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."
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.
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
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.
Re:only applies to special contract purchases (Score:3, Informative)
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:Such sheninigans (Score:2, Informative)
encheapin our over priced product. We must put a stop to it!
Aren't most competing tablets more expensive? iPads are the cheap ones.
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...
Re:They did what now? (Score:2, Informative)
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.
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.
Re:Enforceability? (Score:2, Informative)
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 without permission. But if you are profiting from doing it, then that's not fair use.
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.
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:The CD Companies tried to do this (Score:2, Informative)
>>>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).
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.
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.