Dear Murphmonster: A patent and a trademark are different things

Apple has patented the layout of its stores. So now, if you want to open a shop with tables in it where people like at IT products I suspect you can’t.

Why does this matter? First, because that seems, at the very least to be absurd. How can you patent where you put a table?

Second, because you can apparently patent where you put a table you do as a result create an entirely artificial property right that means that Apple can now extract a rent from ownership of that right.

And if you want to know where that leads, listen to this. This is the direction in which capitalism is moving by seeking to control all aspects of our lives, and in the process are seeking to control all we do.

Please do not think we live in a world of benevolent corporations. We most definitely do not.

He actually links to something that gets it right:

Apple has managed to secure a court ruling from the European Court of Justice allowing it to trademark the layout of all Apple retail stores within the European Union.

A trademark is a very different thing from a patent. The confusion comes from the fact that these days trademarks are often called “design patents”.

Apple does not own a patent on having a store in which you look at electronics sitting on tables. It has a trademark on the specific designs that it uses. The effect of which is to stop people passing off as Apple Stores by, say, calling themselves Aple Stores and displaying cheap Android devices in exactly the same manner as Apple does in its own stores.

This is not a new thing in law either. I recall one from decades ago where Selfridges won a judgement against an electrical goods retailer calling itself Sell Fridges. You can’t stick a red triangle on a bottle of beer because that is a Bass trademark (and has been for centuries, it was, I think, the first ever granted trademark).

And a tiny piece of advice for the MonsterMurph. If you’re going to try to comment upon patent and trademark law it would help if you had the first clue about either of them.

28 comments on “Dear Murphmonster: A patent and a trademark are different things

  1. Whereas in his world view a benevolent state such as the one which, to quote one of his acolytes ‘immeasurably changed Britain for the better’ before ‘neoLiberal’ thinking captured it in 1979, and which apparently presided over a mass cover up of some of its denizens undertaking systematic molestation of small children, is to be trusted whilst corporations are not?

  2. The summary EU judgement is quite clear why the trademark (which already exists in the USA) has been extended to the EU.

    Richard thinks “This is the direction in which capitalism is moving by seeking to control all aspects of our lives”.

    Of course it’s nothing of the sort. As you point out, trademarks have been with us for centuries. I think you’re right about the Bass Brewery. If you have worked hard to create a link between something and your brand, you should of course be able to defend that. Only common sense. My favourite was the London market stall owner who got into trouble for calling his stall (using the distinctive font) ‘arrods.

    I wonder how the MurphMonster would react if someone tried to trademark “Tax Research UK”.

  3. And a tiny piece of advice for the MonsterMurph. If you’re going to try to comment upon accountancy and tax law it would help if you had the first clue about either of them.

  4. This seems to be an astonishingly broad definition of a “trademark”, which was supposed to mean, well, a mark that distinguishes your brand. On the product.

    There is a valid criticism of modern capitalism here. Property rights are an arbitrary social construct and basically represent how far we as a collective consider a person’s personal agency to extend (including a legal person of course). So there is always a valid case for saying, “woah, steady on, you’ve gone too far here”. Many people disapprove of copyrights for instance. I disagree, but there is no way to “prove” either side right. But if the property right is in a utilitarian sense extending so far that it’s counterproductive, there is a case for reining it in.

    Apple are a shit company and have been since they stopped being a vehicle for Wozniak’s nerd genius. They are notorious for vexatious litigation around intellectual property; if they’d had their way the GUI would have been stillborn, trapped in Jobs’s world. I’m surprised they haven’t tried to claim ownership of the word “Job”. Every blow job you get, you have to send them a dollar.

    This seems to me to be over the line. You can’t trademark an ugly shop full of wankers. It is a classic case where current non-free market capitalism is over the line.

  5. Apple have created a rod with which they can beat themselves senseless. They can’t change their shop layout now. Every other business changes their marketing to match what the customer wants. Apple is doing it the other way round. That’s fine for now but when they have to do a revamp they will lose the trademark protection.

  6. He usually thinks the public are so pathetic and helpless that they must be led through life by the hand of the state. So you’d think he’d agree with Apple trademarking their store layout so us idiots don’t accidentally buy a pillow case instead of an iPhone… or something.

  7. And just why would the ignorance train that is Richard Murphy come to a stop at the station marked ‘Trademarks & Patents’?

  8. So, a company with a rep for aggressive litigation means that Capitalism is intent on controlling every aspect of our lives? The from a far-left bozo who really does want to control every aspect of our lives?

  9. My favourite tale is Michael Rowe who had a software company. He called it Mike Rowe Soft until Gates’ lawyers caught up with him.
    Amazon tried to patent (or copyright) “One click” purchasing. The judge threw it out because it was too obvious a process to patent.

  10. Ritchie: “I don’t believe anyone would mistake another store for an Apple store”

    Commenter: “This actually happened in China. ”

    Ritchie: “The IP is not in China. Next?”

    Perhaps someone should point out that China isn’t known for its strict enforcement of IP, and perhaps also that Apple may want to make sure a similar situation doesn’t arise in Europe?

  11. I love the implication of the post – and the comments thread really is hysterical – to paraphrase Lord Sugar ‘ he hasn’t got a bloody clue’ and as the excellent Dennis points out his ignorance is certainly not limited to patents or trademarks – basically he is saying that he doesn’t agree with trademark protection, except in exceptional circumstances. It’s rather similar to the ‘Courageous state’s ban on all forms of advertising. When I asked him whether this would apply to state entities his response, and that of his sockpuppets was merely to shout ‘troll’ – and ignore the obvious implication that clearly this was his position and that the only countries that this kind of stricture applied in were Cuba and North Korea. (and even in the former I’m not entirely sure) Thus Tim, your only ‘lie’ was to accuse him and the other TJN alumnus of being teenage Trots. Their beliefs are still well intact, even though both are over 50 I believe..

  12. Bottles of Bass appear in A Bar at Folies- Bergere by Manet. Wonder if he got sued by Bass for passing off a painting of a bottle of beer as the real thing?
    And Timothy I note the fact that you don’t have the first clue about tax does not stop you commenting on it (as Interested would say) in a “prolix” manner.

  13. Ritchie: “I don’t believe anyone would mistake another store for an Apple store”

    Both Thailand and Nigeria have Apple resellers which deck out their store to look confusingly like the real thing. It’s only when you try to buy an unlocked iPhone that you find it’s a reseller, unless you are pretty familiar with genuine Apple stores.

  14. He’s got a post up today decrying private oil companies investing in oil exploration. He thinks the money ought to be spent investing in renewables. Fortunately, Ritchie isn’t on the board of private oil companies.

  15. I seem to recall Murphy uses and has enthusiastically endorsed Apple computers and he certainly uses Amazon for promotion and sale of his teenage scribblings.

    A prime example of the Diane Abbott school of do as I say not as I do (and various other “socialists” ad nauseam)approach to criticism of things they use themselves.

  16. So, a company with a rep for aggressive litigation means that Capitalism is intent on controlling every aspect of our lives?

    I think it’s fair that some capitalists are, in the Progressivised market. Steve Jobs was. That creepy bunch at Google certainly are. Their business paradigm is basically governmentalist. Emphasis on “mentalist”. That doesn’t mean that they either can, or will, but I believe it’s the filter through which they view reality.

  17. Ian B – Apple turned crap after Wozniak left? You mean after the Apple II but before the Mac? That was 30 years ago, man. If Wozniak had had his way Apple would have continued touting the Lisa, and by now they’d be a footnote in personal computing history. It wasn’t Jobs that nearly killed Apple. It was Gil Amelio. John Sculley and Michael Spindler nursed it through the doldrums but it wasn’t until the return of Jobs that it truly recovered. I’ve been writing Mac software since about 1986, first in Pascal, then C, then C++ and now Objective C (I have yet to learn Swift). They’re astonishingly good at innovation. Yes, Jobs was a deeply weird and probably quite unpleasant person, but to have presided over a resurgence of Apple’s fortunes to the point where its market cap is twice that of Microsoft is pretty extraordinary. And right now Mac OS X is vastly, unfathomably better than Windows and at least as good as Linux while iOS edges out Android in ease of development and deployability (in terms of functionality they’re neck-and-neck).

    As for the store layout, in countries without actual Apple Stores their products are usually sold through outlets badged as Apple Authorised Resellers. The ones here consciously ape the spare aesthetic of the real Apple version, with lots of open space, a few machines on spotless white plinths and acolytes in polo shirts and chinos hovering unobtrusively. That’s a design schema I can quite easily see being worthy of IP protection – in fact I imagine Apple insists on its adoption as a means of brand differentiation and recognition. The current climate for IP regulation is deranged, of course, but it’s one in which companies have to operate. Failure to assert a right is tantamount to waiving it. The deleterious side-effect of this is the rise of the patent troll (or trademark troll). But that’s the world we live in. Change it if you can.

  18. Their last actual good computer was the Apple II. Lisa (a Jobs project btw) was a turd, and the first that really demonstrated his idea that a computer would be a controlled environment in which the user is given what Jobs thinks is best for them. You couldn’t install any other software. You couldn’t write software. It was intrinsically crippled. The Mac was better but underpowered, and began the strategy thereafter of selling overpriced, underpowered products purely on the basis of “style”. Luckily the PC market gave us what we needed; practical boxes of bits and bobs that the user controlled, bound together by a generalised operating system, and fiercely competitive.

    Jobs never had any fucking idea what a computer was for, and continued to bang on and on with thinking what shape the box was mattered the most until the hardware became sufficiently powerful thanks to Moore’s Law that things like the iMac could offer decent functionality. There has been negligible general innovation from Apple since the genuinely remarkable Apple II; everything else was just Jobs’s quest to put it in the right box, a monomania that rivals Clive Sinclair’s desperation to put anything he produced in the smallest box. Including an electric car.

  19. Well, that’s certainly an idiosyncratic viewpoint. It’s not one that anyone I know who actually gets paid to write software would agree with, but it’s…original.

    Actually, no, it’s idiotic. If you don’t know, for example, how genuinely innovative was NeXTSTEP (which has mutated into OS X and iOS) then you’re not arguing from an informed standpoint. I’ve been doing this for a living my entire working life. I know whereof I speak. You have your viewpoint. I guess you’re also welcome to tell Tim Newman how the oil industry works if you like. I don’t want this to veer off into a Holy War, because they always generate more heat than light.

  20. Bloke in Costa Rica>>The deleterious side-effect of this is the rise of the patent troll (or trademark troll).

    You can’t trademark troll in the same way you can patent troll – marks are use-it-or-lose-it. You can’t just sit on them for years.

    You can also lose them if they become generic.

  21. ababcab: you’re the expert. But what I meant by trademark troll was when some huge and unappealing multinational sues a small business over a spurious similarity between logos or names, say. It’s not the same as patent trolling but to my mind it seems to derive from the same necessity under current law to aggressively defend IP, viz. failure to do so can lead to loss of patent/trademark thereby leading to overzealous litigation and generally distasteful outcomes.

  22. @BiCR, you’re looking at the Apple environment from a developer’s point of view, not necessarily a user or consumer’s pov. Apple may have a very good development environment and the software may be very easy to use, but is it what the vast majority of people are comfortable with? Look at how Microsoft are cocking up the start button in Win8 at how easy it to make something easier to use but in reality loses customers goodwill.

  23. BiCR
    ‘And right now Mac OS X is vastly, unfathomably better than Windows and at least as good as Linux while iOS edges out Android in ease of development and deployability (in terms of functionality they’re neck-and-neck).’ Smacks of fanyboyism. You dont work on the other systems so you cannot compare. As for Apple ? No doubt good stuff , but way overpriced. I can (and have) built pc’s to same or better specs as a Mac for half the price.

  24. Errr no, sorry. I work on all of them (as in use) and develop on all of them. This isn’t some irrational attachment to one platform or the other, but the voice of a couple of decades’ worth of experience. The cost of a machine is a nugatory factor anyway. If it makes me 10% more efficient it’s paid for itself in a week.

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