This is the complete opinion of Justice Mann. If you've been following this case (for 20 years), it's an interesting read. Some highlights, starting with the one i found most crucial This is ultimately a matter of impression. I must look at the mark with the eyes of a reasonable and sensible user and determine what impression would be given. Such a user would be familiar with the notion of buying recordings of creative works from a retailer, and would be capable of not seeing any other association between retailer and the music other than that arising out of the sale itself. That is what happens in shops. The same user would be likely to be familiar (at least nowadays) with other download services (for example Napster, or Real) where downloads of similar material are available and where the service's logo features on the webpages from which the downloads take place, or within the downloading window. In my view the presence of a logo which is the logo of the download service would not be likely to be taken by such a user, without more, as a sort of trade association with the content beyond that of being a retailer. That is not, in my view, the sort of association that falls within the TMA. A retailer offers goods which have originated from others, very often under the mark of others. In doing so, and in advertising his sales service by the copious use of his own mark, he does not suggest that the goods are his in terms of trade origin or trade source, particularly if the originator's mark is used.
The judge effectively states that the Apple Computer logo can't reasonably be construed to be applied to the music content itself. On the matter of establishing the baseline for addressing the claimed breaches Before deciding whether any given acts are breaches it is necessary to ascertain what the TMA means. The parties do not agree about this, and I can summarise the arguments of the parties as follows. In fairness, this summary does not do justice to some of the subtleties of the arguments, but an outline suffices for present purposes. Both parties submitted that the position is simple and straightforward, which is a pretty good indication that it is not.
Emphasis mine... i thought that was telling, and humorous. Lastly, and this has no real bearing, but I found it interesting, the Judge lightly castigates Apple Corps manager Aspinall, saying, He professed not to be a technical man, and professed no affinity with computers whatsoever. I think that he sought to portray himself as somewhat more naïve about and ignorant about technological issues than is really the case. I do not consider that he can have successfully carried out his job for as many years as he has held it had he been quite as distanced from these things as he sought to portray in the witness box. While I accept that basically he is not a technical man (and there is no reason why he should be) I think him capable of a greater grasp of these things than he wished to demonstrate.
Ha! Of course, Apple Corps has pledged to appeal, which is expected, but at any rate, and all Mac love aside, I think this appears to be a reasonable decision, and I hope it stands. |