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Does there have to be an app for that?

Last Friday, the blogosphere exploded with the news that Apple had filed a patent application for an application that would turn a video game session into a digital comic book. This blog also covered the news, getting another two or three readers interested in the story.

But what about the rise of apps? With the ability to run software from other sources besides the Apple iTunes store, users could soon face the same performance problems that plague other gaming platforms. Certainly one major reason given for Apple’s continued control of applications running on the iPhone or iPad would be that Apple wants to ensure that everything operates well, and meets the high standards needed to be accepted into the App store.

However, legal minds may question whether Apple really needs to maintain the high level of diligence they currently enforce. Every update for iTunes requires the user to accept the newest form of the License Agreement, and licensed use of the Apple trademarks is covered in overlapping, confusing, and occasionally redundant guidelines.

It is true that Apple cannot engage in what is known as “naked licensing” where the company purports to license only the trademark, without any of the goodwill or consumer recognition built up by the company, but current US law requires only that Apple maintain standards for their licensees, and have a quality control system in place to make sure the standards are being met. As stated in Barcamerica International v. Tyfield Importers:

It is important to keep in mind that “quality control” does not necessarily mean that the licensed goods or services must be of “high” quality, but merely of equal quality, whether that quality is high, low or middle. The point is that customers are entitled to assume that the nature and quality of goods and services sold under the mark at all licensed outlets will be consistent and predictable. (emphasis in original)

Does Apple’s control over iPhone/iPad development need to be rigid to maintain consistent quality? No, of course not. The threshold could be set much lower, at mere operability instead of optimized performance, or without having an actual person review each submission for publication.

Does this mean that Apple should not exert such control? Not necessarily. Trademarks, unlike copyrights or patents, are only as valuable as the consumer’s impression of them. The standards require iPhone developers to disclaim any connection to Apple in advertising their app, and most users seem to understand that developers are independent from the mobile phone itself. It is easier to relax high standards once the need to maintain that level of scrutiny has passed than to increase the level of attention paid to the details after something goes wrong.

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Posted in Monday: Legal Landscape.