Cease, desist … and, of course, pay!

(June 22, 2008)

It could have been a nice evening today, but to my great surprise, I found a not-so-nice e-mail in my Inbox – and at the same time, my parents found the same thing as snail mail in their mailbox at home.

To cut a long story short: Apple Inc. sent me (via a German lawyer) a »cease and desist« letter. They believe that the names CENSORED and CENSORED-s (sic!) violate their trademarks »Keynote« and »iTunes«.
Frankly, I do have a little bit of understanding in the first case. In fact, I saw it coming. I couldn’t expect that the uppercase letter »J« I put in the middle of the name, radically changing both the look and the pronounciation, was enough to stop Apple from sueing me, or could I?
The other case is a little bit more awkward because there simply is no such thing as CENSORED-s. I have written a program with a name that looks like the one they’re accusing me to use, but there is no ‘s’ at the end of the name! In the first two pages of the lengthy mail the lawyers sent me, they even did spell it correctly. But then, in all places that really matter, like the cease and desist form itself (»Unterlassungserklärung«) and the explanation why they think I’m violating their trademark, they constantly write the name with the additional ‘s’. So, in fact, even if I would sign that letter, I would commit myself not to use a product name I never used! (That flaw aside, I also don’t think that there’s a sufficient amount of similarity between »iTunes« and CENSORED.)

To make things worse, they chose an insane amount in controversy (»Gegenstandswert«) of 50,000 € each in both cases. That seems to be quite a lot, considering that both programs in questions are FOSS, meaning that I did neither pay nor earn anything for making them. Out of these 100,000 € in total, they compute a fee (»Geschäftsgebühr«) of nearly 1,800 € I’d have to pay if I sign the form.
Also, they set up a ridiculously short time frame to sign it: If I don’t send it back and pay the fee until 2008-06-26 (this Thursday), they’ll likely be sueing me. Mind you, I got the letter this evening (2008-06-22), because they sent it late Friday (2008-06-20, the e-mail is dated 16:09) and I was neither at home nor did I have internet access this weekend. That’s 6 days of time, but since it’s around a weekend, it’s effectively only 3.

The great question is now, what could I do? I can’t just sign the letter and pay the bill, because it’s factually wrong. On the other hand, if I take myself a lawyer, it might be too late to change anything in the matter and would maybe double the fee (assuming that my own lawyer would also use the ridiculous 100,000 € value as a baseline for his/her payment). Seems as if I’m screwed either way.

The only thing that’s clear is that both my presentation program and one of my iPod tools will be renamed soon. If you have a nice new non-Appleish name for these projects, please let me know :)

(Funny side fact 1: They don’t seem to give a sh*t about capitalization: When they compare Apple’s trademarks to my program names, they simply write all of them in upper case. They also happily misspell one of the names with a lowercase ‘j’ instead of an uppercase ‘J’, even though this detail makes all the difference in this specific case. But when they try to explain why the other program’s name is too similar to »iTunes«, they suddenly insist that capitalization matters.)

(Funny side fact 2: Today my iPod started behaving strangely, like suddenly rebooting at random intervals. Who knows, maybe Apple has some kind of remote auto-destruction feature built into their devices? ;)

Hint: If you leave a comment and it doesn’t appear here immediately, don’t worry – even though I have this neat captcha, I still use WordPress’ moderation system, i.e. I need to approve all comments manually. Since I’m going to be quite busy during the next days, don’t be sad if this takes too long.

EDIT (2008-06-23): I needed to edit this post so that the two infringing names do not occur here any longer. I’m sorry that this makes the whole text somewhat unintelligible :(

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