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Smut, trademarks and Orville's lament

And just quis custardies Destiny Welles?

Iphone, uPhone, we all Phone together...or maybe not. Seeing as there's this big ol' trademark battle going on. You felt the need to fill us in on yet more of the detail:

I read your discussion of the iPhone trademark dispute and spotted a number of errors.

First, you claim that InfoGear never used the iPhone trademark to market an actual product. This is, in fact, incorrect. InfoGear announced the iPhone in 1997 and sold them between 1998 and 2001, when the product was finally discontinued by Cisco. I have no idea how many iPhones have been sold, but there were at least three distinct models, the last one introduced shortly before its demise, in December 2001. Not only that, but the iPhone was paired with a disconted (relatively speaking) ISP services and Cisco maintained a (static) support page for the iPhone.

I am somewhat ambivalent in claiming the second error. You claim, "Open a pet spa in Topeka, Kansas called "Dog Day Afternoon" and you have a trademark. You could stop someone else from opening a competing store with the same name." It does not take much imagination to figure out that this is not quire right--just consider every city or town that has a Chinese restaurant named "Mandarin House". Trademarks, unless federally registered are very territorial and local marks can even block national marks from entering a territory (consider the Burger King dispute in Illinois a couple of decades ago). Of course, iPhone would be a federal mark--in fact, it is an international mark, thanks to Apples efforts to register it in the UK, Australia, New Zealand, Japan, Hong Kong, Singapore and the EU, as well as Trinidad and Tobago (which you do mention). However, Apple did not start this process in September of 2006 or even in March, but at least as early as 2005.

Your comments about marks becoming generic (Kleenex, Sanka) also need clarification. Perhaps citing the Thermos case would help in explaining why other companies had to fight to prevent their marks from becoming generic. But "becoming generic" is not an issue in the iPhone dispute--for Apple to have a claim, it can only maintain that the mark has been descriptive or generic all along (hence the number of products that use iPhone as a descriptor). So Apple's claim is not like Thermos or Kleenex, but closer to the Swiss Army Knife dispute, in spirit.

You also claim that Cisco began to "make an iPhone product" in 2004. This is also incorrect--in fact, Cisco began making VoIP sets in 2004 that it only began marketing as iPhone on December 18, 2006. Prior to that, the products were simply described as "internet phones" or "dual-mode phones". Every product that was introduced as the iPhone line on December 18 had been previously marketed under an identical name without the iPhone modifier for anywhere between three weeks and two years. This can be easily verified by comparing pages for these products on Amazon.com with those on other official Linksys dealers. In at least one case, the Amazon page shows two similar photos of a product with and without the iPhone label.

You further write, "In fact, in May 1997, a California company called Cidco applied for a trademark in iPhone." This is odd! Cidco entered into a partnership with InfoGear in 1997, specifically to develop and market the iPhone, and, by then, InfoGear had already filed for the mark almost a year earlier.

In the "rights to trademark" section you wrote that a company may have a "presumptive right" to a mark if it is first to use it or to register it. This does not seem to be correct. Presumption certainly enters for first registration. First use means nothing without an established secondary meaning, does it not? And secondary meaning in this case is clearly with Apple (although the issue is more complicated here because Cisco actually has a registered mark).

You identify the Apple product as a "Smart Phone". However, just over the weekend, it was revealed that Apple's iPhone is, technically, not a Smart Phone.

At the end of the section, you wrote, "So let's look at Cisco's corner: it owns the registered trademark. It got it first. It makes a product called iPhone. It has marketed and sold it in commerce. The phone has something to do with the internet and talking to people. And up until the moment of the MacWorld announcement, it was in negotiations with Cisco to buy or license the trademark." You seem to have mixed up two statements--one about Cisco and one about Apple. This can be easily fixed by replacing the last "it"--the one after MacWorld--with "Apple". Still, the description is a bit simplistic. Alternatively, you can change the last sentence to read, "it was in negotiations with Apple to sell or license the trademark."

There is so much disinformation on this case already published in a variety of trade publications and on both Apple- and Cisco-based blogs, as well as some independent ones, that adding one more article--written by a lawyer, no less--with this many errors, is not helpful. I wish someone would sit down and take responsibility for cleaning up this mess and publishing a reasonably accurate account of the competing claims. I've been following the story very closely and even attempted to contribute something to the discussion by adding relevant material on Wiki. But, being a 2L, my opinion does not seem to carry much weight and there is a lot here that I do not know (in terms of legal standards, as well as simple corporate data). (I may be a 2L, but I am no spring chicken and do possess some technical background, which is why I do not hesitate to make these assertions.)

Victor


A UK tribunal has ruled that a US company with no UK presence breached the UK's Disability Discrimination Act because its computer based exam "discriminated" against a blind candidate:

This is dangerous territory. Rather than go to the effort of making their Web sites accessible to disabled people (many are in Flash, which makes it incredibly difficult just to view text on a small screen or television, even if your sight is 20/20), many overseas corporations (not just those in the US) may instead just block British IP addresses from accessing them - arguing that their site isn't targeted at British consumers anyway. Too many Web sites only deal with US/Canadian residents only (despite the content being available online), which is a blatant violation of the spirit of free trade. Much of this is due to our complicated tax laws. Imagine how much worse it could get if we had similar disability laws!

I would welcome international legislation that demands that text is freely accessible (and that nonsense like Flash is not used as the only means of accessing content). Flash should be used to enhance the Web, but I have seen many sites (e.g. Nokia's Nxx series pages) that mandate Flash. However, blind or deaf people are going to have difficulty justifying that sites like Youtube or iTunes are illegal - just because some people are blind / deaf does not mean that everyone is. This should be common sense, but I fear that common sense died a long time ago in Britain.

While it is important to defend disabled people and provide them with reasonable opportunities, it must also be borne in mind that the rest of us shouldn't have to pay a disproportionate price to accommodate their needs. Will all book publishers now be sued because they don't release Braille and audiobook versions of all their works? If the laws move in this direction, expect to find any material - printed or online - harder and harder to find in the UK; everyone in the UK will suffer in this case, not just disabled people.

Oliver


A man writes, apparently on behalf of all Americans, to allay our concerns that the Bush administration might be getting too big for its boots insofar as it seems to want to own space. We're guessing this was prompted by news that China shot down a satellite. Or might have. Or something.

Anyway - over to Douglas, who, in common with many of his people, seems to think that anyone criticising the US at all must want to speak Chinese/German/Russian. Delete as appropriate.

The US position on the peaceful and perhaps non-peaceful position on space is that of self interest as it would be for any nation. Our response is clerarly reprentative of the old british attitude we have incorporated into our military and non-military positions.

However unique to Americans is that we are workable but don't screw with our understanding that where freedom exists and personal accountability is required, industry and self achivement abounds.

This requires military might or tyrants will demand our rights. If you don't understand this position, then it is required that you study history and the achievements of those in history. Our founding fathers understood these things and we are to preserve them. We have assisted your nation in preserving them as well. Our greatest minds reveled in the teaching of your countries freedom thinkers such as John Loche and Algenor Signey. We believe as they did, that freedom and self rule is the right of all men and women. The price for our freedoms is represented in our sacrifices and undaunting courage. (Signey lost his head before publishing his treatees in the London Tower).

To the subject: The Americans have made substantial investments into space. Our technologies have opened up the world to freedoms and communications never thought possible. If we were to forsake that dominance, we may infact be sacrificing your rights to express your thoughts and expressions; even your politically correct penned anti-US retoric. Perhaps you would like to see the Chinese dominate your ability to communicate or even perhaps you would like to speak Chinese. Your think this isn't reality?

Standing up for freedom can look like a bully but it in no way represents wanting to be at war with our fellow nations. We would prefer to trade with them and unite in helping to absolve hunger, disease and oppression. This cannot be done by taking a weak position. Apeasement and compromise is a lesson you birts should have learned with Chamberlin.

Freedom is a call to action. Oppressors and fools is all that is needed to squander your rights. You have the unique skill and job to communicate as close to the truth as you can find. You can take this liability seriously or squander it with the thoughtless mark of an ignorant pennman. Show some respect for the blood of those that have fought for your rights to penn to the public without censor. Not with blind faith in US policies (as I don't agree with many of them) but with the belief that we both represent good nations with good intentions.

You are small and are shrinking country in a growing world. You are also shrinking with a lack of self understanding. Your remarks as well as others are lazy. For the benefit of your undertanding, China does not represent the best interests of world peace nor your right to express your opinions. Even when the British were getting there hats handed to them in the retreat of Dunkirk, your US believers were gearing up to lose our lifes to protect your freedoms and ours.

The power of your penn has the ability to share the thoughts of people you supposedly serve. Please do so with some regard for those that have some before you.

Douglas


Some of you profess to be troubled by our fabulous column from Second Life, penned by the inimitable Destiny Welles:

I've been a long time reader of the The Register and it's always been informative and fun, and god knows I love the BOFH stories. But when the good ol' vulture turns its beak towards sex in Second Life I can only shudder to think that obviously not so valuable reporting space is being dedicated to something which the Daily Mail would publish.

The occasional sociological article about Second Life is just about stomachable. But a regular column on how.. strangely enough, people on Second Life behave like teens in an IRC chat room or an adult RPG forum seems just a tad puerile.

It saddens me to think that like the goldenpalace.com of the gambling world buying cheese. You guys are now buying articles on virtual sex. It makes me virtually vomit.

Please, less articles about crap in Second Life and more about Technology in our first? hmm ?

Kun


Happily, readers are now writing to us with their comments on news stories that have appeared on other news sites. Behold:

p>Hi,

I just read an article at ZDNet (http://blogs.zdnet.com/microsoft/?p=111) about how Office 2007 would be emasculated if users failed to pass the "Genuine" test.

I think it is wrong to give someone so much power over your computer and I believe that the next class action suite from angry people who lost time and money because of it will show I am not alone.

But besides being wrong and potentially dangerous I believe it is a great move from Microsoft towards losing their grip on the private and small company's desktop. And therefor a move they are likely not to take. Unless of course they are arrogant enough to believe that no one has a choice anyway but to pay them.

How come I believe such idioty? Because most people I know own a pirate copy of office. It is the software they use at work and are familiar with but will not shell out CHF 500 to buy it. And I believe only a small minority of these people will buy a copy in the future.

These people mostly rely on "the guy who knows something about computers" among their friends for support and I believe that he (it's rarely a she) will tell them to download Open Office. It's just as good and it's free. Or, heaven forbid, use Google Office, but this is less likely.

The effect would be that the children of these home users will learn how to use Open Office and later be inclined to continue use it in their professional life. This is certainly not permissible from a Microsoft point of view.

Anyway, the market is shifting and that's a good thing. In ten years time, no one will care what OS their device is running on and it's likely not to be Windows.

British Telecom uses Linux for their Internet appliance and so does Neuf Telecom in France and hopefully others I don't know about. These appliances will stream movies to the TV's of millions of people and the day will come when you will be able to connect a keyboard to your HD TV. A resolution of 1920x1080 is great but even 1680x720 is good enough for a bit of word processing and spreadsheets. It's good enough for games anyway and that's what computers are for.

Is my analysis flawed? Don't I know nothing about the software market? Time will tell. But most likely Microsoft will not enforce their rules and let everyone use the software for free. Just like right now. I'll try to use a pirate version and I'll tell you about the outcome.

Regards, Micha

And on that happy note, we're going to stop rummaging around in the post bag. Frankly, we're scared at the prospect of what we might find. Back on Friday with more. ®

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