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Podcast™
As you may have heard, Apple has been getting some flak over its alleged crackdown on using the word ‘podcast’. First things first, though – Apple is not trying to say they “own” the word “podcast” – it’s not one of their trademarks. What they are trying to do, however, is police the word “pod”, obviously due to their ownership of the iPod trademark.
Why are they doing this?
You would have thought the last thing Apple would want to do is start cease-and-desist-ing companies left right and center – just look at the amount of bad press that have come out of it; although – not for the first time – no where near as much as if it had been Microsoft at fault.
So, why bother?
Because they have to, by law.
It’s very simple really; if they don’t be seen to be defending their trademarks, those marks become invalid. So, as long as Apple wants to be able to stop someone coming out with on “eyePod”, for example, it has to try and defend any occurrence where its mark is at risk.
Taking the “myPodder” example, it’s not too hard to see that someone could potentially confuse this with an official Apple iPod related product; and if there’s any possibility for confusion, they have to pursue it. Similarly, the problem with “PodcastReady” is not so much the “podcast” bit, but the possibility that “PodcastReady” could be confused with something iPod related – for example the “Made for iPod” 3rd party peripheral branding scheme. Don’t forget, it’s not that it is confusing, just that there’s a possibility that someone could get them confused.
Similar problems occur when you’re trademark gets so popular that it becomes “verbized” – people start using your brand name as the generic word for doing something, and hence the trademark becomes invalid. Google is desperately trying to avoid that happening at the moment (they can’t stand it when you say you googled for something…), but they seem to be fighting a loosing battle. Escalator, Hoover and Biro are also past examples of this.
Of course, all this not being Apple’s fault doesn’t mean the whole situation doesn’t stink – it’s a very tricky problem though, and change in the way it works would almost certainly lead to other, possibly bigger, problems. For example, if you didn’t have to actively police your trademarks, then you’d get companies sitting on a whole pile of trademarks, waiting till someone infringes on one and makes it big and then demanding huge amounts of money.
We know that the above would happen, as that’s exactly what does happen with patents.
I guess we have to live with it, then…
UPDATE: Wired have scans of the letter Apple sent to PodcastReady and it further reenforces the above – Apple state within it that they have to act to prevent the dilution of their iPod and Pod trademarks.
Similarly, they don’t want PodcastReady to stop using the word “podcast”, but they simply don’t want them to use it in the categories of “portable listening devices”. They also reiterate that they have no objection to the use of the word “podcast”.
Comments
Bwana said at Sep 25, 09:56 PM:
Good article. It actually made me stop and think for a minute before proceeding with my anti-Apple rants.
David Emery said at Sep 26, 06:11 AM:
Thanks!
With regards to your post ( http://www.bwana.org/2006/09/25/this-whole-podcast-thing/ ) – it will indeed be interesting to see what they do next.
wrong said at Sep 26, 11:26 AM:
”[Apple] have to [protect their copyright on the word podcast], by law”
No they don’t. They only have to bitch about this if they want to prevent anyone from using the construction ‘whateverPod’. Their existing trademarks will not become invalid.
It seems entirely unreasonable for apple to expect to prevent everyone from using the word ‘Pod’ as a suffix, regardles of their existing brand standing.
BTW
Google, hoover, argos, tesco – all of these companies have no problem at all with the man in the street using their company name as a verb – some might say that they encourage it. They get annoyed when companies make money off their backs.
If you have a great brand name and everyone starts using it, it becomes old really quickly, and when something is old its not as interesting, and people start talking about other new brands names, even if the product they offer is worse, just because they are new and exciting.
—-
the word podcast describes an audio file available for download on the internet. I understand the need to differentiate between an audio file and an audio stream, but i resent that the commonly used term is podcast. Audio downloads on the internet have been available for bloody ages, long before streaming audio was even possible.
The way the apple crowd heralded the ‘invention’ of podcasts made me laugh a lot.
PS: love the way the article (again) sticks up for apple even though this is a disgrace: would you write the same about Mcdonalds ceasless campaign to ruin legitimate businesses that happen to share their name?
David Emery said at Sep 26, 01:06 PM:
“No they don’t. They only have to bitch about this if they want to prevent anyone from using the construction ‘whateverPod’. Their existing trademarks will not become invalid.
It seems entirely unreasonable for apple to expect to prevent everyone from using the word ‘Pod’ as a suffix, regardles of their existing brand standing.”
No, really – they do. This is why Microsoft forced Lindows to change it’s name to Linspire, as it was too close to “Windows” and could cause confusion.
“the word podcast describes an audio file available for download on the internet”
No it doesn’t – the key differentiator is the delivery method, RSS or Atom. Obviously downloading audio over the net isn’t new, but being able to subscribe to an audio feed that automatically updates is.
“The way the apple crowd heralded the ‘invention’ of podcasts made me laugh a lot.”
No-one is trying to claim Apple invented podcasts. They have played a big part in popularising it, though.
“would you write the same about Mcdonalds ceasless campaign to ruin legitimate businesses that happen to share their name?”
I’m not sticking up for Apple per se – the situation sucks, but they don’t have a choice. If McDonalds were pursuing a company called “McDonuts” I’d feel the same.
Corun said at Sep 26, 02:26 PM:
“Google, hoover, argos, tesco – all of these companies have no problem at all with the man in the street using their company name as a verb – some might say that they encourage it. They get annoyed when companies make money off their backs.”
Actually, “Google has attempted to discourage use of the word as a verb, fearing the dilution and potential loss of its trademark”[wikipedia]. It wasn’t a man in the street, it was in an article in the Washington Post but it’s the same principal.
Similarly, hoover lost their trademark because it was used too commonely. I’m pretty sure that will have adversely affected their sales… It’s not surprising Apple are trying to crack down on 3rd party usage.
Not that they’re doing very well, many people I know use the word “iPod” to mean “Generic MP3 Player”.
nonsense said at Sep 26, 04:48 PM:
to david:
Beg your pardon, you are correct about the meaning of the word podcast. However you are wrong about apple having no choice in this legal matter.
When you say ‘have no choice’ what you actually mean is that in your opinion they would be foolish to take any other course of action.
The situation is of apple’s own making: They invented a good and popular gadget – so popular it has become the generic brand name that people use in the street, as corun points out.
to corun:
Argos and ebay both have run deliberate advert campaigns to attempt to get people to use their name as a verb (argos it, ebay it). Presumably this is not a conspirational plan to take legal action against all who fall for their ploy.
Google are in a sticky spot anyway because their name, though unique in spelling is phonetically similar to googol (the word for the number 1 followed by 100 zeroes). Perhaps its legend but I understand this is where they got the idea for the name for. So they really have no leg to stand on.
As regards hoover: Have you seen a vacuum cleaner sold under the name ‘hoover’ that was not made by the company hoover? I have not. Ever seen a ball point pen sold under the name ‘biro’ that was not made by biro? Thought not.
And hoover loosing their trademark? No they didnt.
—
moral:
if your trade name becomes popular people will use it excessively. (thats what popular means).
People are stupid, and often use words like ‘thingy’ or ‘whatsitcalled’. If I want to communicate with my fellow humans about an entity whose name neither of us knows, I will often derive a name based on tha names of things I know already, because such a name is shorter than the correct ‘generic’ term.
Eg: I see someone on the train with a cool looking mucis player.
I say: ‘wow, cool iPod’ or ‘wow, cool electronic audio playing and recording device’. See how this works? its not rocket science.
Anyway, legally protecting standard words like pod is outragous. You’d be pretty pissed off if someone legally took away your ability to use your name as your product name; Think of Mr McDonald and Mrs Pod.
David Emery said at Sep 26, 05:09 PM:
“Anyway, legally protecting standard words like pod is outragous. You’d be pretty pissed off if someone legally took away your ability to use your name as your product name; Think of Mr McDonald and Mrs Pod.”
It’s outrageous, but that doesn’t mean it’s not the law: Check out this story on Vanity Fair about Paul Frank, the brains behind the Paul Frank clothing brand:
http://www.vanityfair.com/features/general/articles/060822fege01
He now can’t start a company in his own name as he has parted ways with the company “Paul Frank”.
Corun said at Sep 26, 06:36 PM:
Sorry, I was wrong in my last post. You’re right, hoover hasn’t lost its trademark (Although it no longer has significant market share and the generalization of the word hoover could be partially to blame).
However, some things have. The yo-yo for example. Just take a look at this list (I don’t know how many of these have actually lost their trademark because I can’t view the page right now but the generification of these trademarks will almost certainly have had an adverse effect on the companies involved):
http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks
Also, Argos, Tesco and eBay are slightly different, in a way. They’re not products… They’re companies. Argos, Tesco and eBay have a lot less to fear. I mean, if someone made another company with the same name then I’m sure they’d complain too. But that’s essentially not going to happen, people just aren’t going to start calling all online bidding places “eBay” or all supermarkets “Tesco”.
And, er, Google didn’t need to pick on some guy and probably wouldn’t lose much or any profit from their name being genericized. But then, Google’s just evil really but, ofcourse, we all know that :-).
nonsense said at Sep 27, 09:00 AM:
The Paul Frank example is inconsequential. My point was and is that if Apple choose not to persue legal action ofer the ‘pod’ suffix, the ‘i’ prefix and the generic use of any of their trademarked terms, they in no way lose their existing trademarks. They can still prosecute for misuse thereof. Thus they are under no legal obligation to take any action at all.
Corun seems to understand this better; though people do use the term ‘ebay’ to mean ‘purchase or sell online’. The trademarks of successful products are doomed to become part of common language. It is neither desirable nor necessary to stop this.
David Emery said at Sep 27, 09:12 AM:
“The trademarks of successful products are doomed to become part of common language. It is neither desirable nor necessary to stop this.”
Obviously in the greater good it is undesirable, but from a companies view it certainly is as they loose control of their mark (they really do – check out Wikipedia on Trademarks ), and the law is on their side.
Doesn’t mean it’s good though, but it’s a grey area – obviously it would be ok for Apple to go after someone selling an “eyePod”, but not someone selling an “iPlayer”; quite where you’d draw the line is a difficult question.
nonsense said at Sep 27, 03:42 PM:
I think the wikipeia writing cited is American.
Trade marks are in any case only held for a certain number of years anyway.
My original point was that apple do have a choice. They dont HAVE to go after every tom dick and harry who has marketed some plastic crap as an ‘iSomething’, or ‘whateverPod’.
Your original article stated that they did not have a choice, and now, I am glad to see, you imply that they do. Good.
PS
surely no-one still thinks the ‘i’ thing is cool?
David Emery said at Sep 27, 03:47 PM:
No, I’m not implying that they have a choice, as they don’t.
All of these cases are American, as is PodcastReady so that’s the only law relevant in this case.
And no, I don’t think anyone thinks the ‘i’ thing is cool anymore (I certainly don’t).
Corun said at Sep 27, 06:59 PM:
iDo… Well, Ok, not really. :-P
David Emery said at Sep 27, 09:15 PM:
Also of relevance is this FAQ on trademarks by Mozilla – I’ve highlighted the most relevant bit:
“This document sets out to answer the common questions which arise about the use of the Mozilla Trademarks and Logos. Our code is free, but we do strictly enforce our trademark rights, we must, in order to keep them valid. This means that, while you have considerable freedom to redistribute and modify our software, there are tight restrictions on your ability to use the Mozilla name and logos, even when built into binaries that we provide.”
nonsense said at Oct 2, 08:25 AM:
have a look here for a general laugh:
http://www.theregister.co.uk/2006/09/29/letters_2909/
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