Palm legal puts kibosh on webOS theme for Android 31
If you’re a user of that other Linux-based smartphone operating system, then I hope you weren’t planning on making it look all webOSy. As it turns out, Palm’s legal team has taken an unkind view of the “Palm Pre Android Theme” and sent what amounts to a cease-and-desist letter to the developer. The primary objection is from the copyright standpoint, as Palm has trademarked both the images and the general user interface of webOS.
"While Palm appreciates that imitation is the most sincere form of flattery, we are concerned that the use of the name “Palm Pre Android Theme” for your product is likely to cause people to erroneously assume that your application is sponsored, authorized or has been approved by Palm, or that you have, or your company has, a relationship with Palm. Creation of such consumer confusion would constitute an infringement of Palm’s well-established trademark rights."
The webOS theme for Android phones was offered free-of-charge on the Android Market. Palm’s letter cites a puzzling “potential for consumer confusion,” as if the users of the webOS theme will tout that their Android-powered device is indeed a Palm phone. Such a claim is, in this blogger’s unlawyerly opinion, utter hogwash, as it is dependent upon a user downloading and installing the theme from the Android Market (having already bought an Android phone) and then for whatever reason passing it off as actually being a Palm device.
Not so hogwash: Palm making the claim based on trademark. As followers of such theme-smackdown-hijinks of the past may know, a company has to take steps to defend their trademark rights or they risk losing them. A charitable reading of Palm's letter would mean that Palm isn't looking to squash the little guy, they're looking to ensure they maintain their trademark rights if they need them later to fight bigger guys.
Palm has also targeted the BlackBerry theme with a takedown notice, though it does not appear that the same has been done for the iPhone. It’s likely that due to the non-sanctionable status of the iPhone theme (i.e. the iPhone must be jailbroken for any themes to be installed), Palm is not overly worried about the iPhone theme. There was also TealOS for PalmOS users, by the way.
In the end we hope that all of these themes can be re-released in a form that doesn't infringe on Palm's trademarks yet is still 'inspired' by the webOS. Because, as Palm noted, imitation is indeed the sincerest form of flattery.
[via: Engadget]
31 Comments
Expected since the palmOS variant TealOS got shot down before the Pre was even released and most didnt know how the OS worked int he first place.
Hmmm...is it the look and feel of the theme or the mention of "Palm" and "webOS" that concerns the lawyers? I wonder if changing the trademarked names might avoid the problem.
They have trademark protection for palm and webos, and copyright protection for all of the graphics. Basically in the end they cant have anything that is remotely similar to webos. Also Palm has design copyright and trademark protections.
they need to leave the bulling to apple... is it really that serious?
I am a little confused as to why Palm can "protect" the WebOS but Apple cannot "protect" it's iTunes product.
Don't get me wrong, I appreciate that the Pre can immitate the iPod and think Palm has all the rights in the world to do so. But why is Palm taking this stance? Hypocrites?
It's just a question so please don't verbally attack me.
It's a very good question. Unfortunately there's not a very good answer available.
The main reason is that iTunes is using an interface between the device and software, which most likely is not patented or proprietary. If it was apple could have done th esamething to palm. Since they havent, that meansthat apple has no legal protection over what they have. Could also be that palm is doing this in some round about way as they have exapple people on the job.
Palm has trademark and copyright protection for "Palm", "WebOS", as well as the look and feel (design) and all graphics used.
Scott brings up an interesting point. On the surface this question seems valid, but in my opinion it is really comparing two different things. The only similarity is in that each is 'protecting' something. From there it diverges. What is actually being protected is what matters most.
Palm is protecting a product, its look and feel, its brand, its trademark, the OS UI itself. As the article mentions this action helps to pre-empt a bigger fish later on from using this as a case example to do the same thing on a larger scale. Palm stands on strong legal grounds to do so.
Apple is protecting the USB handshaking communication protocol. A protocol it does not own and has no legal recourse as Palm is not infringing on any of Apple's trademarks. (of course we know what they are really protecting, i.e., their lockdown on music players that would compete with Apple's own -- this is not the same as protecting a UI of an Operating System that can fool people into thinking the device is endorsed by Palm)
The odds of someone buying a Pre thinking it's an iPhone or endorsed by Apple just because it syncs with iTunes is extremely low. Someone may very well buy an Android device thinking it can run WebOS after one of their friends/coworkers shows it to them. (No one on this forum of course, but we all know the general population is less technically savvy than our fellow forum members). The same goes for the TealOS on the Palm device.
This is not hypocritical. Hypocritical is Steve Jobs lashing out at the music industry for not opening up their music catalogs to the masses so anyone can build an mp3 player to access them, and then putting technical hurdles in place to ensure as many 3rd party music players as possible are locked out from iTunes. It makes business sense because it increases Apple's hardware sales, but it is indeed hypocritical in the truest sense of the word. Even Microsoft got bashed / sued for bundling Internet Explorer with Windows, but they did not prevent anyone from installing another browser with Windows, or only allow Microsoft hardware (e.g., mice / keyboards) to work with Windows.
In my opinion, Palm stands on stronger legal -and- moral grounds than Apple.
I am a little confused as to why Palm can "protect" the WebOS but Apple cannot "protect" it's iTunes product.
Don't get me wrong, I appreciate that the Pre can immitate the iPod and think Palm has all the rights in the world to do so. But why is Palm taking this stance? Hypocrites?
It's actually a little bit different. Palm isn't copying iTunes -- either the application or the interface. What Palm's doing is using the USB information that Apple devices send out (specifically, the VID), and mimicking it to gain access to iTunes directly. Apple doesn't have a copyright or patent on the VID; it's just a 6-digit code, that's broadcast by any USB device when it's plugged in.
The Pre, on the other hand, uses an interface that has design copyrights and patents. You can't just bogart those without the appropriate licensing.
If, for example, Palm had to delve into the iPhone/iPod firmware in order to sync with iTunes, that might get them in legal trouble. As it stands, the most trouble Palm could get in with their actions is a sanction from the USB-IF, and from what I understand, the most they could do is force Palm to remove the USB logo from the Pre's box, which would have almost no effect, since Palm could still call the Pre a USB device, and still have plug and play functionality in the Pre.
I think this was a mistake by Palm. Right now Palm has a huge backing not only because the Palm Pre is a great product but also because they have the awe of being the under dog. This action contradicts that under dog mentality and put them on par with Apple and being a bully.
I can certainly understand and respect Palm's perspective but I think they should choose their fights better. I don't think a theme is a fight worth fighting.
I disagree... As the underdog they dont want other devices stealing there thunder.
Lets say someone likes the form of the G1 but really likes webos. They might say oh i can get a WebOS theme for the G1 so I am ok with that, sale lost.
Except all the get is the look of webOS, not the functionality.
Right, but the point I was trying to get across is that there is potential to lose money on it.
I don't know how the actual theme works but I'm sure there is a huge difference between the theme and the Pre itself.
I am a Pre guy and under different circumstances or even at a different time this would be worth fighting for. I just think its horrible timing especially with all this iTunes stuff going around. It really makes make Palm look like the guy who can dish jokes out but upset when someone comes back with one at him.
Being a bully? The theme infringes upon their trademarks and blatantly stole copyrighted images from webOS, a double no-no.
Not an apple guy, and love my Pre, but this letter feels foolish after what Palm and Apple are going through with. I have no respect toward that quote.
I think Palm is right in this one. Especially after reading the article that was linked to about trademark rights. I assume that the developers could create a watermark on the software that states this is not an official Palm device or something to that extent. They could make some minute design changes that would not duplicate the exact look of Web OS. There are options for them and hopefully Palm would help steer these developers towards a workable compromise. This is totally different than than itunes battle. Imagine if Palm made an interface that looked exactly like itunes that people could download and use to sync to their Pre. That would be a closer comparison and Apple would jump all over it and be right..
The PRE is being called and "Apple Ipod" when seen by Itunes, and this is not a problem? I understand legally, it might not be, but Palm has basically stolen (i use this loosely) another parties product for their advantage, when here they realize someone using their stuff is not cool.
As far as I can tell, Apple has no legal protection over what devices can connect to iTunes. I could be wrong but from what I have seen I do not believe that they have a patent on how devices connect to itunes.
The only way I see that they could change this is to have some sort of proprietary transfer protocol which would require large amounts of funding and would leave all older idevices in the dark.
No lost in sales? So if i love the itune interface, but was about to buy a Palm Pre, i can easily say, hey you know what screw the ipod, because Palm Pre syncs with Apple's Itunes and is 8gn in size leaving me with tons o room for custom playlist which i can easy change randomly to switch music around. So now i no longer need an ipod since the palm Pre will do the same....guess what sale lost for Apple.
Like i said, i'm happy with both my phone and ipod, but remarks trying to backup Palm and against Apple are just fan boys trying to hide it. No offense...
Correct except in this case Apple has no legal ground to stand on.
Palm identifying itself as an ipod does not infringe on look, feel, or sales of ipods/iphones. Its a whole different animal which may or not be acceptable depending on their use of the USB port. Having a phone theme that looks identical to a Palm theme infringes on all sorts of trademarks that could have an effect on their sales. If they don't defend it, the will lose it and this company can't afford to lose any aspects of Web OS by it being copied and used on other phones hence taking away the only thing that is keeping them alive.
The difference is that nobody sees what the Pre calls itself in the USB protocol. There would be no customer confusion. Each customer knows that he has a Palm Pre that can sync with Apple iTunes; the trademarks are clear.
On the other hand, what the developer of the Android theme did was directly copy Palm images and name the theme with Palm trademarks. One could easily be confused into believing that Palm developed it or endorsed it.
Suppose, hopothetically of course, someone came up with a Zelda theme containing Legend of Zelda images for the Palm Pre and called it a Nintendo Zelda Theme using Nintendo trademarks. Nintendo would have the right to call for a cease and desist in that case too.
Nicely put... what I have been trying to say.
On top of that dynamically switching the USB Vendor ID is not something that can be stopped with legal action as its not a protected entity (ie copyright, patent etc).
Are we sure it isn't? "Apple" is trademarked, an argument could be made that the vendor ID that means "Apple" is as well.
The USB Vendor ID is setup by the USB-IF Compliance standards (usb.org). This is not a trade marked item. If palm created software or an app that said apple that would be trademark infringement. However since the trademark does not cover the venderid usage it is therefore not illegal for what palm is doing.
The look and feel of WebOS is part of the value of the product. It is the property of Palm and something they license with their product. If someone gives it away for free, then Palm doesn't have control of their own product. They would be damaged, because people would get a part of that value without buying the product from Palm.
Applie iTunes, on the other hand, is a free media purchase and organization product that Apple gives away for free. Palm does not interfere with Apple's ability to distribute that product. In fact, one could argue that Palm assists Apple by directing customers to Apple's media store. There would be no damages, no trademark confusion.
Would someone please make me an iphone theme for my Pre then? (since it has to be errr, jailbroken? or rooted to be installed)...
NOT!
Apple had the same reaction regarding the iPhone interface when it was originally released. People were creating iPhone themed skins for their Palm devices (myself included) and the word on "the streets" was that Apple WAS NOT happy about that either.
On and on and back and forth we go.
Legally Palm has every right to nix TealOS and this Android theme, especially due to the blatant naming no-no.
They are being consistent, too. While the Pre theme for jailbroken iPhones may still exist, the You Tube video showing it has been pulled at Palm's request.
At least people care enough about the Pre to spend the time to copy its theme. That alone is probably good news for Palm - their design has some fans. But legally they need to shut this down to preserve their rights.