about owning words, but identifying the origin of goods. As such, there is no public interest in forbidding the ordinary, descriptive use of common words like "memory" and you might want to further educate yourself about trademark law before you go on making ridiculous comparisons and talking about "crime" when we're dealing with civil law (FYI, they're called "torts").
Back in the 80's when Guiliani started his campaign of terror to Disnifi New York, he demanded the closure of strip clubs in NYC.
That's when they started to become renamed as "gentleman's clubs", and changed their MO from seedy pole dancing to upscale entertainment for men, ala the playboy clubs from the 60's.
However, one such seedy place still existed on 24th street, 3rd Ave, called "Billy's Topless" It was a straight-out bar that served food as well (good burgers!), and yes, the ladies were showing ta-tas.
So, the mayor's office demanded they close or change their name so no one could recognize the place as a nudie-bar.
They changed the name to "Billy Stopless".
If telephones are outlawed, then only outlaws will have telephones.
Also interesting, and undercutting much of my analysis, is that Ravensburger does not own a trademark to MEMORY in the United States. Apple, as a U.S. corporation therefore, may be overreaching in applying foreign law at least to its U.S. service. Although undoubtedly this makes it easier for them to avoid being held liable for contributory infringement.
The Apple trademark, as applied to computers, is at least arbitrary. "Memory" describing a memory game is, well, merely descriptive. So the "Memory" mark should rightfully sit at the very lowest level of trademark protection.
I'm going to create a company called "Integrated Security" and trademake it and it's acronym. Oh, I'll let you use my trademarked word "IS", but you will have to pay me first.
It may seem ludicrous such a common word can be trademarked, but apparently this is a valid claim as Apple is now serving notices to app developers.
No more ludicrous than having a patent on a rectangle with rounded corners. :P
I'm trademarking "Game".
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
Solution: No words in the dictionary can be trademarked.
Possible further problem: Corruption in the dictionary companies
Further solution: Wikipedia/democratic voting on words.
A blog I run for the wealth
I cetainly did! Fortunately I enjoy sitting ;)
Invaders must die
Copyright issues are completely different, since they're not restricted by territory or class. Ravensburg AG only have the rights to board games and games delivered over a data network called "memory" or something similar and only in the countries they have registered it, which does not include USA.
Sure. Like I said, the real problem here is that you have no recourse while they're doing that - you can't just go ahead and sell it yourself directly.
And in the end, you lost tons of money, they lost tons of money, and the only people who earned any money were the lawyers.
Can't we all just get along?
--
cpu6502
The significance is the context. Apple(tm) is okay to trademark within the domain of computers because the word has no relation whatsoever to the product being offered. Let's say you owned a landscaping company called "Bob's Lawn and Care;" how would you react when you're told you have to rename
your business or find a new market because someone owns the trademark on the word "Lawn."
This scenario is no different with what is happening now, where app developer Bob has an app called Memory Tester which tests how good a person's memory is. Now Memory(tm) is saying that not only must you rename your app, but you must also remove it from the "memory" key word search. That is outright crippling to an app developer.
Poor move on Apple's part not using a little more discretion and common sense, because this just might disenfranchise a lot of app developers.
[corporation], on the other hand, doesn't give a fuck as to the threat's credibility and is only thinking about risk management
This is an example of why a Libertarian would be a nightmare!
Apple has nothing to do with "Apple ... sending notices to several developers asking them to remove or rename Apps that have 'Memory' in their titles."???
Troll is not a replacement for I disagree.
"It's harder for me to commit a crime so I don't like it" is the argument here. What's happening is there's a trademark claim, and people are being made to comply. It's no different than if you marketed an app called "Photoshop Pro" and Adobe shit all over your party.
Here is a much more appropriate analogy: It's no different than if you marketed an app called "Photo Editing Software" and Adobe shit all over your party because they own the trademark on the word "photo."
See how much difference context can make?
Furthermore, non of those three laws mention or create a legal basis for the fluffy term "Intellectual Property". It is a misnomer, tacked on in later years, to attempt to frame the debate in a direction we would be better off without.
Again, by RMS: (this seems to be my refrain this week)
"It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely. "
The complete essay:
http://www.gnu.org/philosophy/not-ipr.html
But "you" are not being threatened by a lawsuit, Apple is. And in response Apple are acting on part of their contract with you and telling you to change your product's name of remove it (and they do not need to give you a reason or a way to appeal)
Troll is not a replacement for I disagree.
I have a reversi game on the App Store called 'Ultimate Reversi'. A few months ago, Apple received a C&D letter from Ravensburger and asked me to resolve the issue with Ravensburger or remove my app from the store. Ravensburger has a 1981 trademark on the Reversi name registered in Germany and extended to Europa in 2005. As it is the original name for a 19th centuary game, the trademark probably wouldn't hold in court. Because Ravensburger targeted Apple instead of me, I cannot tell them to go fuck themselves so I eventually ceased and desisted.
and if they call google, what happens?
https://play.google.com/store/apps/details?id=memory.com&feature=search_result#?t=W251bGwsMSwyLDEsIm1lbW9yeS5jb20iXQ..
What you've explained is indeed important and a very real concern. I heartily agree with it and its relevance. I simply fail to see how any of it applies to what the previous AC post said, hence why I stated what I did.
yes, the whole system needs a band-aid
I'm sure there is an answer to the whole thing if you just google it on bing.
If I find it, I'll xerox you a copy, but right now I need an aspirin... Where's my styrofoam thermos?
http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks
Foiled again...that's not what I meant :)
Do you actually think the word "probably" is spelled "propably"???
Please see the parent quote:
"How can we ever expect politicians to fix our IP system, when even many geeks seem incapable of understanding even the absolute basics?"
Somebody invented it, but all people see is that they can't remember when it was novel, so it must be free.
I was going to try to prove you wrong, but I'm the one who was wrong because apparently Ravensberg got its European trademark on the mark "MEMORY" in 1972 and then on the mark "Memory" (mixed-case) in 1999.
Since I do not know German, here is the source from a French site (use the number 28 as the category/classification for games). The only part that I don't understand is that two other entities registered the mark "Krtek Memory Game" in 2012 and the mark "EDUCA Memory game" in 1997. Am I missing something, or have they allowed overlapping trademarks?
Marque : MEMORY
Classification de Nice : 28
Produits et services
28 Jeux et jouets.
Déposant : Ravensburger AG, limited liability company, Robert-Bosch-Strasse 1 88214 Ravensburg, DE
Adresse pour la correspondance : Ravensburger AG, Robert-Bosch-Strasse 1 88214 Ravensburg, DE
Mandataire : Wuesthoff & Wuesthoff, Patent- und Rechtsanwälte, Schweigerstraße 2 81541 München, DE
Numéro : 393512
Date de dépôt / Enregistrement : 1972-11-14
Date prévue pour l'expiration : 2012-11-14
Pays désignés
Danemark, Estonie, Finlande, Géorgie, Lituanie, Norvège, Suède, Arménie, Autriche, Bosnie-Herzégovine, Bélarus, Suisse, République tchèque, Égypte, Espagne, France, Croatie, Hongrie, Italie, Liechtenstein, Lettonie, Monténégro, Ex-République yougoslave de Macédoine, Portugal, Serbie, Fédération de Russie, Slovénie, Slovaquie, Ukraine (Protocole)
Dépôt origine : BX 38 328 1971-01-01
Historique
Enregistrement 1972-11-14 (Gazette 1972/12 du 1973-02-01)
Autre décision finale pour France 1972-11-14
Limitation : Liste limitée à 28 : Jouets.
Refus total provisoire de protection pour Allemagne (sans le territoire qui, avant le 3 octobre 1990, constituait la République fédérale d'Allemagne) 1972-11-14
Renouvellement 1992-11-14 (Gazette 1992/11 du 1993-01-21)
Non renouvellement pour certaines parties
Continuation des effets pour Croatie, Slovénie 1993-02-10 (Gazette 1993/3 du 1993-05-14)
Continuation des effets pour République tchèque, Slovaquie 1993-03-29 (Gazette 1993/9 du 1993-11-17)
Continuation des effets pour Ex-République yougoslave de Macédoine 1993-12-02 (Gazette 1994/1 du 1994-03-21)
Continuation des effets pour Bosnie-Herzégovine 1996-12-23 (Gazette 1996/19 du 1997-02-07)
Désignations postérieures pour Bélarus, Lettonie, Fédération de Russie, Ukraine, Danemark, Estonie, Finlande, Géorgie, Lituanie, Suède 2001-02-02 (Gazette 2001/6 du 2001-04-26)
Protection Granted Opposition Period pour Géorgie 2002-03-26 (Gazette 2002/6 du 2002-05-02)
Refus total provisoire de protection pour Finlande 2002-04-02 (Gazette 2002/7 du 2002-05-16)
Octroi de protection pour Géorgie 2002-07-10 (Gazette 2002/14 du 2002-08-22)
Période d'opposition pour Finlande 2002-09-16 (Gazette 2002/19 du 2002-10-31)
Renouvellement selon la règle 40,3 2002-10-16 (Gazette 2002/23 du 2002-12-26)
Désignations postérieures pour Norvège 2002-10-22 (Gazette 2002/23 du 2002-12-26)
Limitation pour Allemagne 2002-11-13 (Gazette 2003/9 du 2003-06-12)
Limitation : Finlande, Liste limitée à 28 : Jeux collectifs.
Autre décision finale pour Finlande 2002-11-22 (Gazette 2002/25 du 2003-02-06)
Renouvellement selon la règle 40,3 2003-05-14 (Gazette 2003/16 du 2003-09-18)
Refus total provisoire de protection pour Norvège 2003-12-01 (Gazette 2003/24 du 2004-01-08)
Infirmation finale de refus
Actually, the UK is not listed in there.
So my initial instinct, that only non-English speaking countries would approve the request is probably correct.
Even in 1973, the card game Memory was probably already well known among UK and US trademark clerks.
From Gamasutra: "The countries in which Ravensburger claims to hold the trademark, according to the Apple notice that one developer forwarded to us, are as follows: 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. "
You may notice some countries that are missing: Australia, Ireland, Newzealand, United Kingdom, USA. That's because getting a trademark for the word "Memory" for a game that tests your memory in an English-speaking country would be quite difficult.
On the Apple App Store, developers have a huge list of checkboxes where they can choose where to sell a program. If "Memory" is in the title of a game, they can continue selling it in Australia, Ireland, Newzealand, United Kingdom, and the USA. Just remove the checkbox for those countries where Ravensburger has a trademark on the name.
Don't know if Apple allows selling a program under a different name in different countries. I suppose they should. For example, translating the name of a game into German for the German version, or French for the French version, would easily get around the problem.
Memory, on the other hand, is a descriptive mark, which is the least protected and only one step above an unprotectable generic word. "Memory" is directly related to the meaning of the board game in which you must "remember" the location of the cards to match them. The only way that descriptive marks gain protection is if they have developed some secondary meaning in the marketplace. As such, Ravensburger has a much higher standard to prove that they are considered to be the source of the "Memory" game than any other "memory" game on the market.
The argument is correct, but it applies to the word "Memory" only in English speaking countries. And Ravensburger doesn't have a trademark on Memory in the USA, UK, Ireland, Australia, or Newzealand. We can guess why. If an American company wants to call a game "GedÃchtnis" and get a trademark for that name, I doubt they would have any problems.
But is Apple legally forced to restrict their customers from avoiding this restriction? No, the walled garden and "Apps only through OUR App store" is Apple's choice.
It is nice for the IP holders though. Millions of captive customers, penned in neatly by the shiny walls of the iOS lock-in. Apple rounds 'em up, brands 'em, and corrals 'em... every patent and trademark troll can pick 'em off and butcher 'em at leisure.
Welcome to the Panopticon. Used to be a prison, now it's your home.
Haha. Excellent reposte! :D
Invaders must die
In business, principles are expensive. So what you do is notify Apple in writing that you will comply because they leave you no option, bluntly state you believe you are being treated unfairly and are seeking legal advise about the matter. Tell all your customers about the new name and why it has to change, keep it factual, if you want to use the opportunity to bitch, do it in a humorous manner (re: "The Oatmeal"). But be careful, that style of writing takes real talent and can easily backfire in the hands of an arm-chair lawyer.
Having said that, few people appreciate being bullied by someone waving a trademark that should not have been issued in the first place. Apple have already made up their mind to comply with the demand, it's the "path of least resistance" to them, and as the owner of the app store they are standing on solid legal ground. You'll need more than the fleeting attention of the media to convince a behemoth like Apple to change their mind. Your best bet for a principled stand against the demand is to band together with other victims, hire some lawyers and contest the trademark in court as a group AFTER the fact, ie: after it has demonstrably damaged your wallet as well as your pride and sense of fair play. (re: fact of life #1 - Life is not fair)
The cost is probably not worth the fight from a business POV, probably a wise move would be to cool off for a week or two before purchasing a pack of silk hounds. That's life, you win some, you lose some, as the "underdog" your very likely to be a popular loser and may even profit from it. At the end of the day it makes as much sense for adults to settle every stupid dispute in court as it does for school kids to settle all their differences in the headmasters office. At some point the headmaster has to say, stop bothering me with trivia.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
Copyrights, trademarks, and patents are three different things . How can we ever expect politicians to fix our IP system, when even many geeks seem incapable of understanding even the absolute basics?
Huh?! Are geeks suppose to be well versed in all intricacies of the copyright/trademark laws all of the sudden? What's next, are geeks now suppose to know that vulva, vagina and pudenda are three different things?
No, they aren't. There is no law of which I am aware that forces Apple to be somebody else's Copyright Police.
At least, not anywhere except perhaps in Germany. And even then, "force" is probably not the proper word, because such an absurd trademark can be (and probably should be) challenged, and likely that challenge would be successful.
If Apple wants to take the easy way out, and make others suffer for its decision, that's pretty much Apple's choice.
s/Copyright/Trademark the concept is the same.
There is already a public domain card game called Memory.
Hey dipshit, in a libertarian world there would be no such thing as government enforced monopolies.
What the world needs to combat this is... A Pirate Memory Game (but not too Piratey)
Came here to say this too. Check "Allow Unknown Sources" in Settings, open .apk, install app. Perfectly allowable within the default Android setup, and yes, this is the setup that 95% of carriers use. (I've heard of some carriers taking away the Unknown Sources checkbox, but to my knowledge it's very uncommon.)
AT&T used to not allow that, but once people started trying to download Amazon's app store and got a ton of flak over it. AT&T quickly gave people the ability to do so.
AT&T being the operative word.
The downside of an open system is that people can use it for evil. The upside of an open system is that if they do that, you simply dont buy from them.
Calling someone a "hater" only means you can not rationally rebut their argument.
Do you think the German company won't go after Android apps? Side loading doesn't mean anything when someone shuts the developer down.
Yes,
Because going after Android app's would be certifiably insane.
I'd be willing to bet Google will simply tell them to fob off (in nice terms), so they'll have to attempt to sue the developers individually who are in many jurisdictions which have different laws. In some countries like Australia, the courts would tear this company a new one for just trying this kind of bollocks.
They wont sue because it's an extortion racket and they picked Apple because they thought Apple would cave in and pay them (what Apple would consider) a small amount (but Apple didn't).
Calling someone a "hater" only means you can not rationally rebut their argument.
Apple just last month trademarked the word "Startup" in Canada, U.S. and around the world. They used a reference to their 2 year-old trademark in Jamaica - what does that do to accelerate the application in other countries?
Shades of Windows?
Apple, the new Microsoft. Too many Lawyers leveraging the show..
If there are 50 games that would be affected which are not mostly ripoff's of "The Memory Game" then clearly 'Apple app which is a game' is too broad a category for a single trademark to span.
I'm guessing its for THIS:
http://www.hasbro.com/shop/details.cfm?R=8EC0CAA0-6D40-1014-8BF0-9EFBF894F9D4:en_US
I used to play it as a kid 30+ years ago and it was old then. I'd guess the company revised and expanded its trademark recently so they gotta do the shakedown.
In fact, there are several memory monitoring apps (ex: Memory Doctor) in the store that tell you information about RAM usage.
If Ravensburger went after them they'd get shot down faster than Sun's moronic C&Ds against all of the coffee shops with "java" in their domain.
If it's a game involving remembering things, yes, it's probably relevant, that's what trademarks are for. Otherwise, it's bulltshit.
Yeah, and try to find a single non-Apple app with "Apple" in the title...
Yes, your garden looks very nice at first glance. But I'll stay out here, thanks.
Sometimes a central authority is a good thing. But no-fucking-body is telling me what software I can or can't download, or banning me from downloading certain titles over some stupid shit like this.
This isn't about what YOU can or can't download. This is about what the developers can name their product. You can live outside the garden, but don't be surprised if you get a C&D over the game you released.
Yes, I understand that Apple didn't CHOOSE to do this (in this case anyway). It's the fact that they CAN that bothers me.
This isn't a whole lot different than a company seeking an injunction from selling a product in a country... Or I guess a better analogy from asking a retailer to remove an infringing product from their store shelves.
If i'm a private company selling an app to you directly I can tell Ravensburger to go fuck themselves and if they want their trademark torn up they're welcome to take me to court.
And they'll probably take you to court... now what?
This is the same reason that Adobe doesn't like when someone claims they "used GIMP to photoshop" something: you did NOT photoshop that, Photoshop was not involved, stop saying these untrue things, you are creating brand confusion. It's fair game to say something is "like Photoshop," but not that it IS Photoshop or has been adjusted via Photoshop if Photoshop was not involved.
That is how companies lose their trademark. People use them in everyday terms. Yes Adobe will fight to keep it, but in this case it is a losing battle. Much like escalator, bandaid, kleenex, and many many more.
People have already requested that apps be taken off google's shop. Apple is probably easier to deal with and are perceived as having the most popular app store so you would go to them first. But if the company is serious then I can't see them stopping there.
I tend to be fairly libertarian (prosperity by liberty), but I have failed to hear a good way even most libertarian philosophies avoid "government enforced monopolies". Some resources are limited, like the spectrum for cell phone communications, or mines, or oil reserves. The problem of avoiding monopolies is much harder than libertarian philosophies address, and I'm not saying this to discourage libertarian principles. It's a problem with socialist principles as well. Libertarian philosophy certainly avoid some kinds of monopolies, but resource based ones are very difficult to work out.
And even if the trademark only applies to games involving memory, I think it's bullshit. In my mind, "Memory" is a generic term for a game which can be played with ordinary playing cards, not a specific brand from a specific publisher.
As long as I'm not marketing a competing product, I can use "photoshop" however I want. Trademark law doesn't govern casual speech.
a better analogy from asking a retailer to remove an infringing product from their store shelves.
Only, with an iPhone, that is the ONLY store I can go to. The doors are locked and I can't leave. With an Android, I can just walk out of that store and go to any other store and get the product there (or even go directly to the company that makes it and get it from them).
What political party do you join when you don't like Bible-thumpers *or* hippies?
First, colors cannot be "trademarked" in the conventional meaning of the word. UPS does not own a trademark over the color brown, nor does John Deere own the color green. UPS cannot prevent trucks, or even delivery trucks from being painted brown, nor can John Deere stop farm equipment from being painted green, so long as a reasonable person would not be confused by the origin of the product. What these companies do have, however, are trade dress restrictions which are also governed by the Lanham Act. Trade dress describes your product's overall appearance and packaging of a product or service.
Which is what I said:
Thing is UPS only has a trademark on using the color brown as a major marketing identifier for a shipping company: you cannot make a brown DHL, it has to be yellow or something. If FedEx reimaged to primarily earth tones, UPS would have a valid suit against them. If Chicago Suits took up the color brown as their major marketing factor--brown slacks, brown shoes, brown jackets, business and business casual wear--UPS has absolutely no standing to sue them because they're not a god damn shipping company and the trademark on Brown doesn't apply.
QED.
Second, there is an inherent difference between trademarks like "Apple" and "Google," "Photoshop," and that of "Memory." "Apple" and "Google" would fall under the "arbitrary" or "fanciful" categories (respectively) since "Google" is a made up word with no other meaning, and "Apple" is the use of a generic word in a completely unrelated context (computers). Continuing in order of protection, "Photoshop" would be "suggestive," since it is a unique combination of words that suggests the nature of the product [i.e. a digital workshop in which you can retouch photos]. Blu-Ray is a good example.
Do you know how the Googleplex got its name? A Googolplex is a googol of googol. A googol is 1.0 x 10^100. A googolplex is 1.0 x 10^(10^100). It's a big number. The transformation is unique; Apple Ford and Apple Electric are not related to Apple Computer, but a Google Electric would attract legal attention rather than Googol Electric. It's still not a made-up word; it's a transformation.
Memory, on the other hand, is a descriptive mark, which is the least protected and only one step above an unprotectable generic word. "Memory" is directly related to the meaning of the board game in which you must "remember" the location of the cards to match them. The only way that descriptive marks gain protection is if they have developed some secondary meaning in the marketplace. As such, Ravensburger has a much higher standard to prove that they are considered to be the source of the "Memory" game than any other "memory" game on the market. Their continued ownership of the trademark seems to evidence that they have done so.
But you are absolutely right in that Ravensburger has the trademark, and any maker of a "Memory" game is infringing on that trademark.
Yes and people are annoyed that you can't make a Memory game called Memory, or a Tetris game called Tetris, or a Scrabble game at all (especially one called Scrabble, which people have tried online a few times). The sadly non-unique case of The Tetris Company is something I cannot defend on moral grounds; however the only injustice there is that they gained control of something they didn't create (without consulting or contracting with its creator, even--they stole the whole thing); but the mechanism of action--the fact that they continue to defend their (stolen) intellectual property at all, and the specific details (the name "Tetris," mainly; the mechanics of the game, as a secondary) is something that people only fight against because Tetris is so familiar they think they're entitled to it and anyone is entitled to make a Tetris-alike.
In this case it's the same deal, Memory is familiar (hell, it was in bloody Super Mario Bros. 3) and people want to make a Mem
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Ideas, however, are definitely not affected by scarcity. Unless of course government steps in creates scarcity of ideas.
This is an inherent disadvantage to any centralized store model. All it takes is one injunction against the store, and you can affect dozens, hundreds, or even thousands of companies. Without that single point of failure, the company would have to individually get an injunction against each individual software author, which makes the bar much higher.
Uh, sure. But that's only if that app is even available outside the store. Not many app developers publish their Android apps outside the store, especially paid ones. But I guess your argument is that since you can just pirate their app anyways (not that you can't do that on a jailbreak too) then, uh, Android Ackbar!
Sure, allowable... if the app is even available as a .apk.
Have you checked this. I did. If you search for 'memory' in the store you will get about 200 hits. Most of them are some kind of 'memory' game. Some are called 'memory trainer' 'Scary prank memory game' etc. but also 'matching' etc. Oh wait, the number is not 200 but I stopped counting after 20 pages with 120 apps so more then 2400 apps and a lot are 'memory' kind of games.
Ahh, and indoctrinated Apple user. .apk file types on Google. You'll find them in plenty of places besides Google App Store.
Search for
"City hall" in German is "Rathaus" Kinda explains a few things......
Hey, remember 1945? Don't make me open up another can o' whoop-ass on you.
"There is no god but allah" - well, they got it half right.
Google is your friend and, failing that, a rooted Android user is your friend. (Apps downloaded from Google Play are internally stored as... .apk files.)
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
In this case, the trademark applies to "games". Note the lack of distinction between board games and computer games.
So, the people who created "Settlers of Catan" (tm) can act upon another company bringing out "Settlers of Catan (tm), the computer game", using trademark law.
And memory-type games with memory in the name have little chance in court, because there *is* substantial risk of confusing the two, even if the game isn't an outright copy.
Note that trademark law is usually very stupid, especially in the EU after the EU commissioners meddled with it, so no one really knows what to expect from a court case any more. Ravensburger knows this, they're counting on winning by complete intimidation. If they really do go to court it's even money they lose.
"You couldn't even be bothered to RTFS, could you? This is about a legal claim against Apple, it has nothing to do with them operating a walled garden (though I agree this is a bad thing)."
Oh! I thought he was referring to the Ravensburger game "Mystery Garden".
Do they own the trademark in question in every single country in the world? [...] they might have been happy to sell the app in those markets where there's no trademark infringement, but they simply can't, because there's only one channel to get apps to the users on iOS devices.
As an designer who works on iOS games, including one that just had a limited launch only in Canada, I can assure you this is untrue. In fact, many developers do "limited launches" in places like Canada, New Zealand, Australia, etc to gather metrics before doing a major launch in the states/worldwide. In fact, as a Canadian, I sometimes get screwed over when certain apps (or songs, or videos) are not available in the Canadian store.
Of course, nothing stops developers from selling their app in every country's App Store on the planet if they want. Even if you don't translate it, it can still produce sales, and some cultures have no (or maybe just little) problem with generating sales for english-only games. But the key is that developers do have the choice to only sell in certain countries, so if they don't do their of research (which is of an unreasonable amount for a smaller dev, in some cases), this article is a prime example of what can happen.
You misunderstood what I meant. Regardless of whether you as a developer ask Apple to constrain your app to a specific country, Apple itself, as a corporate entity, still operates in all those other countries where trademarks do apply, and can be sued over them in those jurisdictions. What's needed is some kind of local app store that's not only restricted to a particular country, but also operates entirely within that country, and can therefore ignore IP issues elsewhere altogether. Which means that it must not be run by Apple.
First of all. It's not a valid claim until a judge says it is. This was just a complaint. Just because Apple is following it doesn't mean it's valid. It doesn't even mean Apple thinks its valid. It just means Apple would prefer to tell developers not to use the name than to run the risk they'll get sued.
Descriptive terms are not valid trademarks. Apple should use judgement in assessing the validity of a claim and tell the trolls where to go without bothering developers who are plainly not attempting to confuse the customer by using a descriptive term. They should also consider whether they want to keep trade mark trolls actively trading on their app store.
But the fact that the claim so quickly moves through that cybersystem has everything to do with the design of the walled garden.
The difference being the developer get's to defend themselves.
I'm pretty sure that trademark law hasn't changed that much.. perhaps in Germamy they still follow anal-retentive business practices, but in the rest of the world, a name of a business isn't considered to be infringing if the main business of the company is in a completely different field.. Hence.. "Apple" computer, and "Apple" records. The only reason there was ever a case of "two Apples" was because of Apple's entering the music industry (with iTunes), and, it was, I believe, settled in Apple's favor (Perhaps they settled out of court, I don't know).. In this case, Apple doesn't make jigsaw puzzles (perhaps they're worried about being considered a "gaming" company.. They shouldn't worry about ever being considered that ;-) This knuckling over would never have happened with were Steve Jobs still in charge..
You couldn't even be bothered to RTFS, could you? This is about a legal claim against Apple, it has nothing to do with them operating a walled garden (though I agree this is a bad thing).
It kind of does. Ravensburger serves notice to Apple and EVERYONE gets served. If Ravensburger had to serve notice to each developer they felt was infringing, they might not be so eager to pursue this. Especially since most of those developers would want Ravensburger to at least hit up a judge for confirmation.
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I'm going to trademark the most common letter in the English language, 'e', and sue everybody who uses it.
On a side note, I'm amazed that Apple didn't fight that like crazy.