My interest was piqued by a piece in the news which said that Apple had trademarked their store design. The trademark includes such comically broad terms as “a clear glass storefront surrounded by a paneled facade” and “multi-tiered shelving along the side walls” (1). If you do any work in retail, you’ve likely done a store that would fit this description. Several, probably. This month. My immediate outrage at this dovetailed nicely with the simmering angst I feel about Apple having ridiculous software patents, such as the patent that gives them sole dominion over rounded squares.
It needs to be noted here that patent law and trademark law are separate ways of protecting two different types of intellectual property. Patents are meant to provide protection for a product or process that is new, useful and non-obvious. But patent law hasn’t really caught up with the digital age and the number of patents issued for software design has exploded recently, which is what allows Apple to hold patents for such new and non-obvious “inventions” such as rounded corners on their icons and devices. Now patent trolls can sit on stacks of vaguely written software patents and stifle innovation with the threat of litigation. Would you put your own money on the line when it’s likely that any software you write violates hundreds of patents? Apple isn’t the only culprit; Google recently overpaid for Motorola, and the speculation is that Google was after the patents held by Motorola more so than anything else. Apple just happens to be the most visible and defensive.
Trademarks, by contrast, are meant to protect the both the consumer and the public image of a person or business by preventing surly characters from putting a trusted name or logo on a shoddy product. Speculation is that Apple secured trademark protection for their store design in order to give itself the legal muscle to prosecute knock-off stores in China (2). But trademarks are not generally recognized across borders, and China is notoriously disinterested in protecting intellectual property.
There are a couple of ways to look at this from a broad design perspective. One way to look at it is that stealing ideas undermines innovation, because if people know that their ideas will just be stolen, they won’t bother to create anything to begin with. This is why patents were invented in the first place, to protect good ideas for a given amount of time so that people could feel free to invent. However, the fashion industry doesn’t have copyright protection, yet enjoys a lot of creativity. This is because when designs are copied and become “mainstream”, the desire for something fresh spurs new designs. If you have the time and the interest, NPR’s Planet Money has a great summary of this phenomenon (3).
More specifically and forebodingly, I can also see ramifications from a liability standpoint. Now that there is precedent for broad trademarks on storefront and layout, who is responsible for the research to determine if a given design is in violation of a trademark? Who gets named in the lawsuit if the design of a store infringes on a trademark? And for those of you who trust companies to sensibly apply their trademark protection only to clear violators in competing market sectors, remember that Apple sent a cease-and-desist letter to a family-owned German coffee shop because its logo had an apple in it (4).
So is Apple an insecure bully determined to drown any challenger in paperwork and lawsuits, or a justified defender of its own small line of elegant products? None of the above hypotheticals get me any closer to closure. Saying someone should just suck it up and let their ideas get copied in service of the greater good sounds just as ridiculous as trademarking “rectangular tables arranged in a line”. On the other hand, I don’t want to preserve the ability for a well-equipped antagonizer to just toss cease-and-desist letters out, which causes enormous problems for accused infringers at nearly no cost or effort on the part of the accuser. Patent (and possibly trademark) reform to cut the sheer volume of potential claims is a must. I also think as plain-language forms would be a boon to innovators and designers, so that with a little time even a legal layperson can determine their risk. Teasing out the language is probably best left to a lawyer, but surely there has to be some happy medium.