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: BizMediaLaw Blog from Wahab, Riveles & Medenica LLC

MONOPOLY NINJAS

The technology monopoly game is an interesting range of variations on a single theme, the preservation of control over a market commodity. Intuitively, this would mean control over a proprietary technology, perhaps through patent or trade secret. However, it can also take the form of monopoly/control over the boundaries of the public domain with regard to trademarks and copyright. Both Apple and Google are prime examples of monopolistic (or allegedly monopolistic) interests that are using legal, business, and public opinion forums shape the public domain to propel their competitive edge.

In the ongoing Google/Author?s Guild dispute, Google is trying to cement the boundaries of the copyright fair use doctrine to sanction its full scale copying and indexing of thousands of copyrighted books. In short, since the free flow of information is the raw material with which Google makes its money (through the most powerful brand name for search related web driven applications; each with their own tensions: Google maps/privacy concerns, etc.), it is incumbent upon Google to preserve and even expand what the public domain encompasses. Unlike the Novartis? wars with Indian pharm manufacturers, which are clearly focused on the product?s formula, Google?s fight is over something that it does not produce at all. Hence the battle over the Library Project is not merely technological, it is legal and sociological; Google is trying to assure that the fair use line is drawn in its favor.

Similarly, Apple is engaged in a clandestine war of trademark interpretation. For a company that has been hailed as the antithesis of Microsoft?s anticompetitive practices, it has borne its fair share of criticism recently for its own tactics. One of the lesser known tactics is its shotgun filing of trademark oppositions to any marks that bear ?POD? or ?TUNES? in connection with the products or services that are iPod or music device related and the retail sale of music online, respectively. A trademark opposition proceeding involves a registered trademark holder filing a complaint with the US Patent and Trademark Office (?USPTO?), within 30 days of a potentially competing mark?s registration, to block that mark?s registration. The usual basis for such opposition is that the public would be confused as to the origin of goods if the potentially competing mark is allowed to be registered (i.e., the opposer asserts that the opposed mark will be viewed as the mark of the opposer.)

While the Apple assault on ?POD? derivatives does not offend common sense (it is after all a highly unique and non-descriptive term that has become almost synonymous with the Apple device), the parallel assault on all users of ?TUNES? attempts to deprive the language of a workaday descriptive term. Why should Apple have the ability to say that any use of TUNES in conjunction with music online is solely its domain? Again this is an attempt to control what is in the public domain (descriptive terms are typically not protected by trademark because doing so might unduly restrain the public?s use of the word as it was intended), by having the USPTO draw a line that favors Apple. And again, this is not an attempt to directly restrain the use of Apple?s technology or products, but to shift the boundaries of the English language to tilt the playing field in its favor. (visit www.uspto.gov for a list of oppositions by Apple against uses of TUNES.)

The most interesting aspect of the above approach to applying extreme market power is that it is stealthy like the ninja. By leveraging items outside of a company?s actual products? or technologies, the public is simply less aware of the impact and the very real relationship these actions bear to such companies? power.

Full post as published by BizMediaLaw Blog from Wahab, Riveles & Medenica LLC on August 08, 2007 (boomark / email).