Posted by: goalpath | August 18, 2009

What do iPhone Apps, Flatulence and Trademark Issues Have in Common?

Folks, you can’t make this stuff up. Here is yet another candidate for my 2009 WTF Award. If I were to tell you that there are over 200 iPhone apps available that produce farting noises, would you be surprised? It never ceases to amaze me how far we have come since the invention of the telephone. Alexander Graham Bell is no doubt spinning in his grave as I write about this story.

A quote from Wired magazine illustrates the depths our national psyche has descended to when it states, “The producer of a farting iPhone app is making a legal stink over another flatulence app in a looming trademark battle over the phrase, ‘pull my finger’.” The trademark suit was initiated by Air-O-Matic of Florida, the maker of the popular ‘Pull My Finger’ app. Air-O-Matic claims that the maker of the rival iFart Mobile application has misappropriated the phrase ‘pull my finger’ in its advertisements.

David Kravets, the author of the Wired article couldn’t stop with the puns and bodily function references when he went on to write, “Such an assertion, according to iFart Mobile maker InfoMedia of Colorado, reeks of misunderstanding of American fart culture.” I guess he just couldn’t let go of this issue.

InfoMedia’s attorney, Kevin Houchin, explained that the ‘pull my finger’ phrase and derivations are generally known and widely understood in American culture as a prank regarding flatulence. The prankster requests the unsuspecting victim to pull his or her finger, and once the digit is pulled the prankster expels an inordinate amount of gas. Consequently, the phrase is understood to be a description of passing gas.

So there you have it. Teenage pranks have moved into the technology world and have brought about trademark infringement cases dealing with flatulence. In this case, the uses of keywords or phrases that have otherwise been thought to be part of the public domain have provided the ammunition for a lawsuit in Federal court. AOM attorney Karen Koster Burr wrote “InfoMedia’s efforts have been directed at merging ‘Pull My Finger’ and ‘iFart’ in the consumers minds, so that searches for ‘Pull My Finger’ pull up the iFart application. AOM is demanding $50,000 payment for damages.

On a more serious note, trademark issues have been gaining momentum since the internet came on line. I can tell you from personal experience that setting up a web site, web business or web app requires some serious trademark research and even then there is no guarantee that you won’t be slapped with an infringement suit and taken to court. When we set up our web community we thoroughly researched our domain name. Yet, 6 months after our launch we were contacted by a law firm, told that we were in violation of their client’s trademark and that we had better cease and desist using that derivation of their mark. Otherwise, they were ready to take us to court.

 There are a number of considerations that you should take into account if you are in violation of someone’s trademark. First, do they have a legitimate case against you? Are the trademark names identical or just similar? Second, how big an organization are you dealing with and how deep are their pockets. In our case, I really didn’t believe their case was that strong, but our adversary was a global conglomerate with very deep pockets. My company, on the other hand, was a small startup and we really didn’t have the legal resources to take them on in court. 

Fortunately for us, we did our homework and found another domain name that was actually more appropriate, and more in keeping with our value proposition, than our original mark. Since we had only been around for a few months and the transition to the new name was an easy one, we bit the bullet and changed it. In our case, discretion was the better part of valor and we worked through this issue successfully. So, if you are slapped with a trademark infringement suit, it doesn’t necessarily mean you are out of business.

What’s your take on this issue? Have you been sued for trademark infringement? Do you have a story you can tell about trademark issues. What do you think about the fight for iPhone superiority in the flatulence application business? Inquiring minds want to know. Comment on Linkedin and/or on my web site, http://www.BoomerOpinion.com. We are always looking for Baby Boomers with an opinion that don’t mind speaking out and can successfully complete a sentence.

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