Palm recenlty sent a cease and desist letter to the developer of a webOS theme for Android. Palm argues, correctly, that it needs to protect the use of its trademark or run the risk of potentially losing it. According to trademark law, if you let people use, copy, adjust your trademark and don’t cause a stink about it, you eventually lose the legal right to seek redress when you think someone has gone too far.
Again, Palm is well within its legal rights, but we just find it humorous that Palm has a problem with a skin that makes an Android phone appear to be a Palm Pre, yet has no problem with adjusting the Palm Pre’s firmware to make it appear to be an iPod.
You can check out Palm’s full cease and desist letter after the break.
As you may be aware, Palm is the owner of the PALM name and several PALM and Palm-based trademarks, including the Palm Prē and Palm webOS marks. Palm has used the Palm name and Palm-based marks for several years in connection with handheld computing and communications devices for a variety of both personal and business uses. Since adopting the PALM mark, Palm has expended significant resources in developing consumer and industry recognition and goodwill in its valuable PALM name and trademarks.
You may not be aware that under US trademark law Palm is required to monitor the use of its name and marks by third parties, and, in some circumstances, request that companies unrelated to Palm change the way in which they are using Palm’s name or marks. Failure to do so by Palm could result not only in widespread consumer confusion but could also result in the loss of Palm’s valuable trademark rights.
To that end, Palm recently learned that you are selling an Android software application that you have dubbed the “Palm Pre Android Theme.”
We belive betterandroid.wordpress.com released a version on the Android Market. We have check and the App is Free $0.00: Updated by l3wish
According to information available on leakdroid.com and other websites on which the software is advertised or discussed, the application enables Android users to simulate the user interface of the Palm Prē.
While Palm appreciates that imitation is the most sincere form of flattery, we are concerned that the use of the name “Palm Pre Android Theme” for your product is likely to cause people to erroneously assume that your application is sponsored, authorized or has been approved by Palm, or that you have, or your company has, a relationship with Palm. Creation of such consumer confusion would constitute an infringement of Palm’s well-established trademark rights.
Adding to this potential for consumer confusion is the fact that you have copied and are displaying images of the Palm Prē user interface complete with numerous icons. This material is protected by federal copyright law. Palm is the exclusive owner of the rights to such images, and they may not be used or reproduced without Palm’s express written permission. The unauthorized use of these images by you in connection with the Palm Pre Android Theme application is very likely to cause consumers to assume that the application has been authorized, sponsored or endorsed by Palm when in fact, until very recently, Palm had no knowledge of this product and clearly has not authorized it.
We request that you immediately cease distributing the Palm Pre Android Theme application and cease using the Palm Pre Android Theme name and any other Palm or Palm Pre-based product names. We also demand that you immediately remove the application and any advertisements regarding the application from any website on which they appear.
Without further investigation, Palm is willing to assume that you did not use Palm’s copyrighted images or adopt the Palm Pre Android Theme name with the intention of infringing Palm’s copyright rights or trading on the goodwill that Palm has developed in its valuable PALM and Palm Prē marks. Palm would prefer to resolve this matter amicably and without the need to resort to other legal remedies. However, we must receive written confirmation by ** **, 2009 that you will cease using the Palm Pre Android Theme name, as well as any other Palm or Palm Prē-based names for current or future software products, and that you will cease use and distribution of the Palm Prē user interface. Your failure to provide the requested written confirmation of this request in a timely fashion would suggest your intention to willfully infringe Palm’s trademark and copyright rights and could subject you to significant damages.
Palm reserves all of its rights concerning this matter, such as the right to demand that the infringing material be taken down from the leakdroid.com or any other website, pursuant to the Digital Millennium Copyright Act of 1998.
Thank you for your attention to this matter. If you wish to discuss this matter further, you may contact me at (408) 617-**** or via email to ****.***@palm.com.
Mary Adams Lawley
(408) 617-** (phone)
(408) 617-** (fax)