Trademarks and the Apple App Store

Please note that this post is from 2009. Evaluate with care and in light of later events.

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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