Topic: iGasm not making Apple smile.

[Pugnate]

http://www.macworld.co.uk/news/index.cfm?newsid=18110

 

Apple v Ann Summers in iGasm spat
Ann Summers attract's Apple's ire for iGasm sex toy advertising

Jonny Evans

High street adult retailer Ann Summers has landed itself in a heap of trouble with Apple.

The retail chain has been promoting a £30 sex toy called the iGasm, a device which connects to any music player and offers users an erotic vibrating treat in time to the beat.

A News of the World report claims Apple is furious about Ann Summer's promotion of the device, and is demanding all posters for the gadget be taken down, under threat of court action.

The neon-pink posters depict an underwear-clad female silhouette holding an oval white device with two cables - one connected to a pair of white headphones, the other heading down toward the female's knickers.

The sales pitch urges music fans to: "Go at it hard and fast with a pounding drum 'n' bass track or chill with an ambient classic."

Apple is claiming the ad to be an abuse of the silhouette-based images it uses in its own advertising.

Ann Summers hasn't bowed to Apple's threats, the report explains.

http://www.newsoftheworld.co.uk/ipod_1405.shtml

COMPUTER giants Apple are really worked up—over an Ann Summers sex toy that hooks up to your iPod.

Women all over Britain are saying yes, yes, yes to the £30 iGasm that plugs into a music player and delivers good vibrations that pulse to the beat.

But shocked iPod bosses are iRate—demanding stores take down all posters for the gadget or risk a fight in the iCourt.

The neon-pink ads feature a curvaceous girl with wires coming OUT of her MP3 player and INTO her knickers. And it's definitely turned on.

The sales guff teases: "Go at it hard and fast with a pounding drum 'n' bass track or chill with ambient classic."

But Apple lawyers claim the poster is a blatant rip-off of their own famous silhouette images used to flog iPods.

Their haughty legal letter to the shop chain adds: "We hope this request to remove it immediately will prevent us having to consider further action."

Despite that, Ann Summers boss Jacqueline Gold is saying no, no, no and joked: "Perhaps I can send them an iGasm to put a smile back on their faces!"

[Xessive]

The neon-pink ads feature a curvaceous girl with wires coming OUT of her MP3 player and INTO her knickers. And it's definitely turned on.

Somehow I'm turned on too. I like curvaceous silhouettes.

[Quemaqua]

How can you call a silhouette original?  Get over it, fuckers, your ads were never anything special to begin with.

[Xessive]

Silhouette art has been around for centuries.. That would be like getting sued for using an impressionist art style, or using a paintbrush for that matter!

[Ghandi]

Apple is just giving them more exposure in doing this...

[scottws]

Well in this case I think it's pretty clear that this company is taking advantage of Apple's advertising.  I mean come on:

1) black silhouette with the white cords, exactly like Apple uses
2) it hooks up to the iPod (among other devices)
3) it's called iGasm for Pete's sake.

I mean I think it's pretty clear cut here.

[Jedi]

Well in this case I think it's pretty clear that this company is taking advantage of Apple's advertising.  I mean come on:

1) black silhouette with the white cords, exactly like Apple uses
2) it hooks up to the iPod (among other devices)
3) it's called iGasm for Pete's sake.

I mean I think it's pretty clear cut here.

Yup it's called brand recognition.

[Pugnate]

Well in this case I think it's pretty clear that this company is taking advantage of Apple's advertising.  I mean come on:

1) black silhouette with the white cords, exactly like Apple uses
2) it hooks up to the iPod (among other devices)
3) it's called iGasm for Pete's sake.

I mean I think it's pretty clear cut here.

Yea I find it pretty obvious as well. I think we let our hate for certain things cloud our judgment, and according to Jedis, that's not right. I mean real Jedis... not that guy above me.

[Quemaqua]

I don't know what to think.  I mean, sure, it's just like Apple's ads, and that's pretty obvious... but all Apple did was put a black silhouette on an ugly colored background.  That's so artistically uninspired I just can't see why anyone would want to whine about someone infringing on it.  It's like taking a crap on the lawn and complaining that somebody else's crap looks just like yours.

[Pugnate]

You don't think the iGasm has anything to do with the iPod?

[Quemaqua]

 ... when did I say that?

[Pugnate]

No I know you didn't, but I am just saying the intent is to take advantage of the iPod's brand recognition, no matter how crappy it may be.

[scottws]

Exactly.

[wizall]

Yeah, I think this is a pretty straightforward case.  This iGasm company will lose. 

Tangentially, have you guys seen some of the gadgets girls have these days?  I was in a porn shop the other day looking for a gag gift and the range of options for chicks to pleasure themselves is insane.  This one--the idea of syncing up music--isn't a bad one.  Wish I had thought of it.

[Quemaqua]

Yes, it's obvious that they're going to lose, but to me this just seems like the whole patent thing.  "We patented silhouettes and colored backgrounds!  You can't use them!"  It's clear that the people's intent was to snatch some of the iPod's advertising glory with this move, I just don't see any logical way of arguing the point when all your ad is is a silhouette and a colored background.  The product doesn't look just like an iPod in the ad and the chords are going into her pants.  Looks different enough to me.  It's not like I'd confuse it with an iPod or believe it was made by Apple.

And the syncing music idea was done before.  The REZ trance vibrator for PS2.

[wizall]

And the syncing music idea was done before.  The REZ trance vibrator for PS2.

Good point.

[scottws]

Yes, it's obvious that they're going to lose, but to me this just seems like the whole patent thing.  "We patented silhouettes and colored backgrounds!  You can't use them!"  It's clear that the people's intent was to snatch some of the iPod's advertising glory with this move, I just don't see any logical way of arguing the point when all your ad is is a silhouette and a colored background.  The product doesn't look just like an iPod in the ad and the chords are going into her pants.  Looks different enough to me.  It's not like I'd confuse it with an iPod or believe it was made by Apple.

It doesn't matter what you think of Apple's advertising methods, Que.  It matters that clearly the iGasm is taking unfair advantage of the iPod brand advertising to sell itself.  There is probably a stack of common law decisions a mile high that set precedent in cases similar to this one, and my guess is that 99% of them will support Apple's side.  That is what matters.

Personally I don't think this is anything like some of the copyright cases.  I think it's immediately obvious that the iGasm is basically stealing Apple's ideas (both the art and the name).  Apple has probably spent hundreds of millions of dollars creating the iPod brand.  Regardless of what you think of its methods of doing so, artistic or otherwise, it has a right to protect its brand.

Think of it this way:  when you first saw the image, I bet the one of the first things you thought, if not the very first thing, was "iPod."  Even if you thought "generic silhouette art," which I highly doubt unless you're deluding yourself, the fact that most other people would recognize that as being very similar to the way that Apple markets the iPod means that Apple has successfully created iPod brand recognition by using simple silhouette art in combination with the white device/wires.  And that's what this case is going to be about.

Like I said, personally to me it is pretty clear here that this iGasm is in the wrong.

[JacksRag(e)]

And I don't know if this has been mentioned before, but I think because of the brand recognition it's created, Apple has its image to protect, too.  It's created this image, and now with this iGasm out there, you know the vast majority of the people are gonna just think this is something Apple came up with, too.  And I would think Apple doesn't want people to be equating their stuff with these ahem, recreational devices.

[Quemaqua]

You really don't need to talk down to me, I'm not arguing any of those points.  I already said they'll lose and I don't think there's any reason they shouldn't, really.  This is my personal, anti-advertising opinion on the subject.  I think the whole debacle is ridiculous on a personal level.  I'm well aware of the laws and what the iGasm people are trying to do, and I don't really think it's *wrong* of Apple to pursue it from a business standpoint.  The iGasm people are trying to profit from somebody else's work.  But in my own mind it's just sort of sad that what's essentially being said is "you may not use a silhouette on a neon background to advertise your product because somebody else has already done it".  It just seems like... it's so super simple, how can you tell somebody not to do that?  And the thing about me being able to tell the difference... that was a personal comment, and that wasn't clear.  I didn't mean to imply that I thought nobody would fall for it.  I'm really just talking from a conceptual standpoint.  It's the same sort of feeling I get with patent stuff.  "I did it first, now you can't!"  In a lot of cases, that's really true.  The company came up with something original, somebody ripped it off.  But when something gets to be on such a basic level, sometimes my mind just can't deal with it and I get in a "what's the world coming to?" kind of mood.

[scottws]

I don't think it's as simple as a black silhouette with a colored background.  There is also the addition of the white device and wires.

I believe I know what you are thinking when you feel like it's almost as if Apple has put a patent on the style, but really, how many other brands do you know have used silhouette art as their main style of advertising?  There might be some, but I can't think of any.  It's not like this is some sort of really popular art in advertising that everyone uses or everyone wants to use.

I think you could easily get away with using silhouette art in advertising without Apple suing you so long as you didn't use the white wires idea and otherwise had some sort of style that didn't make it seem obvious that you were trying to completely rip off of someone else's idea.

I apologize for making it seem like I was talking down to you.  I didn't mean to.  I guess I just felt like you didn't really get what this was about.  I just don't t think this is anything like those dumb patents like one-click checkout or that cursor thing Cobra951 always brings up in patent threads.  I don't think all good ideas should be patentable.  I don't know where you draw the line, though.  I'm going off on a tangent now.

In any case I think it's completely different:  "Hey!  One-click checkout!  That's a great idea!  Let's implement it on our site,"  and "Hey!  Let's completely steal Apple's iPod advertising style to promote our product!"  I just don't see the similarities at all.

[Quemaqua]

Again, I don't either, except from a conceptual standpoint of what one can and cannot do.  No, I don't think the style they're using is super popular and that everybody wants to use it... but what happens when Wal-Mart starts suing people for using yellow smiley faces, you know?  I don't think that this is a portent for that or anything, but it's just what comes to my mind as an artist.  When you live and breathe art, it becomes quickly apparent to you that there is no such thing as true originality, only true originality in terms combining things that already exist in unique ways.  What if, and I can guarantee you that this is the truth, some guy out there already did a piece of art that featured a silhouette on a neon background with some item colored differently from the silhouette and background to differentiate it?  Does that give him to right to sue Apple for using "his" idea ,which was probably based on something else from the 1970s or 80s that featured a neon background and silhouettes... like, I don't know, every kama sutra poster that came out of either decade?  This kind of shit is really hard to judge, you know?  Because I guarantee you that if you look hard enough, you're going to find that guy out there.  I guarantee you.  Okay, maybe he wasn't using it for advertising.  Does that mean he has no rights to whatever it was he came up with?  In fact, now that I'm really thinking of it, I can already conjure a poster I remember from long before the iPod was even conceived that was almost identical to the iPod ads.  Saw it in a local poster shop I used to frequent and my friend bought it.  The kama sutra thing brought it to mind, because it was with a bunch of those, along with all the marijuana "instruction manual" posters.  It was a neon green background, a black silhouette of a hiply-dressed woman, and the woman was holding a red rose.  Okay, it isn't a white iPod and chord, but it's the exact same concept, and it was done almost exactly the same way, too.  If the artist who created that came forward and sued Apple, do you think they'd win?  Would they have a right to?

You see what I'm getting at here?  I'm not trying to be belligerent or do my usual Apple-condemnation.  I just find it extremely difficult to deal with this kind of thing on a legal level.  In the case of the iGasm, I think the transgression is pretty clear, but on the whole this sort of thing is just far too ambiguous to me and really gets me feeling strange about what rights people should or shouldn't have.

[Jedi]

Wal-Mart didn’t create the yellow smiley face, so they have no rights to sue. Apple didn’t create silhouettes so they can’t sue you for doing such art or whatever – BUT the big difference here is the combination of the silhouette, neon background, and the white wires/device. That combination is a brand and that’s what Apple is trying to protect.
Wal-Mart would have had to do something other than just a generic yellow face in order to start protecting a brand.

[WindAndConfusion]

What if, and I can guarantee you that this is the truth, some guy out there already did a piece of art that featured a silhouette on a neon background with some item colored differently from the silhouette and background to differentiate it?  Does that give him to right to sue Apple for using "his" idea ,which was probably based on something else from the 1970s or 80s that featured a neon background and silhouettes... like, I don't know, every kama sutra poster that came out of either decade? 

That's not even close to how trademark law works. The artist would need to have a well-known identity built up around that particular artistic style, and he'd have to show* that Apple's advertising was diluting that identity.
*"Show" would mean "preponderance of evidence" (rather than "beyond reasonable doubt"), so almost any lame excuse counts.

Anyway, artists fall into kind of a weird area with respect to trademark law. Art is generally considered to be artistic, rather than economic, even when dealing with commercial artists (eg Andy Warhol). That's why you can get away with paintings like these:

See, the white and red style of the Campbell's label is subject to trademark, but a representation of the Campbell's label isn't.

This kind of shit is really hard to judge, you know? 

Well, d'uh. That's (supposedly) why we have a legal system.

Because I guarantee you that if you look hard enough, you're going to find that guy out there.  I guarantee you.  Okay, maybe he wasn't using it for advertising.  Does that mean he has no rights to whatever it was he came up with?  In fact, now that I'm really thinking of it, I can already conjure a poster I remember from long before the iPod was even conceived that was almost identical to the iPod ads.  Saw it in a local poster shop I used to frequent and my friend bought it.  The kama sutra thing brought it to mind, because it was with a bunch of those, along with all the marijuana "instruction manual" posters.  It was a neon green background, a black silhouette of a hiply-dressed woman, and the woman was holding a red rose.  Okay, it isn't a white iPod and chord, but it's the exact same concept, and it was done almost exactly the same way, too.  If the artist who created that came forward and sued Apple, do you think they'd win?  Would they have a right to?

Was the poster part of an advertising campaign that established a commercial identity? Does Apple's advertising dilute that identity?

[Quemaqua]

Ugh.  You guys are taking me way too literally.  But reading my stuff again, that's pretty much my fault.  I'm not arguing this from a physical, logical, real standpoint.  I'm arguing from an anti-advertising, I-have-no-respect-for-this-stuff kind of viewpoint.  One guy comes up with something, another guy steals it and uses it to establish his product, now he owns it and the first guy can't use it.  I just... I don't understand art used for business purposes.  I can't do it.  I've tried, I fail every time.  I'm just musing about stuff here, not attempting to pose any of these ideas as logical truth or potential circumstance.  Reading again, I realize I didn't state it too well at all, which I guess is just because I was just sort of talking to myself.

I don't think that this is a portent for that or anything, but it's just what comes to my mind as an artist.

I sort of meant that to be a statement more about that I know none of this is the way it is, but why is it the way it is, and why couldn't it or shouldn't it be some other way, and is any of it really right or wrong?  Being the kind of artist I am, I just don't get it.  I mean, I understand the principles behind what people want to protect and stuff, but it doesn't register to me on a fundamental level because I see art strictly as a means to communicate emotion or expand on the conveyance of emotional ideals (a story, characters, whatever).

Eh, I don't quite know how to say it.

[WindAndConfusion]

Also, this case is probably going to come down to whether or not the Ann Summers logo is enough to make people realize that

According to corporate lore (which is of course infallible), Apple is required to sue or else their trademark becomes diluted and eventually unenforceable. (The famous example of this is Xerox.)

[WindAndConfusion]

Ugh.  You guys are taking me way too literally.  But reading my stuff again, that's pretty much my fault.  I'm not arguing this from a physical, logical, real standpoint.  I'm arguing from an anti-advertising, I-have-no-respect-for-this-stuff kind of viewpoint. 

I get that you're arguing over the moral rather than legal aspects of the issue. I just don't think you understand the legal aspect well enough to make an argument.

If I were Judge Awesome, source of all precedent, I'd force Ann Summers to reprint their advertisements to make it more clear that they have nothing to do with Apple (except that they're making unlicensed iPod accessories). And then I'd make Apple pay for the reprinting. And possibly legal costs.

[Quemaqua]

See, what you don't get is that I'm not arguing anything.

[WindAndConfusion]

See, what you don't get is that I'm not arguing anything.

I'm not arguing this from a physical, logical, real standpoint.  I'm arguing from an anti-advertising, I-have-no-respect-for-this-stuff kind of viewpoint.

[Quemaqua]

Poor choice of words.  If I was arguing anything, I'd have a point.  I'm just considering stuff.

[scottws]

If I were Judge Awesome, source of all precedent, I'd force Ann Summers to reprint their advertisements to make it more clear that they have nothing to do with Apple (except that they're making unlicensed iPod accessories). And then I'd make Apple pay for the reprinting. And possibly legal costs.

I don't think I'd do that as a judge.  Then what you'll get are companies that purposely use the brand recognition of other companies to hock their own product, knowing that they'll simply be forced to change it later at the cost of the company they stole the advertising idea from.

[Cobra951]

But on the other hand, the concept of IP has gone way over the top in this country (at least, since there are others which bow to the US view, or their own corporate elite).  I have no sympathy at all for lawsuits by big companies against little guys over IP.  I know it has to be done.  I won't cheer or help them along in any way.

[WindAndConfusion]

I don't think I'd do that as a judge.  Then what you'll get are companies that purposely use the brand recognition of other companies to hock their own product, knowing that they'll simply be forced to change it later at the cost of the company they stole the advertising idea from.

Why would someone ever do that? At best they'd get to run two nearly identical advertising campaigns for the price of one (plus legal fees).

But anyway, that comment was off-the-cuff and I didn't bother to fully explain my reasoning. First, the court would be protecting Apple's trademark, so naturally the cost should be Apple's burden. Second, I am assuming that Ann Summers made an honest mistake, and did not intend to infringe any trademarks. Third, I am assuming neither company has a history of trademark abuses. Fourth, I'm assuming that the cost of printing some posters is small compared to the amount of money that Apple spends maintaining their trademark. (This how many iPod posters they pay to get printed anyway.)