Flaherty ads could draw Apple’s ire

July 10, 2009
By

JOHN RUCH

In the most attention-getting advertising campaign of this year’s Boston mayoral race, candidate Michael Flaherty likens himself to slick new technology—including Apple, Inc.’s popular iPod and iPhone devices.

But the ads could draw attention of another kind—a trademark violation complaint from Apple, according to a prominent Boston attorney who specializes in intellectual property issues.

Apple frowns on anyone else depicting its products in advertisements, and recently trademarked the dis-tinctive shape of its iPod music player, according to attorney William Boesch of Sugarman, Rogers, Barshak & Cohen.

California-based Apple, Inc. did not respond to Gazette questions about Flaherty’s ads.

Flaherty spokesperson Natasha Perez said his campaign was well aware of legal issues and deliberately used photos of the devices that were “stripped” of Apple’s corporate logo. The photos also were licensed from a commercial photo library called Stockphoto.com, she said.

“That’s one thing we definitely checked. You don’t want to spend that kind of money and then have [the ads] pulled down,” Perez said.

“I am sure there are those who would like [the ad campaign] to stop, who hope we weren’t careful,” Perez said, adding that incumbent Mayor Thomas Menino’s organization “could go after us that way.”

But, Boesch said, licensed and logo-free photos still do not make the ads automatically immune to a pos-sible Apple trademark challenge.

Boesch and Jerry Cohen of Burns & Levinson, another attorney with trademark expertise, both said Flaherty could make a strong case that his use of Apple product images is “fair use” under federal law and does noth-ing to harm Apple’s image.

“I think it’s OK,” Cohen said in a Gazette interview. “No harm, no foul.”

But that might not stop Apple, Boesch wrote in an e-mail to the Gazette. “Still, it seems quite possible to me that Apple might complain, and if it did, I suspect Flaherty would conclude…that the battle was not worth fighting,” he said.

Flaherty is himself an attorney, but his practice is in business and real estate law.

The ads are part of Flaherty’s “Good. Better.” campaign, where the 16-year incumbent Menino is depicted as “good” but old and Flaherty as “better” and new. The final ad in the series shows photos of both candi-dates.

But the earlier ads likened Menino to outdated technological devices, such as a Sony Walkman tape player, and Flaherty to cutting-edge devices.

Those devices include the iPod and the iPhone, a cell phone. The devices are not labeled in any way, but are clearly intended to be recognized as the highly popular Apple devices. The iPod in Flaherty’s ad is blue, with the familiar shape of a thin rectangle with a white circle on top. The iPhone in Flaherty’s ad has the distinctive shape of a rectangle with rounded corners and the device’s popular touch-screen, which features a Flaherty campaign logo.

The ads have appeared in virtually every visual medium, from postcards to the campaign’s web site.

“Last year, Apple obtained federal trademark registration for the shape of its iPod, and thus it could argue…that Flaherty’s use of the product images threatens to confuse consumers into thinking that Apple sup-ports or endorses Flaherty’s candidacy,” Boesch said.

Boesch noted that Apple’s corporate web site warns that Apple “does not support” other people or organi-zations using images of Apple products in publicity materials to prevent the false perception of an endorse-ment.

Cohen was more optimistic. “The products are clearly recognizable,” Cohen said, but added that the ads are a “generic” use only intended to “simply make a comparison.”

“It’s not an infringement to display it,” Cohen said of the iPod design, saying he thinks Flaherty would only have real trouble if he was attempting to manufacture fake iPods.

Cohen noted lightly that his legal opinion about Flaherty’s “clever” comparison ads is different from judging the merits of the comparison.

“He’s no spring chicken himself,” Cohen said with a laugh about Flaherty.