Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

Apple did not prove that App Store was famous and not descriptive, therefore Apple failed to establish a likelihood of success at trial. On July 6, 2011 US District Judge Phyllis Hamilton denied Apple’s request to enjoin Amazon from using “App Store” as she ruled that it was unlikely that there would be any confusion between customers of Apple and Amazon.

Actually the standard to obtain a temporary injunction is so high they are rarely granted. 

Apple needed to prove that it had irreparable harm, money damages would not suffice, and it would ultimately win at trial. Which meant that at the trial Apple would have to prove “trademark infringement, Apple must show ownership of a legally protectable mark and a likelihood of confusion arising from Amazon’s use.” Amazon’s defense was that App Store is a generic mark “because Apple’s App Store is simply an online store where consumers can search for, choose, and download apps.” 

Apple reported it 10 billion apps had been downloaded since Apple started the app business.  However the truly amazing statistic is that Apple announced six months later that another 5 billion apps have been downloaded, for a total of 15 billion apps!  We can all watch to see if Judge Hamilton’s ruling has an impact on the future for Apple and the app world!
 

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As a retailer Apple appears to be second to no one, but since imitation is the sincerest form of flattery is it any wonder that a blogger visiting China recently discovered more than one counterfeit “Apple Store” selling Apple products and employees of the counterfeit “Apple Store” even believed they work for Apple! It is not clear exactly what Apple will do about this blatant trademark infringement. Actually the four real Apple outlets in Beijing and Shanghai are now the four most heavily trafficked Apple stores in the world and also generate the most revenue, outselling even the Fifth Avenue Apple Store in Manhattan (New York) open 24 hours a day.

Apple products are unbelievably popular in China as reported by the NY Times. In the last quarter alone Apple had revenue of $3.8 billion in revenue in China and:

For the first three quarters of Apple’s fiscal year, revenue in greater China was $8.8 billion — six times that of a year earlier. Last quarter, Apple may have even generated more revenue in China than Lenovo — the Chinese PC maker that seven years ago acquired I.B.M.’s personal computer business, according to a survey by Bloomberg News.

It may be better for Apple to allow the counterfeit Apple Store to operate to sell more Apple product and worry about the trademark infringement by some licensing agreement rather than trying shut down these counterfeit "Apple Stores."

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Please listen to this informative podcast about eNeturals and Special Masters for eDiscovery featuring US District Judge Arthur J. Schwab, Allison Skinner, and Timothy Opsitnick concerning the American College of eNeutrals’ efforts to training mediators, Special Masters, and discovery referees. Karl Schieneman moderated the panel’s discussion.

Also Karl Schieneman interviewed Allison Skinner and me available on a podcast entitled “How To Work With E-Mediation and Special Masters in E-Discovery Cases,” and you are welcome listen to that recording as well.

Judge Schwab is from the Western District of Pennsylvania which earlier this year started Panel of eDiscovery Special Masters, and I’m proud to say that I’m a Panel Member as is Allison Skinner, Timothy Opsitnick, and Karl Schieneman. As a matter of fact many of the Founding Board Members of American College of eNeutrals are Panel Members including David Cohen, Rick Lettieri, and Jonathan Redgrave.

Allison Skinner and I are very pleased that American College of eNeutrals has been so warmly received by Judges, Mediators, Special Masters, and Lawyers around the country.

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China’s dominant search engine Baidu announced a new licensing that will permit legal downloads and streaming music to millions of Chinese users. A recent NY Times report described the new deal that will change China’s image for providing illegal downloads:

The agreement between Baidu and One-Stop China, a joint venture between the Universal Music Group, the Warner Music Group and Sony BMG, will shut down access to a vast amount of pirated music and promises to broadly reshape the way China’s 450 million Web users gain access to online music. The country has long been a haven for pirated content. Baidu has been one of the chief conduits to it, much to the consternation of record labels, publishers and artists both here and abroad.

Although Baidu will pay the costs to provide legally free music the “International Federation of the Phonographic Industry, which represents global music companies, estimates that 99 percent of the music found online in China is illegal, much of it available through Baidu.”

So it remains to be seen how the new Baidu music deal with affect illegal music and international Copyright laws
 

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Google’s newest Social Media adventure Google+ is getting rave reviews with millions of users yet not launched to the public. Keep in mind that the Federal Trade Commission’s (FTC) 20 year oversight of Google’s privacy policy because of Google’s disastrous Buzz – the 2010 failed Social Media attempt by Google. One might assume that the FTC has approved the Google+ Privacy Policy, but who knows.

Google has a myriad of legal issues going on right now and Google+ is just the latest so you might be interested to read my eCommerce Times July column entitled “More Legal Woes for Google.”

Stay tuned for more Google legal issues.
 

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Google faces antitrust allegations by the Federal Trade Commission (FTC), the European Union(EU), and in Texas that Google’s search engine favors its own services in search results and charges rivals higher ad rates. So when asked to testify before a US Senate Judiciary antitrust subcommittee Google initially refused, but now Eric Schmidt, Google’s executive chairman has agreed to testify.

Even though the US antitrust laws were created to deal with the oil and banking industries, and not eCommerce and the Internet, the US Department of Justice (DOJ) and FTC are scrutinizing Google. Claims against Google are far different that the antitrust trial and judgment against Microsoft more than decade ago for Microsoft's monopolist behavior regarding Internet Explorer and APIs (Application Program Interfaces).  Finally the DOJ monitoring of Microsoft ended in April, 2011.

The Senate hearing and investigations of the FTC, EU, and Texas will be interest to monitor.

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Microsoft recently paid $8.5 billion for Skype and even though Facebook and Google lost in the bidding wars offering a measly $3-4 billion, nonetheless nowFacebook announces that Skype will be available for video calling! Mark Zuckerberg said:

Users will be able to click a button in Facebook to call a friend. If the friend does not already have the plugin required for video chat, the friend will see a pop-up to download the plugin. That download should just take 10 or 20 seconds.

Facebook now claims to have 750+ million active users who spend over 700 billion minutes per month on Facebook. Surely the addition of Skype portends great things for the future of Social Media and Facebook, but probably not Google since beta testing of Google+ (latest Social Media project) has privacy bugs which must be fixed before its public launch.

What’s next for Facebook? Google? Social Media?

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My 30+ minute video about the 10 Commandments of IT Contracts is available for viewing thanks to my friends at Financial Management Network (& parent SmartPros Ltd.). For more than 30 years I’ve negotiated and litigated hundreds of IT contracts, and as a result of my experiences I continually update my 10 Commandments. In this video with I revised the 9th Commandment – “Internet and Cloud Computing Are Different”….here are all 10 Commandments.

1st Commandment – No IT Project is ever completed on time
2nd Commandment – No IT Project is ever complete
3rd Commandment – If you cannot see the software, it does not exist
4th Commandment – New versions of operating systems never work
5th Commandment – There are no Industry Standards
6th Commandment – Do not buy brand new hardware
7th Commandment – Do not buy brand new software
8th Commandment – Sales people have answers to every question
9th Commandment – Internet and Cloud Computing are different
10th Commandment – Individuals who negotiate contracts are never around later

After I blogged my 10 Commandment some IT friends offered Commandments #11 and #12 as follows:

11th Commandment – Any IT Project with its own name is doomed to fail!
12th Commandment – Pick a Scapegoat before the IT Project who will never be invited to meetings!

Any suggestions for more IT Contract Commandments?

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