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Michaelwagner
2006-03-27, 17:56
I found this interesting ... especially the bit where Apple (the computer people) claims they aren't distributing music online.

I pruned bits out to be on point for this group. You can read the original here:
http://www.pulse24.com/Business/Top_Story/20060327-001/page.asp


two of the world’s best known names head to court in London, England this week, over a company name and some music that’s not even available.

The titans in this drama are no less than the surviving Beatles and Apple, the computer giant created by uber-genius Steve Jobs.

[...]

five years after Jobs created his own Apple in 1976, the Beatles sued over the use of that name. They won an $80,000 settlement, garnering a promise that the Mac maker would forever stay out of the music business.

Fast forward to 1989 [...]The remaining rockers won a $26 million settlement that allowed the computer company to reproduce data on its products, with a vow that they’d never be involved in distributing music.

Which brings us to the present day [...] The Beatles’ old record label is still around and reps accuse the online firm of violating that agreement, reached in 1991.

At issue: whether the agreement made more than a decade earlier over tapes and CDs also applies to something no one could have foreseen – the rise of MP3 players and online music sales.

Apple argues it’s only swapping data online – not actual music, so it hasn’t violated the old deal.

Mark Lanctot
2006-03-27, 18:07
LOL!


And Apple argues it’s only swapping data online – not actual music, so it hasn’t violated the old deal.

Yeah, that argument works well with the RIAA in P2P lawsuits, I'll bet. ;-)

"But Your Honour, I wasn't downloading music, I was downloading data. It just happens to create music when I play it in my player - it's magic!"

funkstar
2006-03-28, 05:16
Once look at www.apple.com/itunes/ and it is pretty clear to me who is in the wrong.


iTunes 6
The best digital jukebox and #1 music download store

so thats a *music* download store, not a data download store :)

konut
2006-03-28, 06:14
Apple Computers has a service called iTunes Music Store that sells files it creates from artists that produce original music. Apples Records sells original music by artists it has under contract. If Apple Computers got into the business of actually creating music then I could see why there might be a problem. A word to the wise. If you're an artist who creates music while actually eating an apple, I'd keep it under your hat.

Michaelwagner
2006-03-28, 06:52
the quote is

a vow that they’d never be involved in distributing music.
not that they wouldn't hire and record musicians under contract.

Apple's point (the British Apple) is that once Steve's Apple starts distributing music, it's too similar in brand to the British Apple that distributes music.

It's at the retail end that brand distinction is important, where the consumer picks up a song and says "Oh, hey, this tune's from Apple" and is likely to be confused about which Apple it is.

The fact that one Apple actually signs artists and the other only copies music files prepared by others is irrelevant at retail (the artists care, no doubt, but that's irrelevant to branding).

funkstar
2006-03-28, 07:20
The heart of the problem is that Apple Records never liked Apple Computers being called Apple at all. They eventually agreed to live together as long as Apple Computers never ventured into music, which they now have.

I'm sure there will be a lot of legalese describing what Apple Computers can and cannot do as per their settlement in 1991. The question is not if you can confuse the two companies but whether Apple computers have broken the previous agreement.

To me it looks like they have. but then i'm not a lawer or a judge :) (appart from of character, and a bad one at that)

Michaelwagner
2006-03-28, 07:55
The question is not if you can confuse the two companies but whether Apple computers have broken the previous agreement.
True. And a good point. With that said, it is at heart an agreement that came out of a brandname dispute, and brand name disputes are generally about whether a reasonable customer could confuse them.


To me it looks like they have.
Me too.

But that wasn't my point in posting. They're using the old p2p arguments that, in other venues, they've argued against.

"It's not music, it's just bits."

Brian Curtis
2006-03-28, 10:36
The article posted mis-quoted what Apple Computer is actually
arguing. This is from an article in Tidbits:

"One of the interesting developments of Apple Corps' current lawsuit
is that previously undisclosed details of the companies' 1991
settlement have become public. In 1991, Apple Corps agreed to let
Apple Computer use its own marks on items which fell within Apple
Corps field of use (e.g., entertainment), so long as Apple Computer
didn't sell "physical media delivering pre-recorded content." An
example in the agreement bars Apple Computer from selling a CD of
Rolling Stones songs.
<http://www.hmcourts-service.gov.uk/judgmentsfiles/j2468/apple-v-
apple.htm>

As most people know, the iTunes Music Store doesn't sell physical
media: it sells digital tracks which customers download and play on
their computers, an iPod, or (with some determination) other music
devices. The main question before the U.K. court is whether, in legal
terms, those digital versions of recorded audio constitute "physical
media." Some analysts say Apple's iTunes service falls safely within
the bounds granted to Apple Computer outlined in the 1991 agreement;
others say Apple Corps will walk away with a gargantuan ruling."

http://www.tidbits.com/tb-issues/TidBITS-822.html#lnk5

kdf
2006-03-28, 10:47
Apple and Apple are both wrong. They should not feed lawyers. It is
an overpopulated species already, and this just makes them even more
prone to encroaching on human populations.
-k

funkstar
2006-03-28, 11:40
very well said kdf :)

I do believe that Apple Computer have, in the past, sold "physical media delivering pre-recorded content.". I could be wrong, but didn't the special edition black and red U2 iPod come with their new album pre-loaded onto it? I'm pretty sure an iPod constitutes "physical media" and love them or hate them, a U2 album is "pre-recorded content" :)

of course all this will take months if not years to hrash out in the ocurts anyway

Ed
2006-03-28, 15:14
"Michaelwagner"
<Michaelwagner.25dudn1143554101 (AT) no-mx (DOT) forums.slimdevices.com>
wrote in message
news:Michaelwagner.25dudn1143554101 (AT) no-mx (DOT) forums.slimdevices.com...
>
> Apple's point (the British Apple) is that once Steve's Apple starts
> distributing music, it's too similar in brand to the British Apple that
> distributes music.
>
> It's at the retail end that brand distinction is important, where the
> consumer picks up a song and says "Oh, hey, this tune's from Apple" and
> is likely to be confused about which Apple it is.

Sorry, but that's where the argument goes south. I don't see sweeping
confusion in the marketplace here. Is *anyone* confused? Anyone?

Didn't think so.

Ed
89CamaroZ28 (AT) nowherenow (DOT) com

Michaelwagner
2006-03-28, 17:52
Interesting Forbes article. Seems the lawsuit started 2 1/2 years ago.

http://www.forbes.com/2003/09/12/cx_ah_0912aapl.html

From that article:

in 1981 the two companies signed a secret pact giving Apple Computer the right to use the Apple name for computer products, but reserved for Applecorps the right to use it for music-related enterprises. Apple Computer also paid a still-secret sum for the privilege.

So it seems there are many different versions of what's actually in that deal. Guess we'll just have to wait and see ...

Michaelwagner
2006-03-28, 17:57
That URL got folded somehow ... should be
http://www.hmcourts-service.gov.uk/judgmentsfiles/j2468/apple-v-apple.htm

And in this article, one line stood out for me:

http://www.tidbits.com/tb-issues/TidBITS-822.html#lnk5

It might seem odd for two companies to have the same name, but in legal terms, there's no fundamental problem with companies using the same name or trademark so long as it doesn't confuse consumers. In practice, this usually means they can't be in the same business (or in related businesses) and/or operate in the same markets.

Jacob Potter
2006-03-28, 19:35
On 3/28/06, funkstar
<funkstar.25e7t01143571502 (AT) no-mx (DOT) forums.slimdevices.com> wrote:
> I do believe that Apple Computer have, in the past, sold "physical
> media delivering pre-recorded content.". I could be wrong, but didn't
> the special edition black and red U2 iPod come with their new album
> pre-loaded onto it? I'm pretty sure an iPod constitutes "physical
> media" and love them or hate them, a U2 album is "pre-recorded content"
> :)

I think the U2 iPod came with a coupon to get all the songs off
iTunes. I thought it was strange not to just preload them, but I guess
they had a good reason...

- Jacob

rick's cafe
2006-05-09, 04:08
for those interested in the result of the case see this link
http://www.timesonline.co.uk/article/0,,200-2171128,00.html

Michaelwagner
2006-05-09, 04:20
Sadly, it seems the probative issue, is a digital stream of data music, was not really answered in this law suit.

The main argument seems to have been that "even a moron in a hurry" could tell the logos apart.

jonheal
2006-05-09, 04:25
Apple and Apple are both wrong. They should not feed lawyers. It is
an overpopulated species already, and this just makes them even more
prone to encroaching on human populations.
-k
As far as I can tell, Apple Music/Apple Records/AppleCorps does not actually sell music. They're nothing but lawyers at this point, circling around, looking for meat.

Michaelwagner
2006-05-09, 04:29
It does seem that way, doesn't it. Sad, really, considering where they started out.

Marc Sherman
2006-05-09, 04:50
Michaelwagner wrote:
> Sadly, it seems the probative issue, is a digital stream of data music,
> was not really answered in this law suit.
>
> The main argument seems to have been that "even a moron in a hurry"
> could tell the logos apart.

I find that quite surprising -- I didn't think this was a TM case at all
any more, but rather a breach of contract case, where Apple Corps was
accusing Apple Computer of breaching the agreement they came to at the
settlement of the last round of TM disputes.

- Marc

cliveb
2006-05-09, 04:53
The main argument seems to have been that "even a moron in a hurry" could tell the logos apart.
Apple Computer clearly knows how to characterise its clientele.
Only a moron in a hurry would shop at ITMS.

Michaelwagner
2006-05-09, 05:07
I find that quite surprising -- I didn't think this was a TM case at all any more, but rather a breach of contract case, where Apple Corps was accusing Apple Computer of breaching the agreement they came to at the settlement of the last round of TM disputes.
Me too. Maybe the link supplied treated the legal issues too lightly, but the writeup (as I understood it) seemed to imply otherwise.

Siduhe
2006-05-09, 05:17
Michaelwagner wrote:
> Sadly, it seems the probative issue, is a digital stream of data music,
> was not really answered in this law suit.
>
> The main argument seems to have been that "even a moron in a hurry"
> could tell the logos apart.

I find that quite surprising -- I didn't think this was a TM case at all
any more, but rather a breach of contract case, where Apple Corps was
accusing Apple Computer of breaching the agreement they came to at the
settlement of the last round of TM disputes.

- Marc

The full judgment is up on HMCS:

http://www.hmcourts-service.gov.uk/judgmentsfiles/j4226/apple_v_apple_hc03c02428_0506.htm

My understanding is the same as Marc's - that the essence of the case was whether the use of the logo by Apple Computers in connection with ITMS was a breach of agreement (on the proper construction of the words "on or in connection with" delivery of music content) - rather than being a claim that two similar and confusing logos were being used as in a normal trademark case.

rick's cafe
2006-05-09, 05:39
indeed that was also my understanding and seems to have been the nature of their argument.. however the Judge seems to have ruled on the basis of there being a distinction between ITMS and music delivery / production .. i think it is a very grey area in terms on the breach of the original agreement... the proposed appeal is likely to have good prospects ...IMHO