APPLE v. PEAR: Trademark Opposition

 Are you confused by the source of services represented by these logos?

 

        v.       

 

Apple recently opposed an application for U.S. Federal trademark registration of a pear logo design owned by Super Healthy Kids, Inc. The applicant owning the pear design has been pursuing registration for its trademark in connection with (1) a software application to organize and plan meals, evaluate nutritional content, create a recipe database, and manage purchasing ingredients; and (2) an online social network in the field of cooking, food and nutrition.

Apple’s mark is undisputedly a famous one. The major question (without reciting the entire opposition) for the U.S. PTO Trademark Trial and Appeal Board is whether the pear design “readily calls to mind” Apple’s logo and creates a similar commercial impression so as to cause a likelihood of confusion between the source of each mark’s products and services or to cause a consumer to believe applicant’s services are affiliated with or endorsed by, Apple.

Apple’s Notice of Opposition can be viewed HERE. Discovery has begun and this dispute may go well in late 2021 if not resolved between the parties.

 

Applicant has taken the dispute to social media. Applicant’s principal, Russell Monson, has asked consumers to sign a petition requesting that Apple drop its opposition against his company. The petition can be viewed HERE.  

 

While the petition will unlikely have any bearing in the opposition itself, such petitions might be a novel way of conducting surveys of consumers – if questions are carefully and neutrally posed – to become a less expensive way of conducting survey evidence to determine whether there is a a likelihood of confusion between trademarks. Further, if Mr. Monson gains enough signatures, will Apple be swayed into withdrawing the petition? Time will tell…

 

As of the date of this writing, the petition has 231,465 signatures.

 

Nothing herein should be considered legal advice. If you have a legal question, please consult a qualified legal practitioner.

U.S. Copyright Office Study on DMCA Safe Harbor Provisions Completed

In some instances, the U.S. Digital Millennium Copyright Act (DMCA), passed in 1998, provides a safe harbor (a limitation on liability) for internet service providers (ISPs) against liability for copyright infringement by their users. An ISP must meet all statutory requirements.

 

If you provide an Internet website where third parties are able to upload information, including (without limitation) videos, images, audio clips or data or if you provide a search engine, information location tools, or directories, you may be considered an ISP. As such, in order to take advantage of the safe harbor provisions of the U.S. Digital Millenium Copyright Act (“DMCA”), you must register with the U.S. Copyright Office. In addition, contact information for your designated agent and your Copyright Policy should be available to the public on your site(s). Through such registration, notice, and compliance with the DMCA generally, you may be able to avoid liability should a copyright owner allege infringement as a result of third party postings to your site(s). 

  

DMCA limitations on liability were meant to aid in the growth of Internet-based business. Time has certainly changed the way we view, use, and connect through, the Internet. As a result, the U.S. Copyright Office has been reviewing the DMCA to determine if it still meets the needs of copyright owners and online service providers. As of May 21, 2020, the Copyright Office issued its study of the DMCA.

 

The entire U.S. Copyright Office study can be viewed HERE.

 

Look for new legislation in the U.S. Congress concerning potential changes to Section 512.

 

Should you have questions regarding the steps currently required to gain safe harbor from liability for copyright content infringement for which you do not have control and do not monitor, please contact Judith Keene at 720-684-5375 or jkeene@hpdlaw.com.

 

Nothing herein should be considered legal advice. If you have specific legal issues, please contact a qualified practitioner.