Apple Nixes iPad Giveaways 388
KingSkippus writes "According to a story at CNN, Apple has begun enforcing third party promotion guidelines (PDF) that, among other things, restricts organizations from giving away iPads, using the word 'free' to describe any Apple products in a prominent manner, or promoting giveaways of iPod Touches in lots of less than 250 and with Apple's explicit approval."
Free Apples! (Score:5, Funny)
Eve enjoyed it...
They did what now? (Score:3, Insightful)
You can't prevent someone from giving your product away. If they bought one, you can't keep them from giving that product to someone else.
captcha: astound
As in, I am astounded that they think this can possibly work.
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Re:They did what now? (Score:4, Insightful)
You can't prevent someone from giving your product away.
No, but Apple could chose not to ship you anymore iP[a/o]ds. This is targeted at retailers trying to use the products in a promotion to get customers, not at a normal user who wants to give their device away to a friend (although I'm sure that they've already developed DRM to do just that).
Apple is probably doing this as a proactive maneuver to protect their brand name from being cheapened.
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Gotta take that a step further...
iP[[ad/od]/hone]s
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Re:They did what now? (Score:4, Insightful)
Don't you mean:
iP([ao]d|hone)s
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Don't you mean: iP([ao]d|hone)s
I was going to say the same thing. I can never understand why people don't take the time to learn something as easy as regular expressions....
Re:They did what now? (Score:4, Funny)
(Doesn't mean I wouldn't like to get some, but I can't afford any of them.)
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This is targeted at retailers trying to use the products in a promotion to get customers, not at a normal user who wants to give their device away to a friend (although I'm sure that they've already developed DRM to do just that).
Did you even RTFA? It's about a TV station running afoul of Apple's "guidelines" - which I suspect wouldn't be enforceable, except for the use of their proprietary Myriad Set font being copyright 'n' all.
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But it isn't just giving your device away. It is using the device for your own advertising/profit. As several other posts mention it is against copyright law to devalue someone else's copyright.
Quit drinking the Kool-Aid.
Did this business pay for the iPads? Yes.
Did this business own the iPads? Yes, because they bought them.
Can you do anything you want with your own property, including giving it away to promote your business? Yes.
LK
Re:They did what now? (Score:5, Insightful)
No, but Apple could chose not to ship you anymore iP[a/o]ds. This is targeted at retailers trying to use the products in a promotion to get customers, not at a normal user who wants to give their device away to a friend (although I'm sure that they've already developed DRM to do just that).
A small bank decides to run a "win one of 5 iPads" competition to new customers. How is Apple going to stop them from sending someone down to the local department store to buy them? (Or five staff to different stores if they want to be sneaky!) Heck, is Apple going to start interrogating every shopper in an Apple Store? "Admit it! You're going to give this way in some filthy raffle aren't you, Miss Whatever-your-name-is! And I bet that's not even a real beard!"
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Re:They did what now? (Score:4, Insightful)
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Whose trademark were they worried about, the car company's or George Lucas'?
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I highly highly doubt that Apple can do anything about this. If a bank goes to a retail shop, picks up five iPads, and then advertises that they're giving away real iPads(*) to 5 lucky people who take out brand new loans in the next 30 days, ((*) iPad is trademark of Apple (**)) there is simply nothing for Apple to latch on to.
Check that literature closer - I bet that "used with permission" rarely shows up. (**) "not us, you moron" -- the disclaimer is to avoid making it sound like the iPad is their own t
That's not the way trademark law works. (Score:4, Insightful)
Of course, anyone can sue anyone for anything, but Apple would have to prove that the marketing was done in a manner to make it appear that Apple endorsed the contest; simply advertising that you are giving away a product by the name of the product is not sufficient.
Re:They did what now? (Score:5, Informative)
It won't work. You can use someone else's trademark legally to describe the product of that company, there's plenty of case law to back that up.
Re:They did what now? (Score:4, Interesting)
You want case law? Levi's prevented Tesco selling their Levi jeans in their store. Not by cutting off supply... they couldn't do that as the jeans were bought on the grey market. But by using their trademark rights.
http://www.managingchange.com/dynamic/levi.htm [managingchange.com]
(Read all the way to "Levi knocks out Tesco in round 3", don't stop at the first paragraph, or you'll get the wrong impression.)
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So you can give away the iPad, but you cannot say that you are giving away the iPad.
Another example of how fucked up intellectual property law has become. The sooner IP becomes a discarded relic of a bygone era, the better. All of it, top to bottom, gone-ski.
The only people that would lose out if intellectual property law disappeared tomorrow are a certain group of lawye
Uses of ``intellectual property'' law (Score:3)
True, copyright needs a major overhaul---it's outlived its usefulness in its current form. Arguably, patent law is even worse—certainly in the matter of patenting software.
Trade
Re:They did what now? (Score:4, Informative)
Well they are not assured victory in this case. Trademark gives you certain rights and remedies, but I think there is wiggle room here:
If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. 1114, 1125. The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).
That's pretty clear. Intent is big part of the decision process as well as marketing channels.
Some courts have recognized a somewhat different, but closely-related, fair-use defense, called nominative use. Nominative use occurs when use of a term is necessary for purposes of identifying another producer's product, not the user's own product. For example, in a recent case, the newspaper USA Today ran a telephone poll, asking its readers to vote for their favorite member of the music group New Kids on the Block. The New Kids on the Block sued USA Today for trademark infringement. The court held that the use of the trademark "New Kids on the Block" was a privileged nominative use because: (1) the group was not readily identifiable without using the mark; (2) USA Today used only so much of the mark as reasonably necessary to identify it; and (3) there was no suggestion of endorsement or sponsorship by the group. The basic idea is that use of a trademark is sometimes necessary to identify and talk about another party's products and services. When the above conditions are met, such a use will be privileged. New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992).
That's some precedence against Apple. If XYZ store was giving away 10 iPads in a giveaway for all purchases over a certain amount, Apple would have to fight very hard against preventing that and would most likely lose the case.
If you're not selling the product, but just giving it away, then Apple is not automatically correct here. IANAL, but I can read the portions of the laws above. I don't think Apple is right to be messing around with free giveaways when their is no intent to damage a trademark (ie, the Anal Bead store giving away anal bead wrapped iPad boxes), and the likelihood of the consumer believing that all free give aways are explicit evidence of Apple's sponsorship of the event.
I can't agree with your assessment. Sure they might have IP staff, but that does not mean they also don't play the strategy of "we can just bully the smaller people even when we know we are wrong". Many many corporations do so. Nissan, Monsanto, Oil & Gas, Walmart, etc.
So I don't think it works because of what I understand and can read about trademark law.
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Costco is irrelevant though. in Costco, the copyright issue was based on items imported into the country by someone other than the copyright holder. Costco pitted 17USC 602(a)(1) against 17 USC 109(a). 602 covers the importation, while 109 codifies the first sale doctrine for "copies made lawfully under this title".
in this hypothetical case, apple, the copyright holder, has already lawfully imported the items into the country, so 602 doesn't apply. Since 602 was what Costco was decided on, it wouldn't apply
Ok? (Score:2)
Ok so they don't want organizations to buy iPads for people!? Why?
Re:Ok? (Score:5, Insightful)
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You have to understand. Who wants to buy an Apple product only to turn around and see some fanboi with one. How are you supposed to feel superior to them if they have one too.
There. Fixed it for you.
Re:Ok? (Score:5, Interesting)
Have you not seen "FREE iPad" and FREE iPhone" spam? Real spam in emails and forums, but also just endlessly repeated web-adverts. It pisses people off. Apple don't want that bad-will to reflect on their products. The reputation of the products and the company are worth far more than the piddling amounts of product that promoters would buy from Apple to run these promotions. Especially as most of them are scams.
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They pretty much ARE all scams. They WILL give away a few free iPads/iPods/etc., but to very few people. The purpose of this is to create a small group of folks who will insist to their friends that they DID win one, and that the scammers aren't lying! As a result, thousands more people sign up to win, and as a result, the companies get boatloads of personal information, credit card referral checks and so on. What's better for a scammer than free advertising where a friend tells another that it's legit and
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Because "CHEAP iPad" and "PAY NOTHING FOR iPhone" will be any better? This isn't going to hit the scammers in any way, and it's not as though current promotions are legitimising those scammers either.
Enforceability? (Score:3, Insightful)
Is there any legal weight behind this, or is this just gesturing on Apple's part? It certainly seems like Apple shouldn't have any control over what I do with my iPad once I've bought it; no matter if I give it away for free, stick it in a blender, or install my own bootloader. It's certainly their prerogative if they want to say that any of those things void my warranty, but I don't think they can enforce any of their demands on me.
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Can they enforce what you do with an iPad? Not legally. They can do some PRACTICAL things, and they aren't necessarily doing criminal things to stop you... but the things they can do to keep you from using, selling, breaking, or whatever with your iPad after you buy it are pretty short.
Now, there IS some authority that attaches to advertising that uses their trademarks... but, AFAIK (IANAL - don't trust legal advice you get from the internet) as long as you're not claiming to be Apple, claiming to be asso
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Now, there IS some authority that attaches to advertising that uses their trademarks... but, AFAIK (IANAL - don't trust legal advice you get from the internet) as long as you're not claiming to be Apple, claiming to be associated with Apple, or spreading misinformation about their products, they don't really have much legs to stand on.
No. Apple have control over their trademarks. There are fair use exceptions, such as if you want to use the name of a product to identify it in a review. But if you are promoting your own business by running a promotion, and use Apple's trademarks as part of that promotion, that is straightforward trademark infringement - profiting from someone else's trademark without permission.
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For someone who acts like they really know trademark law you're getting some very basic things wrong on this story.
What you describe above wouldn't be trademark infringement. You could argue that it is trademark dilution.
Some juridictions recognize nominative use as an affirmative defense to infringement and dilution but not all. Trademark law is not uniform. Not only does it vary from country to country but in the US there are even differing state laws on trademarks.
It's probable that if Apple actually
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They don't care what you do with your iPad. They care what Best Buy, Target, etc., do, and how it's marketed to the masses. Their enforcement, I suspect, is via allocation of additional supply.
Re:Enforceability? (Score:5, Informative)
but they can stop you from using the word "iPad", the Myriad Set font, and any other Apple trademarks when advertising the give-away.
No, they can't. They can only assert their trademarks to prevent market confusion - specifically, against a competing product with a similar name or similar branding. If you are giving away a genuine Apple-made iPad, there is nothing they can do to prevent you from saying that you are giving away an Apple iPad.
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They can only assert their trademarks to prevent market confusion - specifically, against a competing product with a similar name or similar branding.
A fact of which they are acutely aware, given that they used this argument to claim distinction from Apple Corps [wikipedia.org] (the Beatles' music label), on the grounds that they sold computers, not music. (Which, predictably, led to another lawsuit when they produced the iPod, iTunes music store, etc.)
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They only "won" the first suit on contingency that they made the distinction clear and never got into the music business. So the second suit was for breaching the result of the first as well as for stepping on the music company's trademark.
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You are confusing the details of being granted a trademark with the details of what rights you have once it's been assigned.
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They can only assert their trademarks to prevent market confusion - specifically, against a competing product with a similar name or similar branding.
That's not true. What you mention is part of the restrictions on what you can trademark, and over what region and industry/product category. But it has nothing to do with what rights you have once you have been assigned that trademark.
If you want to profit from using Apple's trademarks on promotional material, then you can only do it if they give you permission. Otherwise they can sue you. Apple's trademarks include the names of their products. There are fair use exceptions on using other peoples trademarks
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But if you are profiting from doing it, then that's not fair use.
Umm, people profit all the time by selling trademarked goods, and they advertise what they are selling by using the trademarks in a perfectly legal manner. Thankfully there's a limit to "intellectual property" laws.
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Are you a lawyer? Can you cite the case law to backup your claim?
He's not, and he can't. Look up, e.g., trademark dilution, tarnishment, etc.
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http://en.wikipedia.org/wiki/Nominative_use [wikipedia.org]
I think that covers it pretty well. Dilution, tarnishment, etc. don't apply.
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Apple has to have an actual legal basis to file a lawsuit. I'm saying they have none. It's rather hard to provide a citation to something that doesn't exist.
Trademark law protects against trademark infringement (which is using a competitor's trademark on your own product) or trademark dillution (which is using someone else's trademark on your own product in a different market that doesn't compete with the original). Both of these are illegal under numerous laws, starting with the 1946 Lanham act (15 U.S.C.
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Ty Inc. v. Ruth Perryman 306 F.3d 509 (7th Cir., October 4, 2002)
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Silly Fonts aren't even copyrightable let alone trademarkable. But a product name in a specific font is... that's called a logo. So yes they can prevent you from using "iPad" in Myriad. And they can enforce it on anything under the reasoning that official trademarks would indicate Apple's involvement when there isn't any.
The CD Companies tried to do this (Score:3, Informative)
In 2001 they were sued by the US DOJ for restraint-of-trade, price fixing, and forming an illegal cartel.
So go ahead Apple. I look forward to seeing you get the same treatment the record companies received. Especially now that the US Congress is investigating you. Not a smart move.
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You're comparing apples to morons. I mean oranges.
Guess which half you're falling under?
The CD Companies tried to do this, you say; so were sued for "restraint-of-trade, price fixing, and forming an illegal cartel". What made it illegal for them to do what they did (which isn't even kind of what Apple is doing here) is that they are COMPANIES. Plural. Instead of competiting against each-other, they were colluding against the public interest. A single company can not price-fix by themselves (that's called, l
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>>>COMPANIES. Plural.
Yeah so? Paypal was also slammed by the US DOJ (forced to refund almost 1 billion dollars back to their customers), and that was just one SINGLE company.
Breaking the law is breaking the law, whether it's multiple companies or just one. And right now, Apple is breaking the law and they will eventually be prosecuted (unless they wise up).
lolwut? (Score:2)
I'm not sure what they are going for here. If there is a give-away do they think it will water down the brand?
Re:lolwut? (Score:4, Insightful)
I'm not sure what they are going for here. If there is a give-away do they think it will water down the brand?
Not "water down"; but "devalue".
Personally, I was trying to figure this seemingly wrongheaded policy out myself. And I think I might have figured it out.
It's called "Perceived Value". Successful marketing in a "technology-driven" company is a curious combination of understanding current (and future) "technology", plus MBA skills, Communication skills, with a dash of Psychology. And the "Psychology" part of that equation tells the Marketeer that when people get things for free, they don't "value" them (or not as much). This, curiously enough, extends even to the people who don't actually receive the item; but even just could have received it.
Think about it: "Everybody" knows that, when when anybody, especially a business (who is, afterall, "in it for the money"), gives something away, that it is very rarely something they could have easily "made money on" (even if they don't actually sell that item themselves).
We are all somewhat "conditioned" to the fact that, only "worthless" items are given away as "Promotion". Often it is basically true. Sometimes not (like, for example, a car); but, in all cases, the "Perceived Value" effect remains in the back of everyone's mind. And Apple is smart enough to pay attention to those nuances of human behavior. it doesn't make them evil, or "dickish"; just perceptive.
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That's all true. But you're overthinking it. The major objective seems to be to kill as many of those those "FREE iPad" and "FREE iPhone" spams and adverts that piss people off. And are in many cases scams. They turn people off the brand in a way that comes before perceived value.
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That's all true. But you're overthinking it. The major objective seems to be to kill as many of those those "FREE iPad" and "FREE iPhone" spams and adverts that piss people off. And are in many cases scams. They turn people off the brand in a way that comes before perceived value.
Wow! I spent about 100 times more time typing my "thoughts" than having them; so I hardly think I "overthought" the matter, LOL!
But, your point is also valid. Let's just say there are both forces at play; because I think, in all actually, they are.
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There's a reason those scams work, and it's not because the brand is perceived as low value...
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That's what is killing the music industry, the perceived value of their product dropped to zero.
Actually, at least in the case of many "Talent du Jour" faux "musicians", the ACTUAL value of the product is somewhat less than zero!
But, I get your point, and it is somewhat true. When people don't have a physical thing, like a vinyl record, or a CD, to actually covet, and then purchase and OWN; something they can look over at, hold in their hands, look at the artwork, read the liner notes, etc., the "perceived value" of the entire experience is greatly diminished.
And I am very sad to report that there
only applies to special contract purchases (Score:5, Informative)
I looked at the terms linked in the article. It appears these terms are attached to special purchases from Apple solely for promotional purposes. (i.e., you contact Apple beforehand about buying some for a promotion and they give you a discount). In that case, you are accepting the contract. And it's not like they'd sell you 249 iPods then get pissy because you had fewer than 250.
But, I believe that if I buy an iPad at retail, I can use it in whatever promotional capacity I see fit as long as I do not violate Apple's IP.
In short: nothing to see here, move along
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But, I believe that if I buy an iPad at retail, I can use it in whatever promotional capacity I see fit as long as I do not violate Apple's IP.
Hmm isn't mentioning Apple, iPad or somesuch in your promotional material already a violation of Apple's IP? Unless they grant you permission for it, that is.
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Hmm isn't mentioning Apple, iPad or somesuch in your promotional material already a violation of Apple's IP? Unless they grant you permission for it, that is.
No, if you attribute the trademarks appropriately.
Re:only applies to special contract purchases (Score:5, Insightful)
Legal basis (Score:2, Insightful)
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These terms don't apply to normal users since normal users don't do promotions with advertising. If you're an organization doing a promotion with free Apple products and advertising however, then you're profiting by associating with Apple-branded products, so they have some say in that, just like celebrities have a say in how their likenesses are used. They want it to be clear that the promotions are not endorsed by them and that they won't continue selling to you if you choose to cheapen their brand by pla
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I wonder what legal basis they're using to "enforce" their policy towards giveaways. With software you can bind people with EULAs as part of the opening packaging/installing of software, but I wasn't aware that Apple was forcing people to sign contracts before purchasing their hardware. The best they could get away with would be trademark enforcement for promotional material but there's nothing I'm aware of that could restrict transfer of ownership of purchased goods absent a contract.
You should probably read the article, then, since this is about special contract sales.
That's okay. (Score:3)
Re:That's okay. (Score:5, Funny)
Give them away?
Re:That's okay. (Score:5, Funny)
Is this a straight line?
You buy six more, and put 8 cubes at each corner of your beowulf cube.
This is still slashdot, isn't it?
Only applies to special purchases. (Score:4, Interesting)
Such sheninigans (Score:4, Insightful)
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You make a cromulent point, sir.
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encheapin our over priced product. We must put a stop to it!
Aren't most competing tablets more expensive? iPads are the cheap ones.
Wow! (Score:2)
What a dick move by Apple!
PS> I love my Mac's but they are mine to do I as see fit.
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Indeed they are. But that has precisely nothing to do with this story.
What? (Score:2)
I'm usually ambivalent toward Apple, but if the people giving the items away legally purchased them, then they can dispose of them as they see fit. Fuck Apple.
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Depends on how you purchased them.
If you went to your local Apple Store/Best Buy or wherever iPads are sold and bought an iPad for the manufacturer's suggested retail price and then said, "The 2398th person in my store will win themselves this free iPad," there's nothing Apple can do. You're 100% correct.
If you contacted Apple directly and said, "Hey, Apple, I'm planning on giving away 32 iPads at a promotional event for my business. Can you cut me some slack on the prices?" Apple will be more than willi
penny bidding (Score:2)
Why don't they go after the Penny Bidding scams instead?
It's so sad that Apple has moved towards the Microsoft school of customer abuse...
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I wouldn't dream of it -- it's inconceivable! (Score:2)
"... using the word 'free' to describe any Apple products in a prominent manner."
Why would anyone do such a thing? Apple's seems to have put extreme effort into their proprietary products and services with the express purpose of keeping the idea of freedom furthest from my mind. Why anyone would attribute to them the honorable designation of "free" is beyond my ability to comprehend.
I encourage all in my home to be brave, and teach them all how to live under the full freedom afforded them in this land of free. Truly, to sign away any freedoms via Apple's EULA for a bit of entertai
nothing to see here (Score:5, Informative)
Don't get so excited this is only for Apple sanctioned promotions where the advertiser wants permission to use Apple trademarks in their ads. Every company has guidelines for this. This really only applies to Apple dealers and sellers. Your free to do whatever you want if your not using Apple's IP or under contract with Apple already.
Its not a EULA it's an advertising contract. it has nothing to do with consumers.
So one should say ... (Score:5, Funny)
Not the sort of PR Apple would want IMO.
Doctrine of First Sale (Score:2)
Apple truly is becoming The Evil Empire.
WTF? (Score:2)
Do they even have any legal standing to enforce using of a trademark to identify their own product? I mean, if they don't want it called an iPod, maybe they should have called it something else to begin with? If I want to promote my company be giving away free iPods, good luck with convincing anyone that I can't state it as a fact.
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WTF is wrong with Apple (Score:2)
Is not being successful (after nearly being utterly destroyed by Microsoft in the 90's) enough?
It makes sense (Score:2)
90% of the advertisements that show "Free [iPad/iPod/iPhone]" are targeted at kids scams to get people to click links and get infected with malware. Therefore, Apple does not want anyone to legitimize those fake sites by other people advertising the same thing. It is simply a method to help people hone a BS detector. If any legitimate organization wishes to award an iPad as part of a prize package, they can do that... they just cannot do it with "Click HERE to win a Free iPad".
Don't use the word Free??? (Score:3, Insightful)
Sieg Heil!
also (Score:5, Informative)
they have started enforcing user profile guidelines:
- people above 25 a body mass index of 25 may not use an iDevice in public. Nor in private in BMI > 30.
- iDevice users must at all times maintain perfect cleanliness and decorum.
- conversely, certain professions may *not* use iDevices: exotic dancers, janitors, butchers, fishmongers... if in doubt, contact a Genius, or point your iDevice's camera at you in your trade dress with your last paycheck, and ask "is this OK" twice. A genius will contact you shortly.
- customers thinking they caught a virus will report to their closer AppleCamp for training on how Apple does NOT have viruses. Repeated offenses will result in termination.
- your iDevice must remain pristine at all times. Don't allow it to become dirty, no stickers, no un-approved cases.
- iDevices may not be taken to non-approved areas. if your device starts beeping loudly with a screen flashing red, immediately get back to an approved iDevice utilization zone.
Apple thanks the California Bureau of Investigations for their help in enforcing those guidelines.
Easy Solution (Score:3)
Give away android tablets...
To cut off "legitimized scalpers"? (Score:5, Interesting)
Where I currently live (Singapore), the iPad 2 was advertised as "available now!" for several days, but if you ask for one the store will tell you they're out of stock.
Meanwhile we got so many ad promotions with the magic words "win a free ipad 2" everywhere we turned, from restaurants to supermarkets to banks.
Long story short: People who wanted them can't buy them for weeks because they've been snapped up by companies intending to give them away instead of selling them. I think Apple is simply preventing this situation from happening again.
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No, no. That day is when Steve Jobs throws chairs and people refer to them as $pple. Sheesh.
Re:It's official now. (Score:4, Informative)
I'm sure Steve Jobs throws chairs all the time. The difference is, he hits what he is aiming at, but then very large tattooed "Apple PR reps" secretly buries the bodies under the Infinite Loop late at night. And no one ever hears about it...
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You know, I don't agree, but I think we are getting there.
Bill Gates may be coming back to Microsoft, now that investors are calling for Ballmer to go away.
Imagine the hardcore tech geek drama if he makes some dramatic return and restores the company to the glory of it's previous hegemony based on vendor relationships and partner dealings. Just like Steve did...
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It's official: You need to grow up.
Re:Oh well, (Score:4, Informative)
And if you do so, and want to mention the products names in the promotional materials, then you'll need permission from Google or Blackberry. Or else they can sue you, just as Apple can.
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