Watch out, Gwyneth (Apple v. Apple)
I refer to Gwyneth Paltrow's having named her daughter "Apple". Nowadays it's not safe to use that name. To-wit: the recent trademark dispute between Apple the record company and Apple the computer maker. The basic premise underlying the record company's claim is that computer-Apple is somehow violating their rights by offering music downloads via the iTunes service. Hogwash. The only legitimate basis for trademark law (see pp. 43-44 of this article) is consumer fraud. That is, a seller who deceives his purchaser may be violating the purchaser's rights. In the Apple v. Apple case, however, no consumers are fooled into using iTunes based on some deception by computer-Apple that the consumer is really dealing with the record-company-Apple. (And even if they were fooled, it would be the consumers that would be harmed--not Apple-the-record-company.)
Comments (12)
For desert this afternoon, I am going to have myself a steaming hot piece of malus domestica pie with a side serving of vanilla ice cream. Hmmmm, goood!
Published: March 29, 2006 11:00 AM
That explains why my ipod is made by 'Apple in California, Inc.'
Published: March 29, 2006 11:40 AM
Of course shortly after Apple was founded, the record company pointed out the problem and got a private agreement (contract) with the promise that Apple the computer company would not do anything related to the recording industry. But I guess voluntary private contracts don't apply...
Published: March 29, 2006 1:28 PM
And from the article I find some irony that suggesting IP isn't valid or licensed is "slander of title", and yet slander is not considered by many Libertarians as actionable.
But slander, gossip, etc. causes exactly the same form of fraud as the trademark example.
If LachmanBurgers planted stories to say RothbardBurgers were the cause of an outbreak of food poisoning, it could easily make people switch and save LachmanBurgers and ruin RothbardBurgers as consumers often have no basis of determining the accuracy of some claims, or such basis would be difficult and/or expensive.
Trademark is merely a pseudonym which bears what is accounted (literally) under "Good Will", or as cypherpunks might put it "reputation capital".
Rothbard suggests in his ethics that my mental impressions aren't the property of others, so you are right in that sense, but if the impression is wrong - if I think a bottle has a drink but has poison, I will be dead - but would the person who altered my mental impressions in this case - which would differ only in degree to a gossip who puts bad data into my mind about persons or businesses - be culpable in any way of my death?
Or put more simply, if Rothbard is right, my impression that LBurg is RBurg is merely my mistake, and if nothing is actionable about me believing some other error (slander) about Rburg, why would trademark confusion be, even if I got food poisoning from LBurg and would mistakenly blame RBurg and spread that impression?
RothbardBurgers may not be the injured party as much as the consumers are, but he is the focal point and instead of recovering the difference in a few hamburgers of potentially different quality for the individuals who bother, he could collect the entire sum, plus damages, and restore his reputation. It might not be precise principle, but a fiction convienient for accounting justice to treat RothbardBurgers as the victims of trademark violations (or slander or libel) instead of those whose minds are infected with bad data, not unlike a computer with malware.
Published: March 29, 2006 1:43 PM
Clarification - at it inception, ca 1981, Apple Corps (the Beatles holding company) sued the computer company, and the latter agreed to restrictions.
Instead of giving into sloth and my weak memory, I should have just Wikipediaed it:
http://en.wikipedia.org/wiki/Notable_litigation_of_Apple_Computer#Trademark_dispute_with_Apple_Corps
Published: March 29, 2006 1:48 PM
tz - if you can call an agreement reached after being issued legal threats (which, remember, always boil down to the threats of violence) "voluntary", you must have a different dictionary.
In my dictionary this is called extortion.
Apple Computer cannot be faulted for respecting that "voluntary" agreement for what it is worth - about the same as a used piece of TP.
As far as anyone concerned, Apple Computer never intended or tried to defraud consumers by pretending to be in any way affiliated with the bunch of IP lawyers called Apple Corps. Thus, what we have here is just another instance of State-generated victimless "crimes".
(In all fairness, Apple did some of that disgusting legal extortion on their own, notably against Digital Research).
Published: March 29, 2006 9:43 PM
A few comments:
Quincunx: "That explains why my ipod is made by 'Apple in California, Inc.'"
As far as I know they don't say that: they say made in China, but designed by Apple in California. My assumption has been that they are trying to dilute the negative connotation with it not being "made in America" (federal law requires them to say it's made in China, if it is), by saying that it is at least designed in American (California).
tz: First, I think averros' reply about extortion is right-on. Saved me the trouble.
Re tz's other comments:
First, he fails to see the libertarian problem with slander/reputation laws. And as for the problems with current trademark law--de-coupling it from some kind of fraud requirement; allowing the competitor, as opposed to the defrauded consumers, to sue--he just repeats mainstream wealth-maximization reasoning--that it's "efficient" to let the competitor sue as he's the "focal point," etc. etc. We've heard all this before but suffice to say for now that principled libertarians are actually interested in principles and individual rights, not with sacrificing them for the sake of the pseudo-scientific cuult of efficicienty optimization and wealth-maximazation.
Moreover, tz says: "If LachmanBurgers planted stories to say RothbardBurgers were the cause of an outbreak of food poisoning, it could easily make people switch and save LachmanBurgers and ruin RothbardBurgers as consumers often have no basis of determining the accuracy of some claims,..."
This is pure mainstreamism; but the word "make" here is the crucial error. Consumers are not "made" or "forced" to act on the comments of a competitor. It's up to them; it's their right. This is exactly why the "harmed" competitor has no right not to be "harmed" in this way--the consumers have a right to patronize them or not, based on whatever information they choose to consider.
"Trademark is merely a pseudonym which bears what is accounted (literally) under "Good Will", or as cypherpunks might put it "reputation capital"."
This non-rigorous repetition of mainstream metaphor does not justify current trademark law; moreover, with the extenstion of trademark law to cover things like antidilution of the mark, it has become decoupled from a real fraud basis.
Published: March 30, 2006 9:35 AM
Apple corp. had made a prior agreement in which Apple would stay out of the music business. Apple, the computer company violated the terms of an earlier deal, and should pay. Apple computer has/had a logo that infringed on trademark rights of the Beatles recording group, Apple corp. When the Beatles recording company thought of that original logo of the Apple they put the logo on their own product in order for it to be recognized with music, furthermore the music of the Beatles. Now when I think of the term "Apple" I think of I-pod which is music, and not the type of music I am supposed to be thinking of.
Published: April 4, 2006 7:09 PM
But Apple computer only agreed to that deal because of the immoral use of government force in the form of IP law. Ergo, it's not (morally) binding. Ergo, Apple computer has violated nothing and should not pay.
Published: April 4, 2006 9:09 PM
Regardless of opinions, the facts are that the Apple computer company violated an agreement. A decision was made about the trademark logo of this company and they had to pay damages, also in this decision an agreement was made. Apple computer was said to stay out of the music industry an agreement made with the Apple corporation. Apple computer violated this agreement by implementing certain music editing and recording devices on the computers they sold, ergo making the Apple computer a part of the music industry. Also, how do you view this decision as immoral?
Published: April 4, 2006 10:21 PM
They made the agreement under duress; i.e., threat of force to uphold Apple music's "IP rights" (trademark). Since "IP rights" don't exist, the threat was not of justified use of force, but rather of a criminal nature. Now, an agreement made under threat of criminal violence is not a valid agreement, don't you agree? [If I stick a gun to your head and promise to shoot you unless you sign an agreement never to do {whatever}, do you think you ought to be punished for doing {whatever} after I'm gone?]
Of course, they shouldn't have been in the trademark dispute in the first place, either.
Published: April 5, 2006 8:08 AM
Apple made a logo albeit very plain and simple but nonetheless it was their own, which was trademarked. For some reason Steve Jobs decided to do the same thing, but for his computer company, same name, and a modified logo. I am not understanding how this isn’t trademark infringement.
Secondly if the Apple Computer company thought they did not do anything wrong, why was there a settlement? And furthermore a contract which was legally binding saying they had to stay out of the Music industry. I do however agree that an agreement made under threat of criminal violence is not a valid agreement. But I don’t know how you can say that these were made under a threat of violence, either there is something that I do not understand here or this is just your own personal opinion. In my mind if someone gives in and makes a deal (Settlement) of an estimated $80,000 and a condition of staying out of the music industry, they are admitting guilt. (View “Trademark dispute with Apple Corps�)
http://en.wikipedia.org/wiki/Notable_litigation_of_Apple_Computer#Trademark_dispute_with_Apple_Corps
Regardless of what you think Apple Computers was did or didn’t do, they still made a contract saying they would stay out of the Music industry and with that condition in a binding contract you can not violate it without consequences. I don’t know how you can say that it was an “agreement made under threat of criminal violence.�
Published: April 5, 2006 11:26 AM