Trademarks and the Apple App Store

Apple’s “app store” con­tin­ues to gen­er­ate con­tro­versy through its rejec­tions. I must agree with the fol­low­ing analy­sis that use of icons – espe­cially as pro­vided through an API expressly for that pur­pose should not vio­late trade­mark law (or copy­right for that matter).

It is, I think, rather like using “Xerox” or “Coca-​​Cola” to specif­i­cally iden­tify those prod­ucts – since the whole basis of trade­mark is to essen­tially avoid con­sumer con­fu­sion, this usage is not a violation.

The only other poten­tial prob­lem would be too sug­gest that the trade­mark is being used to sug­gest endorse­ment – also not an issue here, I think, but per­haps more possible.

Here’s the sit­u­a­tion: Airfoil is using icons made avail­able through Apple’s API to iden­tify the source of a trans­mis­sion. Apple rejected the app, say­ing that it’s dis­play of Apple logos (via the Apple-​​provided API) vio­lated IP laws.

Airfoil Speakers Touch’s dis­play of these icons falls under fair use. If there’s any doubt to this, look at all the places where Apple dis­plays other people’s icons with­out their explicit con­sent, like the Finder, the Dock, Spotlight, etc.

Daring Fireball also has a good, in-​​depth dis­cus­sion of var­i­ous argu­ments put forth, includ­ing a look at just what the iPhone SDK agree­ment says.

Ultimately, this is not a trade­mark issue, but sim­ply a mat­ter of Apple enforc­ing arbi­trary and incon­sis­tent require­ments for iPhone appli­ca­tions. There’s no legal require­ment for them to for­bid use of their icons, and no ben­e­fit to them in doing so. By insist­ing on not allow­ing us to dis­play their icons, Apple is sim­ply wast­ing everybody’s time, includ­ing their own, and incon­ve­nienc­ing our mutual users.

via Under The Microscope.

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