The Many Faces of iPad: Fujitsu & STMicro Take on Apple
Apple is in danger of being made subject of a lawsuit by Japan’s Fujitsu and European chipmaker STMicroelectronics, in the wake of Apple’s adoption of the name “iPad” for its latest tablet PC eye candy. “iPad” has been a registered trademark by STMicro since 2000 for its semiconductor technology. For Fujitsu’s part, it is claiming that it created a palmtop computer of the same name, launched internally for use by its shop assistants beginning 2002. At present, Fujitsu has a pending application for the use of the trademark.
There are other companies that hold rights to use “iPad” as a trademark for products under certain categories, including Siemens for engines and motors, and Coconut Grove Pads for padded bras. These trademark infringement issues bring us back to 2007, when Apple introduced the iPhone to the public. This caused Cisco—registered owner of the name—to go to the courts. The matter was later settled when the contenders agreed to own the name jointly, for undisclosed terms.
Asked what STMicro intends to do, its representative said they were studying their options. Fujitsu’s official statement said: “[The company] is aware of Apple’s iPad announcement and the possible infringement on our trademark . . . We are currently discussing our options with our trademark counsel and have no further comment at this time.”
Trademark disputes – especially those that involve brand giants like Apple and Fujitsu or Cisco – are usually not enough to hinder the infringing company from launching the product, or to compel it to rebrand. However, if Apple loses its bid for “iPad” and Fujitsu is allowed to continue its application, or if Apple fails to justify that the two products are not confusingly similar, it will have no recourse but to buy the rights from Fujitsu.
The iPad Comparisons
Fujitsu’s iPad is a gadget that has a 3.5-inch screen, powered by an Intel processor, uses a Microsoft OS, and is Wi-fi and Bluetooth-enabled. Its purpose is to connect shop assistants and managers to sales and stock data. STMicro’s iPad, on the other hand, is less similar. “iPad” is an acronym for “integrated passive and active devices,” referring to the technology that used to manufacture semiconductors. But here’s the caveat: STMicro’s products are used in cars, washing machines, smartphones and mobile phones, among other gadgets. The implication: STMicro’s iPad technology could someday be applied to handheld devices like Apple’s iPad.
Fujitsu’s prior application in the US is dated March 2003. It was suspended after the US Patent and Trademark Office found a prior filing by Mag-Tek for keypads used to enter personal identification numbers. The application was subsequently declared abandoned, but was revived by Fujitsu in June 2009. A month later, Apple sent its proxy to the patent and trademark office of Trinidad & Tobago to register “iPad” and secure a priority date that it can claim when it applies for registration in other parts of the world. In the last quarter of 2009, Apple requested the US PTO for more time to oppose Fujitsu’s application. February 28 is the deadline for Apple to decide if it will contest Fujitsu’s application or not.
In an interview with Bloomberg, Fujitsu’s trademark lawyer, Hanify & King’s Edward Pennington said: “They probably need to talk to us and we haven’t had any direct communications with Apple,” and went on to describe Apple’s position as “awkward”.
Pirate Bay User Uploading Black Balls Gets His House Raided
A Pirate Bay user in his 20’s who uploaded a screener copy of a Danish movie named Black Balls (Sorte Kugler in Danish) has been tracked down and raided by the same anti-piracy group that recently shut down the EliteBits BitTorrent tracker. Although the man seems to have uploaded only four movies, the group is labeling him “a big fish”.
While conducting their usual monitoring of file-sharing networks, anti-piracy outfit Antipiratgruppen noticed that a user with a Danish IP address was uploading a screener copy of the Anders Matthesen movie ‘Black Balls’ via The Pirate Bay.
Antipiratgruppen collected evidence and asked a court to force TDC, the man’s ISP, to reveal his identity and home address. The court complied.
Armed with a warrant and a representative from the court, last week Antipiratgruppen carried out a raid on the man’s Herning home to gather evidence of his alleged offenses.
Maria Fredenslund, lawyer with Antipiratgruppen, was keen to emphasize the significance of the raid.
“We are waiting for the IT expert’s report on yesterday’s action, but there is no doubt that he is behind massive violations of copyright. We found and seized several hard drives, web server, etc. so it will take time to go through it all. The case is a good example of how a case which at first glance seemed modest, in fact, is about massive piracy. At least in Denmark,” she said in a statement.
Although Fredenslund said that they presume the man’s hard drives were filled with copyright content which made it a “very big case”, she also noted that the man in his 20’s had to her knowledge only violated movie copyrights online four or five times. A quick look at the user’s Pirate Bay account seems to confirm he has uploaded a handful of movies and a small number of music torrents.
Fredenslund told Danish media that Antipiratgruppen secured an injunction against the man so if he continues to share files he can be punished. Speaking of the man with DR.dk, she said that her group doesn’t intend to “sue him to hell” since they are “nice people”, but will need to see the volume of files traded in order to calculate the compensation required.
In November 2009, Antipiratgruppen announced that after losing several court cases they had largely given up on trying to get illegal file-sharers convicted, mainly due to their inability to gather solid evidence.
Indeed, the Danish courts have ruled several times that in terms of evidence, an IP-address alone is insufficient to prove guilt. However, the new tactic is to label people like this screener uploader and torrent site operators as “big fish” in order to get a warrant to seize physical evidence.
Fredenslund said that because this man was the first to make Black Balls available on the Internet, Antipiratgruppen had considered this as an aggravating factor which justified their action.
Equally, the recent raid on the operator of the EliteBits BitTorrent tracker was targeted at “traffickers”, she explained.
[thanks to conner395 and enigmax via cc]
Beckett Teen Sensations Twilight Magazine Loses Injunction
Summit owns copyrights and trademarks associated with Twilight and New Moon, the movies. Beckett sold two “fanzines” (labeled unofficial collectors’ guides, and not corresponding to my idea of a fanzine, but ok) reproducing numerous images from the films, along with trademarks and promotional images related to the films. In particular, Summit alleged that the fanzines used Summit’s stylized Twilight trademark on their covers; contained unauthorized reproductions of photos, including photos not available from Summit’s website and photos altered in violation of the site’s terms of use; contained removable posters and images of trading cards that were also unauthorized reproductions of Summit’s works. Covering the internet bases, Beckett also featured one of the fanzine covers on its Facebook pages and attempted to auction the printing plates for the covers on eBay.
Summit had little trouble with its copyright and trademark claims, apparently with little dispute from Beckett. Of note: the court rejected Beckett’s argument that Summit’s website gave Beckett permission to use many of the images. Beckett didn’t show likely success on that defense, as was its burden, most notably because it couldn’t explain the use of photos not present on the website. Moreover, the license here didn’t allow alterations of the photos (the terms of use said that users “will not edit, alter or modify any of the Content without Summit’s prior written approval”), and Beckett altered them, exceeding the scope of the license.
On trademark, the court accepted Summit’s argument that it owned a valid, protectable mark in a stylized, block-lettered TWILIGHT, and Beckett displayed a virtually identical mark in the fanzines, including on the outside front covers and pull-out posters. Moreover, Summit has licensed its mark for a “seemingly endless” list of goods, including posters, which both indicated the strength of the mark and the relatedness of the goods. In the absence of opposing evidence or argument, the court found likely success on the merits.
The court then presumed irreparable injury for both causes of action, despite Beckett’s argument that it had voluntarily ceased the troublesome activities, recalling the fanzines, terminating the eBay auction, and removing the offending cover image from its Facebook page. But as of the day Beckett’s opposition was filed, the fanzines were still “widely available” in retail stores and over the internet. Thus the dispute was not moot. Then, the balance of hardships followed: if an injunction was wrongly denied, Summit’s copyrights and trademarks are “at risk of being devalued,” while granting an injunction would just force Beckett to keep doing what it said it would (cease all offending activity). And there’s a public interest in vindicating copyright rights and avoiding confusion.
The court did agree with Beckett’s objection to the scope of the requested injunction, which would cover fair use as well as foul. Thus, any injunction needed to make express allowance for §107 fair use, and also needed to define Summit’s marks expressly, especially if any marks other than the stylized TWILIGHT were to be covered.
The following is the official statement from Summit Entertainment:
“Summit Entertainment acted to protect its rights in a situation which found Beckett Media using copyrighted and trademarked images and materials relating to the Twilight films for Beckett’s financial gain without an agreement in place with Summit to legally license the right to produce materials based on its film franchise. Beckett’s sale of standalone magazines under the name Twilight, and wholesale use of Summit’s copyrighted material in a commercial product, went well beyond the intended purpose of Summit’s publicity site. We applaud the court for its judgment in this matter.”
(Summit Entertainment, LLC v. Beckett Media, LLC, 2010 WL 147958 (C.D. Cal.))
[thanks to xploitme and rebecca tushnet via cc]
