Apple Lawyers Try The Ever Popular Morons In A Hurry Test
from the a-great-legal-test dept
Back in 2003, when the Beatles' Apple Corp. sued Apple computer over trademark violations, we noted that the whole purpose of trademark was to avoid confusion -- and we doubted that anyone out there was confusing the Beatles' corporate name with that of Apple Computers. It would appear that Apple Computers' lawyers are using the same defense now that the case has actually gone to trial. However, they phrased it in a much more elegant way, stating that "even a moron in a hurry could not be mistaken" about the difference between the two companies. While other court cases have tests concerning things like "reasonable doubt" and "the average person, using community standards," personally, we think court cases would be a lot more interesting if the "moron in a hurry" test were applied more often.
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by Anonymous Coward on Mar 30th, 2006 @ 6:46pm
Retard in a Rush sounds much better although not politically correct
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Apple vs Apple by Anonymous Coward on Mar 30th, 2006 @ 7:37pm
Apple Corps Ltd. (Beatles, et al)
Apple Computer (iTunes, aka Steve Jobs & atty Grabiner)
I thought the following expert from the article was "cute".
...
The presiding judge, Edward Mann, is computer-literate and has acknowledged owning an iPod music player.
At one point Thursday, Mann stopped Grabiner (Apple Computer's attorney) during an explanation of Apple Computer's iLife suite of multimedia software.
``ILife is not a complete novelty to me. I've got it and I use it,'' the judge said.
Grabiner apologized for explaining the obvious, but said that should the case go to a higher court, an older judge might not be so savvy.
``The higher up one goes, the less likely it is that anyone will know what we're talking about,'' he said.
The trial, which began Wednesday, is expected to last until at least next week.
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Why would this take so long by TRW on Mar 30th, 2006 @ 8:23pm
The trial, which began Wednesday, is expected to last until at least next week
Why should it take so long for the courts to listen to a case like this.This is why our court systems are so crowded.Throw it out and be done.
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Taking so long by mackpaheder on Mar 30th, 2006 @ 8:40pm
because it is the British court and common law whigs and all
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me by jo on Mar 30th, 2006 @ 9:28pm
Im a moron in a hurry
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Re: by parched on Mar 30th, 2006 @ 9:33pm
Retard in a Rush sounds much better although not politically correct
...
And who cares about being polictallly correct if you are picking on those who seldom defend themselves.
Working with the mentally retarded, I've learned that they notice when their disability is bantered around as an insult. They notice that the joke is on them; and they get it that they are a "throw away" population. They hurt when they hear the bores laughing at yet another uninspired retard reference. As a matter of fact, they take it to heart and buy into the concept of their own insignificance.
Buy a Thesaurus and find a good insult; quit with the cheap shots. These jokes are cruel, immature, and as irrelevant as they are easy.
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Re: Why would this take so long by Joe Smith on Mar 30th, 2006 @ 9:45pm
Because the Birts still think that a judge should listen to the evidence and reach a reasoned decision based on that evidence and the law.
Just one more of those quaint out-dated things the Brits do.
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Re: Re: by Dr John on Mar 30th, 2006 @ 9:46pm
Well you have been told in unequivocal terms. Now maybe you will engage brain first, mouth second...
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Is using Moron as bad as using Retard? by Anonymous on Mar 30th, 2006 @ 9:48pm
Is using Moron as bad as using Retard?
Wiki says
Moron:*Originally a scientific term, coined by psychologist Henry Goddard from a Greek word meaning "foolish", and used to describe a person with a genetically determined mental age between 8 and 12 on the Binet scale. It was also once applied to people with an IQ of 51-70 and was a step up from "imbecile" (IQ of 26-50) and two steps up from "idiot" (IQ of 0-25).
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Re: Re: by Anonymous Coward on Mar 30th, 2006 @ 10:00pm
Shut up, retard
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Re: by Eric on Mar 30th, 2006 @ 10:02pm
But there is a bigger problem that no one is reporting on, which is the actual basis of the case. Apple Corp is sueing Apple Computers AGAIN because in the outcome of the last lawsuit (1991), which Apple Computers LOST.
"According to a recent court decision quoting the 1991 settlement agreement, the Beatles were given the right to use the Apple name wherever their songs were involved and on "any current or future creative works whose principal content is music." However, Apple Computer was allowed to use its brand on "goods or services...used to reproduce, run, play or otherwise deliver such content," as long as it was not on physical media such as a CD."
"Attorneys for both sides declined to comment on the status of the case. Apple Computer reiterated its previous statement on the issue, saying the two companies "have differing interpretations of this agreement and will need to ask a court to resolve this dispute."
IMHO, Apple Computers are going to lose again either in court or by a very large settlement. Maybe if that settlement included payment for putting The Beatles on iTunes, it could be a lose-win situation.
What I'm wondering now, is that why those facts that I just quoted from 2004 arent' being reported now?
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Re: Re: Re: by Anonymous Coward on Mar 30th, 2006 @ 10:04pm
As opposed to Open Mouth, Insert Foot.
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Re: Re: by Mike on Mar 30th, 2006 @ 10:11pm
What I'm wondering now, is that why those facts that I just quoted from 2004 arent' being reported now?
Uh. They are being reported. If you click on our original link about the story, we mentioned them. It's just that this post wasn't about all of that, but about today's trial. We figure there's no reason to rehash what's been said already concerning the reasons for the lawsuit.
And, while you may be right that Apple Computers will lose... can you explain how that's a reasonable or fair outcome, considering the purpose of trademark law is to prevent confusion, and in this case, there is no confusion to be had?
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Re: Re: by Bubba Nicholson on Mar 30th, 2006 @ 10:34pm
"Stupid is as stupid does."
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Re: Is using Moron as bad as using Retard? by kiki on Mar 31st, 2006 @ 12:05am
Perhaps "a rapidly moving mentally challenged person" would be politically correct, shorthand would be "rm2cp" as in" look at that fucking rm2cp"
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Re: Is using Moron as bad as using Retard? by kiki on Mar 31st, 2006 @ 12:05am
Perhaps "a rapidly moving mentally challenged person" would be politically correct, shorthand would be "rm2cp" as in" look at that fucking rm2cp"
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"Special Olympian"? by giafly on Mar 31st, 2006 @ 2:32am
For me, this case hangs on whether Apple Computer is behaving as a recording label.
I think the music on the iTunes site has been published in an Apple-only format with Apple DRM.
IANAL but, if this is held to be like "digital remastering", then Apple Computer may get a new copyright for the new version that they are publishing (with a term starting now), but because they are acting as publishers they may be infringing their agreement with Apple Corps.
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How would Apple Computers feel? by Rob Miles on Mar 31st, 2006 @ 3:06am
Maybe Apple Corp. should start reselling computers, to even the score. Wouldn't that be roughly equivalent to what Apple Computers is doing with music?
Rob Miles
--
There are only 10 types of people in the world;
those who understand binary and those who don't.
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Re: Re: Re: by Javarod on Mar 31st, 2006 @ 4:02am
And, while you may be right that Apple Computers will lose... can you explain how that's a reasonable or fair outcome, considering the purpose of trademark law is to prevent confusion, and in this case, there is no confusion to be had?
Well, ifn the first case was a trademark issue, and Apple lost when they had nothing to do with music, I don't think the odds are in their favor this time. Mind you, I think the whole thing is stupid and a sign of Apple Record's greed, but this is the way it goes now, no?
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A case as old as time (well, Apple Computer time) by Chris on Mar 31st, 2006 @ 4:04am
This actually stems back to the late-70s, when the first lawsuit came about. Every time Apple (Computers) has lost to Apple (Beatles) and paid out a settlement, with an agreement that "no no, we will never go into the music business." And then they break the agreement and the lawsuit comes up again.
Perhaps this is Apple (Computer)'s business model. They were also sued by GarageBand (the musician's website) for taking their name, lost, and paid a settlement. The practice seems to be thus: find a cool name, go ahead and use it, and just pay the settlement later.
This is also being done by outfits like T-Mobile, Nike, and Levi, who are using music in their marketing from independent artists without permission, only to pay a settlement later. I think the philosophy is thus: "well, they have principles and would never 'sell out,' so we can never license the song; let's use it anyway, and pay for forgiveness instead of permission."
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by ctyankee on Mar 31st, 2006 @ 4:30am
I'm sure Apple has made mistakes in the past, but to me this has more to do with the Brit's ignorant view of copyright law than anything. Sort of 'well, you used the word ''apple" therefore, brilliant, you get the rights to all use of the word apple.' As if the word itself was a new concept or as if anyone deserves rights to it.
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Apple - Music Industry???? by bafh on Mar 31st, 2006 @ 5:08am
Apple is not in the music industry. Itunes is a distribution network. Nothing else. If just selling music makes you in the music industry, then you can count in Amazon, WalMart, and your local grocery store because you will find that they all sell music, regardless of the quality. Selling music does not make you part of the industry. You are a reseller. Even your corner music store is not part of the music industry. They are a reseller.
The purpose of the law is to stop one party from creating a name similar to a much more prominant entity and misleading buyers into thinking they are buying from someone else. A less technical form of phishing. In this case, Apple Computers has NEVER attempted to mislead the public into thinking they were in any way associated with the Beatles. Steve Jobs' ego is way to big for that. When people hear the term "Apple", he doesn't want them to think of the Beatles, he wants them to think of Apple Computers, and that is generally the case. Apple Computers probably has a pretty good case for breaking Apple Corp's trademark of the name.
From Copylaw.com regarding trademark infringment :
" Copyright infringement requires "substantial similarity" of protected elements, whereas the test for traditional trademark infringement is "confusing similarity." That is, the test for trademark infringement asks whether the ordinary buyer -- not looking for subtle differences or fine details -- would believe both products (or services) came from the same source. The key to trademark infringement is "likelihood of confusion," i.e., whether two marks are sufficiently alike to cause consumer confusion as to their source or origin. Courts consider the following factors in determining likelihood of confusion:
1. Similarity of the conflicting marks;
2. Relatedness or proximity of the two companies;
3. Strength of the senior users mark;
4. Marketing channels used;
5. Degree of care likely to be used by purchasers in selecting the goods;
6. The "second comers" intent in selecting its mark;
7. Evidence of actual confusion;
8. Likelihood of expansion in product lines "
Considering the fact that Apple Computers is a more household name, Apple Computers out to be suing Apple Corp to break their trademark.
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Re: Digital Remastering by Flamsmark on Mar 31st, 2006 @ 5:53am
Transcoding, reformatting, copying and applying rights prohibition are all examples of things which do not change the content.
Digital remastering is actively improving a pieve of music. It's equivalent to retouching and airbrushing a picture in photoshop. What apple is doing is effectively equivalent to resizing, and saving in a propriatery format. It does not change the copyright.
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Re: Re: Re: by Anonymous Coward on Mar 31st, 2006 @ 6:08am
Excuse me, I thought the purpose of trademark was to give lawyers and other Parasites on the Body Economic a way to survive without actuallly doing something useful or worthwhile
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Re: me by Paul on Mar 31st, 2006 @ 6:26am
I'm a moron in a jury, is that the same thing?
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Re: Re: Is using Moron as bad as using Retard? by Ben on Mar 31st, 2006 @ 6:31am
Forget being PC, words dont hurt people. If your hurt by words you need to grow up, there is a reason we have freedom of speach.
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Re: Re: Digital Remastering by Xalorous on Mar 31st, 2006 @ 6:49am
Transcoding, reformatting, copying and applying rights prohibition are all examples of things which do not change the content.
Transcoding and reformatting can result in reduced quality of the medium (e.g. when you change to a lossy format). This is a change in content.
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Should apple lose ? by randdickson on Mar 31st, 2006 @ 6:50am
"According to a recent court decision quoting the 1991 settlement agreement, the Beatles were given the right to use the Apple name wherever their songs were involved and on "any current or future creative works whose principal content is music." However, Apple Computer was allowed to use its brand on "goods or services...used to reproduce, run, play or otherwise deliver such content," as long as it was not on physical media such as a CD."
Maybe I'm the moron they are referring to but isn't iTunes a delivery System ? Apple doesn't create any of the music or other materials. They simply provide a method to deliver & play ...
Not sure how the brit courts work but I wonder if there's already an existing case law to fall back on.
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Re: Apple - Music Industry???? by RevMike on Mar 31st, 2006 @ 7:09am
A very sound reasoned analysis except for one thing...
You are referencing US law and this case is in the UK!
UK trademark law protects the owner of the mark for more than US law. The World Wildlife Fund successfully got the World Wrestling Federation to stop using the mark WWF in the UK, where they never would have succeded in the US.
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Re: Re: by Scottao on Mar 31st, 2006 @ 7:19am
Well said.
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Re: Re: Apple - Music Industry???? by bafh on Mar 31st, 2006 @ 7:34am
I am aware that what we are tallking about is UK trademark law. But what you are talking about is a US corporation. US corporation can only be bound by US law. If they subject themselves to the laws of foreign countries it is because they choose to be bound by those laws. The only result can be a fine or a cease order to stop doing business in that country. To do anything else, the case would have to go to a US court. To sieze assets of a US corporation, you would have to make the case in US court. The US constitution prevents US citizens from being bound by the laws of other countries unless they chose to operate there. It is why you have Amazon.com (US), Amazon.UK, Amazon.ca, etc. They have setup seperate corporate entities to be bound by the laws of the country.
With regards to WWF, the wrestling foundation lost not because they had infringed upon the name itself but because the wrestling assoc.'s use of the name was irreparably damaging the World Wildlife Fund. People were not giving donations to the World Wildlife Fund because they thought that the money would be going to Vince McMahon. There was confusion and the wrestling foundation was the cause.
Apple Computers is in no way shape or form damaging the reputation of Apple Corp. In fact Apple Corp is unfairly benefitting from its association via the name Apple. The Beatle's Apple Corp is just trying to extort money from Apple Computers because Jobs' has refused to give in on the recording industries' demands for multi-tiered pricing on Itunes. This is no more about trademark infringement than the Blackberry case was about patent infringment. It is about extortion.
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PS... by bafh on Mar 31st, 2006 @ 7:36am
PS.....
Man you gotta love the "Moron in a hurry" standard. You gotta be praying that ends up on the books...
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someone was impressed by their phrase... by Brandon Zylstra on Mar 31st, 2006 @ 7:38am
They registered the domain name on March 30th, the day this article came out:
http://betterwhois.com/bwhois.cgi?verification=5623&domain=moroninahurry.com&submitbtn =Continue
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Re: by Anonymous Coward on Mar 31st, 2006 @ 8:14am
Or Rush is a Retard?
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Re: Re: by Doug on Mar 31st, 2006 @ 8:16am
What's with you anyway? I'm pretty sure that the mentally impaired wounld'nt find this website to begin with unless someone like you pointed it out to them.
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Re: Re: Re: Is using Moron as bad as using Retard? by DK on Mar 31st, 2006 @ 8:37am
Freedom of speech? Wrong. You have the freedom to say what you want -until- it encroaches on someone elses basic liberties (life, liberty, and the pursuit of happiness). When you're calling someone a "retard" you're referring to (by today's society) someone who is mentally handicapped. A "moron" (again by today's standards) is someone who lacks common sense...something that's quite common today.
I myself have a mentally handicapped relative, and I'll flat out say that I find that word insulting. Words like "moron" or "idiot" are fine...but when you go using terms that actually insult a large percentage of the population, you're going a bit too far.
So try to remember that. Have a bit of care for the people around you, okay? The world doesn't revolved around your sorry ass; there are many other people around besides you, and each of them have feelings.
Keep that in mind.
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If I open an shop called the Apple Store..... by Todd G on Mar 31st, 2006 @ 9:10am
and sell apples (fruit) am I violating copyright or trademark?
I think I would pass the reasonable use standard and all that, but I would bet Steve would have his lawyers running up and down my spine in seconds.
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ReRe: Re: Re: Is using Moron as bad as using Retar by Ragzouken on Mar 31st, 2006 @ 9:14am
Actually by today's standards; when you refer to a retard you are just insulting them, nobody calls anyone a retard to insult mentally handicapped people. Retard has changed as a word. Retard is slang and it means different things to different people. It's your fault if you choose to associate Retard with Mentally Handicapped people.
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Re: Re: Digital Remastering by Anonymous Coward on Mar 31st, 2006 @ 9:31am
"Digital remastering is actively improving a piece of music."
Or, in most instances, of actively ruining a piece of music. ;)
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Re: Re: Re: Is using Moron as bad as using Retard? by Walking Dude on Mar 31st, 2006 @ 9:45am
Freedom of speech does indeed guarantee allow you to open your mouth and show your true level of ignorance. Thanks for letting us know. Defending the use of a term meant to insult the truly indefensible under the banner of "free speech" further indicates to me that you are coming from a pretty lonely, sad place. How sad for you.
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Re: ReRe: Re: Re: Is using Moron as bad as using R by Walking Dude on Mar 31st, 2006 @ 9:50am
"It's your fault if you choose to associate Retard with Mentally Handicapped people"
That's the stupidest thing I think I've read on the Internet in over a month. Congratulations because this has been a pretty good month for stupid comments. That word, although slang, is commonly associated with the mentally handicaped. Just because you like to use and then justify it to fit your world view doesn't mean the rest of the world has to alter its meaning to make you feel better about using it.
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Re: Re: Re: by Parched on Mar 31st, 2006 @ 10:39am
What is wrong with me is that using retarded as an insult has become yet another pervasive fad in lazy and unimaginitve "follow the crowd" speech.
It is almost impossible to have a conversation with any group of people without hearing that something or someone is retarded. These adjective substitutes are nearly always irrelevant to the subject at hand; they describe nothing. The end result is both poor communication and the proliferation of a mean habit.
The mildly retarded could indeed peruse the site, but you are correct that the severely to profoundly retarded would not. They likely will not stand up to you either. A good many of the severly affected, though fully non-verbal have excellent receptive language (they understand everything said). They are not going to be able to stand up for themselves.; therefore, I will.
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Re: Re: by parched on Mar 31st, 2006 @ 10:43am
Or Rush is a Retard?
But he is not, is he?
Rather, he is a bombastic, blow-hard bigot.
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Re: If I open an shop called the Apple Store..... by jimsnyder on Mar 31st, 2006 @ 11:10am
No. "Apple" can always be used in commercial speach to refer to the delicious round, red fruit (assuming that you are not infringing on someone else who beat you to the name). I don't think that either Apple computers or Apple Corps are in the business of selling apples...
BTW -- The record company in this suit is "Apple Corps".
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Re: Re: Is using Moron as bad as using Retard? by Anonymous Unix Admin on Mar 31st, 2006 @ 11:41am
shorthand would be "rm2cp"
Any reasonably accomplished Tech person should know that you cannot "rm to cp". The cp must occur first, or the file will be gone. When in doubt, use mv and let the system take care of the details.
BTW, in this case, "mv" would probably be shorthand for the "moron velocity".
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Re: If I open an shop called the Apple Store..... by Anonymous Coward on Mar 31st, 2006 @ 11:45am
Yes you are. Because people would confuse you with Apple and form invalid opinions of Apple based on your store.
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Did anyone read the agreements? by jimsnyder on Mar 31st, 2006 @ 11:47am
This is a breach of contract case. It is not a copyright case. It is not even a trademark case (that one was settled 15 years ago). Read the 1991 Trademark Agreement; there is a link at the top of the article. The courts will consider the agreement in its entirety. You have to consider statements in the context of the entire contract. It will take some serious mental gymnastics to argue that Apple Computer company is not breaking its promise to stay out of the line of business that their agreement appears to reserve for Apple Corps. The "field of use" for the apple trademark of Apple Corps is musical performances "regardless of the means by which those works are recorded, or communicated, whether tangible or intangible... " Apple Computer is trying to claim that it is merely a "data transmission service," presumably like a telephone company or ISP. One commenter compares Apple Computer to a record store. I would agree, except to note that if that is the case, then Apple Computer loses. Operating a record store would also plainly violate the Trademark Agreement.
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Re: Re: Re: Is using Moron as bad as using Retard? by Anonymous Coward on Mar 31st, 2006 @ 11:50am
Forget being PC, words dont hurt people. If your hurt by words you need to grow up, there is a reason we have freedom of speach.
Nevermind my hurt by words, this is a circular argument, is it not? If words are powerless so is freedom of speech.
Is "The pen is mightier than the sword", by your standards, a phrase steeped in immaturity while calling everyone and everything retarded an indication of truly mature?
Furthermore, I never disputed anyone's right to use the term; I haven't called for any arrests. I merely pointed out that the term is witless and insubstitational in an argument while being a cruel and cheap shot at the only group that it remains acceptable to insult. A group that just happens to be unable to call you on it.
Your "freedom of speach"[sic] is under no threat from me or anyone else on this board.
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Re: by Anonymous Coward on Apr 4th, 2006 @ 1:37am
The lawyer referencing "even a moron in a hurry could not be mistaken" was making a reference to a 1978 case, which no doubt the judge would have been aware of. The statement wasn't a throwaway line as many assume.
The reference was a clever way of citing case law where the upstart "brand" won the case against the older "brand".
In 1978, the publishers of the Morning Star - the Peoples Press Printing Society - challenged the launch of the 'tits 'n bums' rag, the Daily Star. The PPPS suggested that the name of the new paper would be 'confused' with their own and would affect sales of its publication (I remember thinking at the time that it would probably push them up). This was rejected by the High Court. It was underlined that when examining any potential "confusion" it was important to look at the type of persons affected, to ascertain their "standard of literacy and education". It was judged that "only a moron in a hurry would be misled" into confusing the Morning Star and the Daily Star (Morning Star Cooperative Society v Express Newspapers Ltd, 1979).
http://www.cpgb.org.uk/worker/281/partynotes.html
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Re: Re: WWF by Anonymous Coward on Apr 4th, 2006 @ 4:05pm
actually they did succeed in the US. that's why it's now world wrestling entertainment.
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Defining Retard by Amazed Bystander on May 8th, 2006 @ 11:08am
Since this post is alread off topic, I would like to invite you to Google: define:retard
You will see that only the last of 6 possible definitions is mental retardation. In fact one is as a synonym for idiot - a word I think many of you use already.
This post is just my 2 cents, and worth every penny.
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by Anonymous Coward on Sep 26th, 2007 @ 3:27am
And who cares about being polictallly correct if you are picking on those who seldom defend themselves.
Working with the mentally retarded, I've learned that they notice when their disability is bantered around as an insult. They notice that the joke is on them; and they get it that they are a "throw away" population. They hurt when they hear the bores laughing at yet another uninspired retard reference. As a matter of fact, they take it to heart and buy into the concept of their own insignificance.
Buy a Thesaurus and find a good insult; quit with the cheap shots. These jokes are cruel, immature, and as irrelevant as they are easy.
You souund like a fucking retard.
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Re: Re: by Anonymous Coward on Apr 27th, 2008 @ 8:48pm
Retard may have started out merely describing the mentally challenged, but now it has a completely(well, mostly) different meaning. If you are offended by the evolution of language, find a new word to call the real retards.
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Re: Is using Moron as bad as using Retard? by Anonymous Coward on Jun 13th, 2008 @ 4:45pm
Or George 'Monkey Boy' Bush for short...
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Re: Re: Re: Re: by Anonymous Coward on Jun 13th, 2008 @ 4:56pm
Well said!
I have a 'retarded' child. However at 7 years of age, I have no doubt whatsoever that he is capable of more articulate responses than the derogatory remarks levelled at you. Perhaps these challenged individuals could benefit from your assistance? To those grinning - good luck to you all, as your children are almost certainly to go through a phase of retardation which will challenge you as mine does now - just wait 'till they hit thirteen....suckers!
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