Speaker 1: Steve Jobs had a pension for secrecy and a talent
Speaker 1: for building up the public's interest until he introduced the
Speaker 1: name of a new product. A classic is the two
Speaker 1: thousand seven introduction of what has become Apple's largest business,
Speaker 1: an iPod, a phone, and an Internet communicator, an iPod
Speaker 1: a phone. Are you getting it? These are not three
Speaker 1: separate devices. This is one device, and we are calling
Speaker 1: it iPhone. Apple is still just as obsessed with secrecy,
Speaker 1: but there have been leaks about the next iPhone that
Speaker 1: will launch later this year. A stainless steel and glass body,
Speaker 1: different screen technology, and a three D sensor that recognizes
Speaker 1: your face. What we don't know its name. It's one
Speaker 1: of Apple's most fiercely guarded secrets. It may be called
Speaker 1: the iPhone X to celebrate its tenth anniversary, or iPhone pro,
Speaker 1: but Tim Cook, following Job strategy, doesn't want anyone to
Speaker 1: know for sure until he says that name on stage.
Speaker 1: My guests are Michael Rishard, professor at Villanova University School
Speaker 1: of Law, and Brian Conroy, a commercial and trademarks listitor
Speaker 1: at Rennick's List. Michael, we've heard a lot about Apple
Speaker 1: and it's patent wars, but not so much about trademark.
Speaker 1: Explain the difference between a patent and a trademark. Sure
Speaker 1: of patent is protection that you get on an invention
Speaker 1: you have, and at protection excludes the world from using
Speaker 1: that invention. A trademark, on the other hand, is more
Speaker 1: of a creature of commerce. It's what you call your device,
Speaker 1: or it can be a logo, or it can be
Speaker 1: product packaging. But it's something that is distinctive to your
Speaker 1: product that causes people to reckon knives that it's associated
Speaker 1: with your product and not somebody else's. And Apple has
Speaker 1: used techniques over the years to keep its product name secret.
Speaker 1: Why what is the importance of filing for a trademark
Speaker 1: and keeping it secret until launch? Well, the reason you
Speaker 1: file for a trademark is to lock out other people
Speaker 1: from filing on the same mark, and so that's why
Speaker 1: you do it. The problem is, when you file for
Speaker 1: a mark, the whole point of it typically is to
Speaker 1: let the world know that you're doing it so nobody
Speaker 1: else picks the same mark. However, if you are into
Speaker 1: marketing and keeping your name secret, which Apple is not
Speaker 1: every company is, but Apple is, then it's very difficult
Speaker 1: to file your mark and also keep it secret so
Speaker 1: that you can have the Steve jobs like we now
Speaker 1: have to give you the iPhone reveal at an event
Speaker 1: where everybody can do and awe. Brian, what's the current
Speaker 1: approach used by Google, Amazon and other tech companies that
Speaker 1: exploits a rule in the US Trademark Act. Um, Well,
Speaker 1: it's a it's a rule that's not just in the
Speaker 1: U S Trademark Act. It's a rule that comes from
Speaker 1: a treaty dating back to the eighteen hundreds, and so
Speaker 1: pretty much every country has something similar, and it basically
Speaker 1: allows you to file for a trademark in one of
Speaker 1: the countries that's a signatory to the Convention, and then
Speaker 1: if you apply in another country that's also signed up
Speaker 1: to the Convention, which as I say, most are, including
Speaker 1: the US, then you have what would be a six
Speaker 1: month priority window where your application in the US is
Speaker 1: afforded the same dat of application as the application you
Speaker 1: filed in the first country. So the technique that a
Speaker 1: lot of the big corporations are using is to file
Speaker 1: their first application, which is their priority application, in a
Speaker 1: jurisdiction that doesn't have an online searchable database, so there's
Speaker 1: no way for most people to know that the trademark
Speaker 1: has been filed, and therefore they kind of get to
Speaker 1: have their cake and eat it. They get the priority
Speaker 1: date so that no one else is going to be
Speaker 1: able to jump ahead of them, but they also get
Speaker 1: the secrecy so that nobody knows they've done it, so
Speaker 1: they can apply for their US trademark after they announce
Speaker 1: whatever it's going to be, the iPhone X, but they
Speaker 1: already have a date for filing for that from the
Speaker 1: other country previously. So tell us what you did to
Speaker 1: spoil Tim Cook's surprise names last year. Um, Well, what
Speaker 1: I noticed was a pattern that Apple used. So as
Speaker 1: I said, there there is a number of countries where
Speaker 1: there are no online searchable databases. One of them is Jamaica.
Speaker 1: And I noticed that in two thousands and sixteen two
Speaker 1: two thousand and sixteen, nearly all of Apple's secrets, if
Speaker 1: I could ca of that, trademarks were filed in Jamaica
Speaker 1: as a priority filing date, and then the US application
Speaker 1: followed sometime within the next six months. So I said
Speaker 1: to my boss, I've got a crazy idea. UM, I
Speaker 1: think I can find out the names of the next
Speaker 1: Apple products that are going to be launched at the
Speaker 1: big launch event coming up, and I want to hire
Speaker 1: a local agent in Jamaica to go into the Jamaican
Speaker 1: trademark office and do a local search and see if
Speaker 1: I can find any filings there that suggest what the
Speaker 1: next names are going to be. And you found them,
Speaker 1: I did, yeah, well, well sort of, yeah, I found
Speaker 1: the iPhone seven and iPhone seven plus, which were announced
Speaker 1: at the next event. But then the touch bar and
Speaker 1: some of the other products like EarPods weren't announced for
Speaker 1: another and maybe three or four months after that. But yeah,
Speaker 1: there was There was fifty seven I think trademarks that
Speaker 1: have been filed in Jamaica that that hadn't been announced yet.
Speaker 1: If I could put it like that in thirty seconds,
Speaker 1: and we will continue with with more of this, Michael.
Speaker 1: But why is it so important? These names are not
Speaker 1: exactly surprising names or inventive names. Why the intense secrecy
Speaker 1: around them. Well, Apple likes to keep everything about its
Speaker 1: product launch secret. It likes to keep product details secret,
Speaker 1: and so it's got protected. You know, it's gone after
Speaker 1: people who leaked that data, and so the name is
Speaker 1: also very important, and so I think it's part of
Speaker 1: an overall plan so that even though the iPhone seven
Speaker 1: is not terribly uh secret, uh, you know, surprising that
Speaker 1: other ones might be. And so they really want to
Speaker 1: keep a stream going. We're talking with Michael Risch, professor
Speaker 1: at Villanova University School of Law, and Brian Conroy, commercial
Speaker 1: and trademark solicitor at Rennick Solicitor about Apple's quest to
Speaker 1: have the names of its iPhones and other products secret
Speaker 1: until the reveal comes on stage. Michael, we just heard
Speaker 1: about how um Brian got the information ahead of time
Speaker 1: from the Jamaica Trademark Office, and then the Jamaica Trademark
Speaker 1: Office changed its its rules and and the way it
Speaker 1: did things in order to help to keep things more private.
Speaker 1: But what interest do trademark offices haven't keeping secrecy? Isn't
Speaker 1: the reason they have these databases is for the public
Speaker 1: to be able to review them. Right that It's it's
Speaker 1: a mixed bag. So the political economy here is pretty clear.
Speaker 1: Jamaica is getting these filings, uh, and so it wants
Speaker 1: to keep getting the filings, and therefore it's going to
Speaker 1: do things that helped to keep getting the filings. On
Speaker 1: the other hand, if you clamp down on searches too much,
Speaker 1: then you're basically useless as a as its trademark office.
Speaker 1: That said, the types of searches most trademark applicants do
Speaker 1: are not the types of searches that people are doing
Speaker 1: when they're trying to figure out what Apple is going
Speaker 1: to name its new product. That kind of a search
Speaker 1: is sort of a broad exploratory search. You're looking for
Speaker 1: searches within a certain time period. You're looking for searches
Speaker 1: filed by certain companies, maybe with certain lawyers, but you
Speaker 1: don't because you're looking for shell companies. But you don't
Speaker 1: need any of that. If you're searching a trademark office
Speaker 1: just to see whether you're infringing somebody's trademark, all you
Speaker 1: really need to do is search on the name that
Speaker 1: you're interested in using, and Jamaica allows you to do that.
Speaker 1: If you come up with new widget two point oh,
Speaker 1: you can say to Jamaica, I want to see if
Speaker 1: anybody else's trademarked widget two point oh, and they say, no,
Speaker 1: nobody has, and you can file your trademark. Uh. But
Speaker 1: that doesn't help very much when you're trying to guess
Speaker 1: what Apple is going to name their next product. Unless
Speaker 1: I guess you could ask them, hey, I want a
Speaker 1: trademark iPhone ten? Is anybody trademark that so? So? Brian?
Speaker 1: How is it now very difficult or impossible if it's
Speaker 1: a Jamaican filing to figure out what the next name
Speaker 1: is going to be if it's filed in Jamaica. I
Speaker 1: think the answer is yes, because, as the other guys mentioned,
Speaker 1: unless you speculatively search for iPhone X or for anything
Speaker 1: you think it might be UM, then you're not gonna
Speaker 1: be able to find it. So what I did previously
Speaker 1: was exactly as he said. I did a search for
Speaker 1: all trademarks filed by Apple in the six months prior
Speaker 1: to their launch event, and I got a list of
Speaker 1: them all. And you just can't do that anymore, I
Speaker 1: would say, just on the iPhone thing, they don't always
Speaker 1: register the iPhone name. So they've iPhone seven and seven
Speaker 1: plus registered I think four C and six, but not
Speaker 1: all of them, which they don't need to do because
Speaker 1: once they have iPhone in the bag, the number that
Speaker 1: comes after it isn't that important from a trademark point
Speaker 1: of view. Did they ever go after you? Did anyone
Speaker 1: fin any lawsuit again? You or anything? God, I hope not.
Speaker 1: Well if if, if this is a surprise way of
Speaker 1: telling me I'm being served. No, I just wanted to
Speaker 1: know they don't like leakers. And well it's not a
Speaker 1: leak though everything that I published as a matter of
Speaker 1: public record, you see, there's nothing wrong with us. I mean,
Speaker 1: just because the way the Jamaican office works. I mean,
Speaker 1: if you file an application in the States, everyone will
Speaker 1: be able to see it about four days from now,
Speaker 1: even though you won't get it for possibly months. In Europe,
Speaker 1: it's even quicker. If you file an EU application now,
Speaker 1: in about two hours, anyone will be able to find it,
Speaker 1: so you know it's there at the time. At least
Speaker 1: it wasn't against the rules of the office. So no, no,
Speaker 1: there's been nothing. Okay, So, Michael, you were talking about
Speaker 1: Apple's history of going after leakers. Is there besides this
Speaker 1: reveal that they want to do on stage? And as
Speaker 1: I mentioned, the names that they've come up with, some
Speaker 1: are not really all that inventive in my mind. But
Speaker 1: is there an effect of an early reveal of the
Speaker 1: name on foreign markets? There can be, but only if
Speaker 1: they didn't file um, only if they didn't file for
Speaker 1: the trademark rights, which sometimes you hear about. So some
Speaker 1: foreign markets are register only in the US you have
Speaker 1: to actually have an intent to use or actually be
Speaker 1: using the mark in order to get protection for it.
Speaker 1: But in China, for example, you can register a mark
Speaker 1: whether or not you have any intent to use it,
Speaker 1: and within you have like three years to show whether
Speaker 1: you're using it or not. And so what you find
Speaker 1: is that if people are not careful about registering and
Speaker 1: their name gets out, then somebody else can beat them
Speaker 1: to the punch. Now, for Apple, the the real problem
Speaker 1: would be is if the name leaked out before they
Speaker 1: filed it with some trademark office somewhere, because even China
Speaker 1: is a member of the Paris Convention and we'll give
Speaker 1: you priority to your foreign filing. But if the name
Speaker 1: leaked out even before then, uh, then somebody could rush
Speaker 1: to China and file trademark application and this has been
Speaker 1: known to happen, lock basically lock US companies out. Well,
Speaker 1: I'm going to be very disappointed if it's called iPhone
Speaker 1: X or iPhone pro because those are the names that
Speaker 1: have been have been around. Thank you both so much.
Speaker 1: It's been very interesting. That was Michael Rish she's a
Speaker 1: professor at Villanova University School of Law and Brian Conroy's
Speaker 1: Commercial and trademark solicitor at Rennick Solicitor