"Tower Defense" is now up for CP Infringement

[slashandburn]

Hello,

I just got a odd notice from apple and here is the excerpt and my response.

...Additionally, your application appears to contain features, namely a trademark name, that appears to infringe on rights owned by Com2us corporations, specifically TowerDefense.

Please remember that pursuant to your agreement with Apple, you represent and warrant that your application does not infringe the rights of another party, and that you are responsible for any liability to Apple because of a claim that your application infringes another party's rights. Moreover, we may reject or remove your application for any reason, in our sole discretion.

Upon resubmission of your application, please provide documentary evidence that you have the rights to use this content to ensure compliance with the iPhone Developer Program License Agreement at the time you resubmit your new binary to iTunes Connect.

And my response

Hello,

We are going to upload a new binary of "Port Defender" within the hour, but we would like to take a moment to dispute the claim that "Port Defender – 2D Tower Defense" infringes upon "TowerDefense", a competing tower defense game available on the app store.

Point 1: Port Defender has been available in the App Store since March 17, 2009, and TowerDefense has been on the App Store Since September 24, 2009. Port Defender has a 5 month lead on TowerDefense, and if there is any infringement they copied the moniker from our title.

Point 2: Tower Defense as a phrase is a genre, not a single product. Just like the words baseball, football, soccer, crossword and tile matching are all considered public domain words, can be used as a title of products, but are not trademark-able.

Point 3: It would not be reasonable for a NFL Licensed Football game to change their title because another developer later released a game named "Football".

Point 4: The phrase "Tower Defense" is also used in the App Store to display the "Best Tower Defense games", just like how currently "Best Swinging Games" is displayed on the Games page of the App Store. The phrase as listed in point 2 is a genre, like in music you can’t own the trademark to Jazz, Blues, or Country, but you can combine with another word or phrase to make something unique.

Conclusion: We like to have Tower Defense in our games title, it helps distinguish it as a pure Tower Defense game, and not a subgenre Castle Defense or Defense game. At minimal we have a 5 month lead ahead of the competition, and there are many other competing games, such as "Tower Defense Evo", "SG Tower Defense", "Magical Tower Defense", "Paper War Tower Defense", "Hexagram – Tower Defense" and "Exal Tower Defense" that all have "Tower Defense" in their title and we have no legal challenge to their titles, since Tower Defense is not a trademark and is public domain. We could change to "Port Defender – Intranet Defense", but players would not understand the title and may instead buy a competing "??? Tower Defense" game when they are looking for a Tower Defense game.

Thanks,
Michael Fuller

Please comment, I would hate for a bad looking game to "Own" the phrase "Tower Defense" in the app store.

[cidneytouch]

I think you points are valid. Keep it up with apple and Com2us.

[MrBlue]

Incredible.

The first time I heard of the name "Tower Defense" used was in 2002 in Warcraft 3 custom maps. I'm sure it was used earlier than that as well. If it comes down to it, hire a trademark lawyer. You should be able to get a lawyer for less than a grand.

edit:
http://tess2.uspto.gov/bin/showfield...002:mmtsnb.4.2

I found that they did actually file with the USPTO for their mark "Tower Defense". I think this becomes a bit more complicated for you. From personal experience, one of my other ventures also faced the same problem for what we thought was a generic name. Our lawyer friend said we would probably win in court, but going to court would cost us far in excess of what it cost to settle. In the end, we paid 5% of profits to that point and changed the name of our app.

edit2:
1. Take the most popular apps in the app store.
2. Release an similar app with a similar name
3. Register with the USPTO
4. Get Apple to remove all the competition.
5. Profit!!!

[DaveLev]

Point 4 seems the more ironic point ... Apple use it their selves on the App Store!

I think you were totally right to send a reply back pointing out what you did. I'm intrigued as to what Apple will reply with!

[EssentialParadox]

The terrible reality of the App Store right now is that Apple would still remove your App, even though your points are all hugely valid.

I know Apple won't remove it, as you've agreed to change the name. But if you had decided to fight, they would've removed it.

The problem is Apple don't want to get involved "legally" — even when the evidence is obvious. So they'll remove the app to be on the safe side. The problem is this can cause a huge disruption to someone's chart position in the store and a loss of sales. It also means anyone can issue an infringement claim on any reason and Apple will abide.

I really believe Apple should change this policy. If the defendant disputes the infringement claim, Apple should leave the app up until the claimant gets a court order to remove it. Apple have proved they have no legal responsibility here, so they also shouldn't have a responsibility to remove apps without a court order. Apple really need some kind of legal arbitrator to decide when an app is clearly infringing against another, when an app clearly isn't infringing another, or when it's a grey area. This is one of those obvious situations when it clearly isn't.

I don't currently have an app on iTunes, so I don't really have any grounds for doing this, but I recommend you try emailing sjobs@apple.com about this situation - it's rare to get a reply, but in exceptional cases you will get a high level of support. I would also contact Apple Customer Service and ask to speak to Apple Customer Relations — they're a higher level than customer service and can do extraordinary things.

[dawvee]

Considering that they actually own the US trade mark for "Tower Defense" covering the relevant classes, Apple may have little choice in the matter. They're required to comply with existing laws, and as of right now the law is on their side.

It's quite likely that you could get their trade mark revoked on the grounds stated (it's a general descriptive term, and has been in use as such since at least 2002), but that would mean challenging their trade mark in court. You could also contact developers of other tower defense games on the app store and see if they've been affected too. If they've messed with any of the bigger players (EA, Gameloft, etc.), those proceedings may already be in the works.

[sam the lion]

wow... com2us made some amazing games. I really hope they won't follow the horrible path traced by Tim Langdell and MumboJumbo.

[slashandburn]

My only guarentee is, if I change my apps name, I will slander com2us with map parodys and creative dialog.

[Sinecure Industries]

Geez, that's some underhanded stuff. What about games described as "tower defense" ... are they next?

[MikeSz_spokko]

seems like you're not the only one who has had his app chopped out of appstore today...

http://www.app-vault.com/blog/app-re...f-competition/

stil - your case is way way more spectacular fail (on Apple side of course) than what can be found in the link I provided...