Tuesday, November 3, 2009

This is Why

This is one of the reasons why the review process is so hard for Apple to get right. Apple has to make sure that every application not only doesn't use private APIs, but the applications must be legal in every jurisdiction that the iPhone is sold. That's likely the reason for not allowing nudity in App Store games even when Apple does allow movies with nudity in the iTunes store.

Movie studios create international versions of their movies. Movie studios have the budget and the motivation to tailor their products for multiple targets and to make sure that their movies do not violate any laws wherever they choose to sell them. Movie titles are often changed in translation to avoid trademark problems or to avoid offending the predominant culture in a specific country. Different versions of the same movie often have different scenes, sometimes with certain scenes available in the U.S. release being cut or altered in the version released for some other countries. In some rare cases it goes the other way, and a scene that the MPAA forces a filmmaker to cut or alter, is kept in releases for countries who don't share some particular taboo or social more with the U.S.

When you realize the true magnitude of the problem facing the app review team at Apple, it's hard not to cut them a little slack. Well, unless one of your apps happens to be stuck in review at the moment, in which case it becomes considerably harder to cut them any slack since you are being directly impacted.

So, anyway. Apparently, America is not the only country with asinine IP laws and large, soulless corporations willing to wield those laws as a weapon to protect profits.

I don't know anything about German trademark law, but if Ravenbursger's claim has any merit, this could lead a whole slew of new written or unwritten rules about what can go on the App Store. I don't see Apple taking a fine grain approach and removing offending apps from, for example the German store, but leaving them in the others. It would add considerable complexity to an already difficult and thankless job. It's not going to happen: They're either going to tell Ravensburger to stuff it, or they're going to remove every possibly infringing application from all app stores.

In US trademark law, Ravensburger's claim would likely not get very far. Although there are some exceptions, in the US, it is not possible to trademark generic terms. Certainly, this game has existed, and has been called "Memory" (for that's about the only skill it requires) since long before Ravensburger started selling lame licensed character variants of the game.

Does anyone have any idea whether this claim has any merit under German trademark law?

It is unfortunate, especially for the small, independent business, that doing business internationally is such horribly complex thing.


pippin said...

Not sure.
The problem here is that although German trademark law is generally stricter than US law (in the sense that you will find it harder, as a company, to claim a trademark against someone), in this case "Memory" is not a generic term since "Memory" doesn't mean anything in German.
It's like you would probably have a chance to get a claim on "Ged├Ąchtnis" in the US.
There was a lengthy case in the 90s where someone sued Microsoft over the term "Explorer" in Windows. I believe it was eventually turned down but only because the products were dissimilar.

I think eventually Apple doesn't have any chance but will have to consider local trademarks around the world. After all, you simply cannot assume that US trademarks are necessary global ones.
It's like the "Nike" case (Nike did a biiiig effort to claim their logo as a brand for the 92 Olympics because they were one of the main sponsors but did not (and I think still do not) hold the right on the name "Nike" in Spain.

Jeff LaMarche said...

That's a really good point and it didn't even occur to me. Although, it's interesting to point out that this German company also claims the trademark when they sell their products in the U.S., where memory is a generic term.

And it all just goes to show what a horribly complex task Apple has burdened themselves with.

Unfortunately, as an online store, they're probably not protected in most jurisdictions the way an ISP would be in most places. just like how a bookstore, not just the publisher, can be arrested for selling obscene material, Apple can get in trouble for what they allow on their store. In a perfect world, they could just let anything go on the store and it would be the software publishers responsibility to stay legal. But, we don't life in a perfect world, and that's just not the way the system works in most places, including here in the U.S.

Geoff Pado said...

Although there are some exceptions, in the US, it is not possible to trademark generic terms.
This isn't entirely true. It's perfectly legal to trademark generic terms, but only for specific areas. For example, Ravensburger can trademark "memory" to mean "a matching game where cards are flipped over to reveal..., etc." For example, the Mac development company Panic has a trademark on their name, despite panic being a generic English word.

pippin said...

Well, actually obscene material would be less of an issue over here since in the end you can do it (especially in an online store) and just have to remove it as soon as you get notice of it. Nazi logos would be a different issue since their use is illegal (and not just offensive) in Germany, the US AFAIK doesn't care and in India they might be a religious symbol... It's a complex world we are living in.
WRT things like these Apple's approval process actually hurts more than it helps because that way they can never say that they did not have notice about what they sell.

Stuart said...
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Stuart said...

Developers can localize their title that is shown in iTunes in different App Stores (Germany being one), and therefore change it for Germany.

LKM said...

"Apple has to make sure that every application not only doesn't use private APIs, but the applications must be legal in every jurisdiction that the iPhone is sold."

But Apple doesn't seem to do that, and I don't think it's their job to act as a kind of preemptive trademark police, either. This doesn't seem to have anything to do with the review process.

Jeff LaMarche said...


Yes, if the term has a secondary meaning, and that meaning didn't exist before the trademark. I think you'd be hard pressed to make that argument here. I'm almost certain you could prove that the name "memory" as the name of a game where you try and match flipped over cards predates their trademark registration.


I'm not saying they're trying to be trademark police, I'm saying that they are protecting themselves from liability to the best of their ability. They're not going to protect other companies' interests without reason, but they are going to protect themselves, and that will likely mean removing or not approving apps that infringe trademark laws about which they've specifically received notice, as in this case.

Let's be frank: Apple's not going to fight Ravensberger or anybody else on your behalf.


Can localize. Should localize. But Apple is not going to expect all developers to know and comply with all local laws.

Now maybe the Memory game developers can use that to get around this restriction, but who knows? Will Apple allow that? Again, who knows?

TC said...

Is there any legal basis for a German company to be able to assert a German trademark outside of Germany (or, maybe, the EU)? If that were the case, it should have been simple for Nike to do what they wanted.

Is pulling the targeted applications from the German App Store sufficient to be legal?

Philippe said...

Are people going crazy out there? This is about the most ridiculous thing I heard in my life... A trademark on a term that is used to define a human capability... It doesn't make any sense, they will have to sue any publisher who ever wrote a book about "memory"... And since we're there, why not go after RAM manufacturers? And also, there is a law in Quebec province, that says that you need to have french product names and descriptions when you sell a product in Quebec(not to say that games now NEED to be available in french too...)... How does it apply to the app store?

The point here: That thing is stupid if Apple comply to their demand, that will simply open some new doors for that kind of abuse. I will seriously be disappointed...

Hugues Hiltpold said...
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Tommy said...

The problem is that the developers have made clones of the game Memory and then uses a name of their app that is too close to Memory.

If they instead called the app Kalle then there would be no problems, at least not legal ones...

Since it is very hard to protect a game idea with a patent, Ravensburgs protect their game with the Memory trademark, which is perfectly fine.


Simon said...

I don't know much about american trademarks, but isn't Apple a trademark? Isn't Windows? And, if so, aren't those rather common terms?