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Trademark Super-Bully Apple Blatantly Infringes On Headphone Company's Trademarks

from the live-by-trademark-die-by-trademark dept

Tue, Sep 15th 2015 11:15pm — Timothy Geigner

It's not terribly often we spend the time to write about valid trademark complaints in these here Techdirt pages, but I do think there are times when it makes sense to do so. One of those times is when a company that does everything in its power to be as super-trademark-bullying as possible just flagrantly infringes someone else's trademark as though it were the most natural thing in the world to do.

So let's set this up. Now, I probably don't need to explain to the average Techdirt reader just how trademark-a-licious Apple has always been, but in case I'm wrong about that, it trademarked the interior design of its retail stores, it has long-insisted it is the only one that can use an apple in its logo, it argued that it owned the trademark rights for the generic term "app store," and it even went ahead and threatened a school because it used the forbidden fruit in its logo. In other words, Apple is as trademark-y as it gets.

Except when it comes to headphones it wants to market, in which case someone else's valid trademark can just fuck right off.

Direct Sound Headphones, LLC, of a Fenton, Missouri has sued Apple for Trademark Infringement over the term “Ear Pods”

Plaintiff, (“Direct Sound” or “Plaintiff”) sued Apple for “violations arising under the Trademark Act of 1946, 15 U.S.C. §1051, et seq., (the “Lanham Act”) and for common law trademark infringement and unfair competition under the laws of the State of Missouri, “based on Direct Sound’s ownership of the trademarks “E.A.R.PODS” and “e.a.r.Pods”; Direct Sound’s use of the trademarks “E.A.R.PODS” and “e.a.r.Pods” in manufacturing and selling audio headphones; Apple’s subsequent, improper, and infringing use of “EarPods” to sell goods including audio headphones; and Apple’s continued improper use of “EarPods” despite Apple’s knowledge of Direct Sound’s prior use and ownership”.

Seems pretty clear cut to me. EarPods was a barely-variant version of a trademark registered by another company, the use of which could have been found with a simple google search, nevermind any actual investigation into the prior use of the term. And, yes, having yet another product in the tech world out there with the use of "pods" in it is as stale as cheap beer that's been sitting in sunlight for the better part of a day, but that isn't really the point. "Ear Pods" works as a trademark and Apple disregarded it and marketed its own product with the term.

And this isn't even the first go around with Apple's product's name.

Back in September 2012, we wrote a story about Apple failing to secure the domain names EarPod.com and/or EarPods.com before announcing its Ear Pod product, writing in part:

“The domain name Earpod.com has been registered since 2008 and is being forwarded to a hearing clinic site at myhearpod.com.

The company that owns the domain name earpod.com owns a trademark on the term “hearpod” and maybe in a position to object to Apple’s trademark or sued Apple for infringing on its mark especially since the own Earpod.com.

Live by the trademark, die by the trademark, sirs. You can't on one side be the bully and then cry victim.

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Filed Under: earpods, trademark, trademark bully
Companies: apple

26 Comments

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That Anonymous Coward (profile), 15 Sep 2015 @ 11:29pm

"You can't on one side be the bully and then cry victim."

Are you familiar with Apple?
They take others work, make it their own, then claim the first guy ripped them off.
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orbitalinsertion (profile), 15 Sep 2015 @ 11:37pm

Re:
I was going to say, that rather defines a huge number of bullies, does it not?
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Anonymous Coward, 15 Sep 2015 @ 11:41pm

Apple won't shed a tear over this. They'll pay money to make it go away and their consumers will be none the wiser.
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Anonymous Coward, 16 Sep 2015 @ 1:13am

If you are rich enough you can just buy most judges seems like these days. They can claim they suffer from affluence and get away with it.
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Peter, 16 Sep 2015 @ 3:59am

Definition
Competitors 'steal' Apple's 'valuable IP'
So what's the word for what Apple does?
Ah yes, they 'inovate' it from other people
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Anonymous Coward, 16 Sep 2015 @ 4:44am

Re:
They also pretend to have invented the mouse, the GUI and several other things.
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Derek (profile), 16 Sep 2015 @ 5:33am

No, they didn't
"They also pretend to have invented the mouse, the GUI and several other things."

I don't them ever claiming that. Xerox PARC was well known and I think Steve Jobs actually gloated about how he took those ideas and made them more useful.
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Goyo (profile), 16 Sep 2015 @ 6:10am

Re:
Yeah, rounded corners.
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Goyo (profile), 16 Sep 2015 @ 6:12am

Re: Re:
Sorry, this was intended to be a reply to "They also pretend to have invented the mouse, the GUI and several other things."
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Anonymous Coward, 16 Sep 2015 @ 6:17am

I'm surprised they didn't market them as Apple Seeds.
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ac (profile), 16 Sep 2015 @ 7:13am

Re: No, they didn't
Except that when many of those same design elements were subsequently appropriated by Microsoft, apple sued, claiming ownership.
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ac, 16 Sep 2015 @ 7:13am

Re:
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ac, 16 Sep 2015 @ 7:16am

Re: Re:
Darn phone...
Apple has a history of naming products what they want, regardless of prior usage, then they pay off the owner and everybody forgets about it. iPad, for instance, was not first used by apple.
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Angry Sprite, 16 Sep 2015 @ 7:55am

TechDirt reverses itself from its own paradigm because: APPLE
Never mind WHO the companies are, that's a moot point. What a crap article - TechDirt turning the tables on itself from what it would have normally reported because: APPLE.

So here's the proper, correct, and usual TechDirt report as it should have been:

Were I on the jury my vote is that they do NOT infringe for this reason: the trademark requires the (silly to me) punctuation mark of "period" aver each of the initial three letters of the trademarked term and the last for letters to be capitalized.

These periods are two things: 1) enough to make it pretty obvious at a distance when they are there or not and 2) a *required* part of the trademarked term.

Hence: E.A.R.PODS, e.a.r.PODS (note that "PODS" must be capitalized) look *nothing* like EarPods. Hence the suit will fail in court. Whether it's a frivolous suit or not I leave up to you to decide.

***

There: I literally just reported on this the way techDirt normally would. Except the suit is against Apple Inc. Which TechDirt in general seems to like to bash every now and again, and that - dear friends - is the only reason this TechDirt article takes the literal opposite of what it would and should have were it any other company involved.
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Anonymous Coward, 16 Sep 2015 @ 7:55am

This confirms to me that Apple is a Evil Corp, just as bad as Microsoft, Dell, HP, Sony, MPAA, RIA, etc etc.
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Drawoc Suomynona (profile), 16 Sep 2015 @ 7:57am

Not yet Registered
"EarPods was a barely-variant version of a trademark registered by another company" - not to be ticky tacky but neither party has been granted a registration yet.

Direct Sound filed first their app first (9/8/12), but Apple was able to claim the "priority" date of an application Apple filed in Jamaica (7/17/12) a few months earlier, which put Apple ahead of Direct Sound in line for review at the PTO. Apple's app was approved first and published, while Direct Sound's app was suspended pending Apple's app becoming a registration. But Direct Sound opposed the Apple app, and they claim an earlier "first use date" of 6/28/12, so they should prevail and eventually get the registration, assuming that date is correct and Direct Sound has the evidence to back up that date. If Apple produces evidence of their use that predates Direct Sound use then they could conceivably prevail. It might seem like a slam dunk for Direct Sound but you never know.

I couldn't find it, but a comment on the source article says that Direct Sound's Motion for Summary Judgement was denied, which is interesting and may be a small victory for Apple, at least initially.

Look for the usual "make it go away" settlement from Apple, a la iPad.
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Anonymous Coward, 16 Sep 2015 @ 8:06am

Re: TechDirt reverses itself from its own paradigm because: APPLE
Hey old man I think there's some more kids on your lawn that need a good yellin' at.
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Mason Wheeler (profile), 16 Sep 2015 @ 8:18am

Re: Re:
They didn't invent them, but they improved upon them and made them practical. (And then, in the case of the mouse, continued tinkering with them and produced horrible abominations.)
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Isma'il, 16 Sep 2015 @ 8:32am

Re: TechDirt reverses itself from its own paradigm because: APPLE
Your rebuttal doesn't hold water because no one behaves the copyright troll like crApple. The take someone else's idea, "popularise" it (IOW use their vast marketing magic to convince people that they can't live without their product), and then cry foul when someone has the gall to compete with them.

Pot, meet kettle.
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Anonymous Coward, 16 Sep 2015 @ 9:01am

Re: Re: Re:
The idea that they improved or made them practical is pretty subjective. Let me guess, rounded corners?
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Anonymous Coward, 16 Sep 2015 @ 11:58am

Re:
And then sued the hell out of everyone on the planet named 'John'.
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Anonymous Coward, 16 Sep 2015 @ 12:16pm

Re: TechDirt reverses itself from its own paradigm because: APPLE
You've overplayed your hand.

TechDirt disapproves of use of a trademark? You object.
TechDirt approves of use of a trademark? You object.

This is pure trolling (classic def.), and is therefore banal & sophomoric w/o any entertainment value. If you'd not gone quite so far, you might've been able to continue to enjoy your OCD-oppositional-defiant 'amusing lunatic' status among a certain subset of readers.

Now? You're just dull.
And yes, I'm going to report your comment, as well as my own.
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Anonymous Coward, 16 Sep 2015 @ 12:19pm

Re:
They're worse in a way. If MS et. al. were faith-healer televangelists, Apple would be Scientology.
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Anonymous Coward, 16 Sep 2015 @ 1:44pm

Re: Re: Re:
You seem to be the king of the semantic nitpick. Bravo: slow clap.
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Anonymous Coward, 16 Sep 2015 @ 11:11pm

Re:
And here you are, defending a corporation.

What a lying scumbag you are.
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Anonymous Coward, 16 Sep 2015 @ 11:18pm

Apple claiming it invented the phone and tablet stylus in 5 4 3 2 .....
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