This is an apple. Some people might try to tell you that this is a banana. They might scream banana, banana, banana. Over and over and over again. They might put BANANA in all caps. You might even start to believe that this is a banana. But it's not. This is an apple. Now, why would I subject our dear readers to one of the most insultingly patronizing, insipid advertisements ever run by a news organization, nevermind CNN? Because it does make at least one point relatively well: apples are not bananas. Logic holds, therefore, that if apples are not bananas, they are also quite unlikely to be grapes, or kiwis, or, say, pears.And, yet, it appears that Apple, tech manufacturer most notable for making rounded corners, would like to attempt to animate CNN's commercial into some flavor of real life. See, Apple has decided to oppose a recipe app's logo because it consists of the shape of a pear. Prepear (groan) must have assumed that everyone would agree that we could tell fruits apart with the following logo.
In an Instagram post, the app's developer said Apple has objected to the firm's logo, claiming that the pear used is "too close" to the Apple logo and hurts the Apple brand. The filing also cites brand confusion and dilution caused by "blurring." According to the publication, the trademark was filed in 2017 and accepted by the US Trademark Office. It was only on the last day possible for objections to be filed that Apple did so.
This is a pear. Some enormous corporations might tell you morons in a hurry would think it was an apple. They might scream apple, apple, apple. Over and over and over again. They might put their apple next to your pear and insist they look alike. You might even start to believe that someone out there could mistake the pear for the apple. But they won't. Because a pear is not a fucking apple.Also because the logos don't actually look anything alike. The color scheme is wildly different, the drawing lines totally distinct, and the style fully unique. There is literally no reason to think there is any chance of confusion here, not to mention that the companies are quite distinct in how the public perceives their product offerings.But, of course, trademark bullying doesn't work on the merits. It works on the size of the legal war chest.
"To fight this it will cost tens of thousands of dollars," Prepear claims. "The CRAZY thing is that Apple has done this to dozens of other small business fruit logo companies, and many have chosen to abandon their logo or close doors."Prepear has launched a change.org petition in an attempt to convince Apple to drop legal action as the process reaches the discovery phase, a particularly expensive part of the process. The company has only five members and says that fighting Apple on this matter could cost tens of thousands of dollars.
Yeah. And, unless Prepear gets some kind of rescue here, the most likely scenario is that it will need to change its logo. Losing all kinds of time and money in developing its branding. Or, it can risk bankrupting itself by fighting back.Trademark bullying works. Again, not because of any legitimate legal or market concern. But purely as a matter of who can fight the fight and who cannot.
Todesign better regulation for the Internet, it is important tounderstand two things: the first one is that today's Internet,despite how much it has evolved, still continues to depend on itsoriginal architecture; and, the second relates to how preserving thisdesign is important for drafting regulation that is fitfor purpose.On top of this, the Internet invites a certain way of networking -let's call it the Internet way of networking. There are manytypes of networking out there, but the Internet way ensuresinteroperability and global reach, operates on building blocks thatare agile, while its decentralized management and general purposefurther ensure its resilience and flexibility. Rationalizing this,however, can be daunting because the Internet is multifaceted, whichmakes its regulation complicated. The entire regulatory processinvolves the reconciliation of a complex mix of technology and socialrules that can be incompatible and, in some cases, irreconcilable.Policy makers, therefore, are frequently required to make toughchoices, which often manage to strike the desired balance, while,other times, they lead to a series of unintended consequences.Europe'sGeneral Data Protection Regulation (GDPR) is a good example. Thepurpose of the regulation was simple: fix privacy by providing aframework that would allow users to understand how their data isbeing used, while forcing businesses to alter the way they treat thedata of their customers. The GDPR was set to create much-neededstandardsfor privacy in the Internet and, despite continuous enforcement andcompliance challenges, this has majorly been achieved. But,when it comes to the effect it has had on the Internet, the GDPR hasposed some challenges. Almost two months after going into effect, itwas reportedthat more than 1000 websites were affected, becoming unavailable toEuropean users. And, even now, two years after, fragmentationcontinues to be an issue.So,what is there to do? How can policy makers strike a balance betweenaddressing social harms online and policies that do not harm theInternet?A starting point isto perform a regulatory impact assessment for the Internet. It atestedmethod of policy analysis, intended to assist policy makers in thedesign, implementation and monitoring of improvements to theregulatory system; it provides the methodology for producing highquality regulation, which can, in turn, allow for sustainabledevelopment, market growth and constant innovation. A regulatoryimpact assessment constitutes a tool that ensures regulation isproportional(appropriate to the size of the problem it seeks to address),targeted(focused and without causing any unintended consequences),predictable(it creates legal certainty), accountable(in terms of actions and outcomes) and, transparent(on how decisions are made).Thistype of thinking can work to the advantage of the Internet. TheInternet is an intricate system of interconnected networks thatoperates according to certain rules. It consists of a set offundamental properties that contribute to its flexible and agilecharacter, while ensuring its continuous relevance and constantability to support emerging technologies; it is self-perpetuating inthe sense that it systematically evolves while its foundation remainsintact. Understanding and preserving the idiosyncrasy of the Internetshould be key in understanding how best to approach regulation.Ingeneral, determining the context, scope and breadth of Internetregulation is important to determine whether regulation is needed andthe impact it may have. Asking questions that under normalcircumstances policy makers contemplate when seeking to make informedchoices is the first step. These include: Does the proposed new rulesolve the problem and achieve the desired outcome? Does it balanceproblem reduction with other concerns, such as costs? Does it resultin a fair distribution of the costs and benefits across segments ofsociety?Is it legitimate, credible and, trustworthy? But, there should be anadditional question: Does the regulation create any consequences forthe Internet?Activelyseeking answers to these questions is vital because regulation isgenerally risky, and risksarise from acting as well as from not acting.To appreciate this, imagine if the choices made in the early days ofthe Internet dictated a high regulatory regime in the deployment ofadvanced telecommunications and information technologies. TheInternet would, most certainly, not be able to evolve the way it hasand, equally the quality of regulation would suffer.Inthis context, the scope of regulation is important. The fundamentalproblem with much of the current Internet regulation is that it seeksto fix social problems by interfering with the underlying technologyof the Internet. Across a wide range of policymaking, we know thatsolely technical fixes rarely fix social problems. It is importantthat governments do not regulate aspects of the Internet that couldbe seen as compromising network interoperability, to solve societalproblems. Thisis a "category error" or, more elaborately, amisunderstanding of the technical design and boundaries of theInternet. Such a misunderstanding tends to confuse the salientsimilarities and differences between the problem and where thisproblem occurs; it not only fails to tackle the root of the problembut causes damage to the networks we all rely on. Take, for instance,data localization rules, which seek to force data to remain withincertain geographical boundaries. Various countries, most recentlyIndia,are tryingto forcibly localize data, and risk impeding the openness andaccessibility of the global Internet. Data will not be able to flowuninterrupted on the basis of network efficiency; rather, specialarrangements will need to be put in place in order for that data tostay within the confines of a jurisdiction. The result will beincreased barriers to entry, to the detriment of users, businessesand governments seeking to access the Internet. Ultimately, forceddata localization makes the Internet less resilient, less global,more costly, and less valuable.Thisis where a regulatory risk impact analysis can come in handy.Generally, what the introduction of a risk impact analysis does isthat it shows how policy makers can make informed choices about howsome of the regulatory claims can or cannot possibly be true. Thiswould require a shift in the behavior of policy makers from solelyfocusing on process to a more performance-oriented and result-basedapproach.Thissounds more difficult than it actually is. Jurisdictions around theworld are accustomed to performing regulatory impact assessmentswhich has successfully been integrated in many governments' policymaking process for more than 35 years. So, why can't it be partof Internet regulation?Dr. Konstantinos Komaitis is the Senior Director, Policy Strategy and Development at the Internet Society.
